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Lisa J. CEFARATTI v. Jonathan S. ARANOW et al.

Cefaratti v. Aranow

2016-06-14

No. 19444.

837

849

138 A.3d 837

138

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

2021-09-08T21:16:17.237805+00:00

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Lisa J. CEFARATTI v. Jonathan S. ARANOW et al.

Lisa J. CEFARATTI v. Jonathan S. ARANOW et al. No. 19444. Supreme Court of Connecticut. Argued Jan. 21, 2016. Decided June 14, 2016. Ellen M. Costello, New Haven, for the appellants (named defendant et al.). Kelly E. Reardon, with whom, on the brief, was Robert I. Reardon, Jr., New London, for the appellee (plaintiff). ROGERS, C.J., and PALMER, ZARELLA, McDONALD, ESPINOSA, ROBINSON and VERTEFEUILLE, Js. ROGERS C.J. The issue that we must resolve in this certified appeal is whether the plaintiff's medical malpractice action is barred by the statute of limitations or, instead, the statute of limitations was tolled under the continuing course of treatment doctrine. The plaintiff, Lisa J. Cefaratti, brought this action against the defendants, Jonathan S. Aranow, Shoreline Surgical Associates, P.C. (Shoreline), and Middlesex Hospital (Middlesex), alleging that Aranow had left a surgical sponge in the plaintiff's abdominal cavity during gastric bypass surgery. She further alleged that Middlesex was both directly liable for its own negligence and vicariously liable for Aranow's negligence, and Shoreline was vicariously liable for Aranow's negligence. Thereafter, Middlesex filed a motion for summary judgment claiming, among other things, that the claims against it were barred by the applicable statute of limitations, General Statutes § 52-584. Aranow and Shoreline subsequently filed a joint motion for summary judgment raising the same claim. The trial court concluded that the direct claims against Aranow and Middlesex were barred by the statute of limitations and, therefore, the derivative claims against Middlesex and Shoreline were also barred. Accordingly, the trial court rendered judgment for the defendants, and the plaintiff appealed to the Appellate Court, which reversed the judgment of the trial court on the ground that there was a genuine issue of material fact as to whether the statute of limitations had been tolled by the continuing course of treatment doctrine. Cefaratti v. Aranow, 154 Conn.App. 1, 22, 105 A.3d 265 (2014). We then granted Aranow and Shoreline's petition for certification to appeal from that ruling, limited to the following issue: "Did the Appellate Court properly apply the 'continuing course of treatment' doctrine in determining what constitutes an 'identifiable medical condition' under that doctrine?" Cefaratti v. Aranow, 315 Conn. 919, 919-20, 107 A.3d 960 (2015). We answer that question in the affirmative and, therefore, affirm the judgment of the Appellate Court. The record, which we view in the light most favorable to the plaintiff for purposes of reviewing the trial court's rendering of summary judgment, reveals the following facts and procedural history. On December 8, 2003, after having diagnosed the plaintiff as being morbidly obese, Aranow performed gastric bypass surgery on the plaintiff at Middlesex. Thereafter, the plaintiff had follow-up appointments with Aranow on January 14, 2004, May 11, 2004, October 22, 2004, May 10, 2005, November 16, 2005, December 17, 2007 and March 20, 2009. The plaintiff testified at her deposition that, starting approximately one year after her surgery, she began to experience uncomfortable sensations in her abdomen. She described the sensations as follows: "When [the sponge] was in there it was so large that I could barely bend over without it getting caught on my ribs and the pain was very, very intense. I felt like I was carrying a child in my abdomen." She further stated that she felt that "something was pushing out ... and it felt like somebody was stabbing me.... [W]henever I had to have a bowel movement it felt like somebody was twisting something inside of me...." The plaintiff testified that she described these sensations exactly to Aranow at every appointment, except perhaps the first two. On August 6, 2009, after being diagnosed with breast cancer by another physician, the plaintiff underwent a computerized tomography (CT) scan of her chest, abdomen and pelvis. The CT scan revealed the presence of foreign material in the plaintiff's abdominal cavity. On September 9, 2009, the plaintiff met with Aranow, who informed her that the object in her abdominal cavity was a surgical sponge. After the sponge was surgically removed, she no longer had the sensations of having something caught on her ribs and of carrying a child. On August 18, 2010, the plaintiff brought a medical malpractice action alleging that Aranow had negligently failed to remove the surgical sponge from her abdominal cavity during the gastric bypass surgery, and that Middlesex and Shoreline were both directly liable for their own negligence and vicariously liable for Aranow's negligence. Thereafter, Middlesex filed a motion for summary judgment claiming that, because the plaintiff had not brought the action within the three year statute of repose provided for in § 52-284, the action was barred. The defendants filed a separate motion for summary judgment raising the same claim. The plaintiff opposed the motions, claiming, among other things, that the statute of limitations was tolled by the continuing course of treatment doctrine. The trial court observed in its memorandum of decision that, to establish the elements of the continuing course of treatment doctrine, the plaintiff was required to prove: "(1) that ... she had an identified medical condition that required ongoing treatment or monitoring; (2) that the defendant provided ongoing treatment or monitoring of that medical condition after the allegedly negligent conduct, or that the plaintiff reasonably could have anticipated that the defendant would do so; and (3) that the plaintiff brought the action within the appropriate statutory period after the date that treatment terminated." (Footnotes omitted.) Grey v. Stamford Health System, Inc., 282 Conn. 745, 754-55, 924 A.2d 831 (2007). The trial court concluded that the identified medical condition at issue in the present case was the sponge in the plaintiff's abdomen and, because the plaintiff did not know about that condition, she could not have sought treatment for it. Accordingly, it concluded that the doctrine did not apply and the action was, therefore, barred by the statute of limitations, entitling the defendants to summary judgment. The plaintiff appealed from the judgment to the Appellate Court. The Appellate Court concluded that the plaintiff's morbid obesity was an identified medical condition for purposes of the continuing course of treatment doctrine and that there was a genuine issue of material fact as to whether Aranow had provided ongoing treatment for that condition. Cefaratti v. Aranow, supra, 154 Conn.App. at 21-22, 105 A.3d 265. Accordingly, it concluded that there was a genuine issue of material fact as to whether the continuing course of treatment doctrine tolled the statute of limitations; id., at 22, 105 A.3d 265 ; and reversed in part the judgment of the trial court. Id., at 45, 105 A.3d 265. This certified appeal followed. The defendants contend that the Appellate Court incorrectly determined that the plaintiff's morbid obesity was an identified medical condition for purposes of the continuing course of treatment doctrine. Rather, the defendants contend, the plaintiff's identified medical condition was either the retained surgical sponge, for which the plaintiff could not have sought treatment because she was unaware of it, or the plaintiff's morbid obesity, which was not an identified medical condition for purposes of the doctrine because it did not have any connection to the injury of which she complained. The plaintiff contends that she sought treatment both for her morbid obesity and for postoperative complications, such as her abdominal discomfort. Accordingly, she contends, her abdominal discomfort was an identified medical condition for purposes of the doctrine. In turn, the defendants respond that this claim fails because the plaintiff was required to and did not establish a connection between the medical condition for which she sought treatment-her abdominal discomfort-and the alleged negligence-leaving the sponge in the plaintiff's abdominal cavity. They further contend that, even if there is evidence that the sponge caused the plaintiff's abdominal discomfort, the plaintiff cannot prevail because she has not alleged or presented evidence that Aranow's continuing failure to diagnose the true cause of her discomfort was negligent. We conclude that, to establish that there are genuine issues of material fact as to whether the continuing course of treatment doctrine tolled the statute of limitations, the plaintiff was required only to present evidence that her abdominal discomfort was caused by the sponge and that she sought continuing treatment for her discomfort from Aranow. We further conclude that the plaintiff has established that there is a genuine issue of material fact as to whether the doctrine applies. "The standard of review of a trial court's decision granting summary judgment is well established. Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.... The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.... Our review of the trial court's decision to grant the defendant's motion for summary judgment is plenary.... On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court." (Citation omitted; internal quotation marks omitted.) Gold v. Greenwich Hospital Assn., 262 Conn. 248, 253, 811 A.2d 1266 (2002). "[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.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 321, 77 A.3d 726 (2013). Thus, in the present case, because there is no dispute that the plaintiff filed her complaint after the limitations period set forth in § 52-584 had expired, the burden is on the plaintiff to establish that there is a genuine issue of material fact as to whether the statute of limitations was tolled by the continuing course of treatment doctrine. We begin our analysis with a review of our case law involving the continuing course of treatment doctrine. "As a general rule, [t]he [s]tatute of [l]imitations begins to run when the breach of duty occurs." (Internal quotation marks omitted.) Grey v. Stamford Health System, Inc., supra, 282 Conn. at 751, 924 A.2d 831. "We have ... recognized, however, that the statute of limitations, in the proper circumstances, may be tolled under the continuous treatment ... doctrine, thereby allowing a plaintiff to commence his or her lawsuit at a later date." (Internal quotation marks omitted.) Id. Under that doctrine, "[s]o long as the relation of physician and patient continues as to the particular injury or malady which [the physician] is employed to cure, and the physician continues to attend and examine the patient in relation thereto, and there is something more to be done by the physician in order to effect a cure, it cannot be said that the treatment has ceased." (Internal quotation marks omitted.) Id. As we have indicated, to establish the elements of the continuing course of treatment doctrine, a plaintiff is required to prove: "(1) that he or she had an identified medical condition that required ongoing treatment or monitoring; (2) that the defendant provided ongoing treatment or monitoring of that medical condition after the allegedly negligent conduct, or that the plaintiff reasonably could have anticipated that the defendant would do so; and (3) that the plaintiff brought the action within the appropriate statutory period after the date that treatment terminated." (Footnotes omitted.) Id., at 754-55, 924 A.2d 831. To constitute an "identified medical condition" for purposes of the doctrine, the medical condition for which the plaintiff received ongoing treatment must be connected to the injury of which the plaintiff complains. See id., at 754 n. 6, 924 A.2d 831, citing Watkins v. Fromm, 108 App.Div.2d 233, 244, 488 N.Y.S.2d 768 (1985) ( "continuous treatment doctrine applies only to treatment for the same or related illnesses or injuries, continuing after the alleged acts of malpractice, not mere continuity of a general physician-patient relationship" [internal quotation marks omitted] ); Miccio v. Gerdis, 120 App.Div.3d 639, 640, 990 N.Y.S.2d 863 (2014) (doctrine applies "where [the physician] treated the patient continuously over the relevant time period for symptoms that are ultimately traced to [the underlying] condition [of which the plaintiff complains]"). With these principles in mind, we turn to the evidence in the present case. The plaintiff testified that, starting approximately one year after the surgery, she developed severe abdominal discomfort. She further testified that she complained to Aranow of this discomfort at each of the subsequent follow-up appointments. Finally, she testified that, after the surgical sponge was removed, a number of symptoms disappeared. On the basis of this evidence, we conclude that there are genuine issues of material fact as to: (1) whether the plaintiff's abdominal discomfort was caused by the presence of the surgical sponge and, therefore, whether it was an "identified medical condition" for purposes of the continuing course of treatment doctrine; and (2) whether the plaintiff sought continuing treatment for that medical condition. Accordingly, we conclude that the Appellate Court properly determined that there are genuine issues of material fact as to whether the continuing course of treatment doctrine tolled the statute of limitations. The defendants contend, however, that the doctrine does not apply because the plaintiff has not alleged that Aranow's treatment of her after the surgery was negligent. Specifically, they contend that she has not alleged that Aranow negligently failed to discover during the follow-up appointments that a surgical sponge had been left in her abdominal cavity during the surgery. Thus, the defendants implicitly contend that we should adopt the "single act" exception to the continuing course of treatment doctrine, under which the doctrine does not apply when the plaintiff's injury was caused by a single act of negligence rather than by a continuous course of negligent treatment. See Pastchol v. St. Paul Fire & Marine Ins. Co., 326 Ark. 140, 146, 929 S.W.2d 713 (1996) ("the continuous treatment doctrine becomes relevant when the medical negligence consists of a series of negligent acts or, a continuing course of improper treatment " [emphasis in original; internal quotation marks omitted] ); Langner v. Simpson, 533 N.W.2d 511, 522 (Iowa 1995) ("[t]o prevail under the continuum of negligent treatment doctrine, the plaintiff must show [1] that there was a continuous and unbroken course of negligent treatment, and [2] that the treatment was so related as to constitute one continuing wrong" [internal quotation marks omitted] ); Swang v. Hauser, 288 Minn. 306, 309, 180 N.W.2d 187 (1970) (doctrine does not apply when alleged tort was single act and no continued course of treatment could cure or relieve it). We disagree. Our cases have consistently stated that the policy underlying the continuous treatment doctrine seeks to "[maintain] the physician/patient relationship in the belief that the most efficacious medical care will be obtained when the attending physician remains on a case from onset to cure." (Internal quotation marks omitted.) Grey v. Stamford Health System, Inc., supra, 282 Conn. at 752, 924 A.2d 831 ; Blanchette v. Barrett, 229 Conn. 256, 276, 640 A.2d 74 (1994) ; Connell v. Colwell, 214 Conn. 242, 253, 571 A.2d 116 (1990) (same); see also Grey v. Stamford Health System, Inc., supra, at 752, 924 A.2d 831 ("[t]he doctrine rests on the premise that it is in the patient's best interest that an ongoing course of treatment be continued, rather than interrupted by a lawsuit because the doctor not only is in a position to identify and correct his or her malpractice, but is best placed to do so" [internal quotation marks omitted] ), quoting Nykorchuck v. Henriques, 78 N.Y.2d 255, 258, 577 N.E.2d 1026, 573 N.Y.S.2d 434 (1991) ; Grey v. Stamford Health System, Inc., supra, at 752, 924 A.2d 831 (policy underlying doctrine is to avoid creating "a dilemma for the patient, who must choose between silently accepting continued corrective treatment from the offending physician, with the risk that his claim will be time-barred or promptly instituting an action, with the risk that the physician-patient relationship will be destroyed" [internal quotation marks omitted] ), quoting Rizk v. Cohen, 73 N.Y.2d 98, 104, 535 N.E.2d 282, 538 N.Y.S.2d 229 (1989). In addition, we have repeatedly recognized that, "[s]o long as the relation of physician and patient continues as to the particular injury or malady which [the physician] is employed to cure, and the physician continues to attend and examine the patient in relation thereto, and there is something more to be done by the physician in order to effect a cure, it cannot be said that the treatment has ceased." (Internal quotation marks omitted.) Grey v. Stamford Health System, Inc., supra, at 751, 924 A.2d 831 ; Blanchette v. Barrett, supra, at 274, 640 A.2d 74 (same); see also Giambozi v. Peters, 127 Conn. 380, 385, 16 A.2d 833 (1940) ("when ... injurious consequences arise from course of treatment, the statute [of limitations] does not begin to run until the treatment is terminated"), overruled in part on other grounds by Foran v. Carangelo, 153 Conn. 356, 360, 216 A.2d 638 (1966). Thus, to require that the continuing treatment itself must be negligent before the doctrine can be applied would be fundamentally inconsistent with one of the primary policies underlying the doctrine, namely, to allow the patient to seek ongoing treatment for a medical condition caused by a single act of negligence. Accordingly, we decline to adopt this exception. See Nobles v. Memorial Hospital of Laramie County, 301 P.3d 517, 527-29 (Wyo.2013) (rejecting single act exception to continuing course of treatment doctrine because exception is "at odds with the basic policies at the heart of the continuous treatment rule"). The defendants also contend that, even if evidence of continuing negligence is not required, the continuing course of treatment doctrine does not apply here because "the plaintiff certainly could not have anticipated [that] the defendant would have treated her for a retained foreign object of which no one was aware." See Grey v. Stamford Health System, Inc., supra, 282 Conn. at 755-56, 924 A.2d 831 ("when the plaintiff had no knowledge of a medical condition and, therefore, had no reason to expect ongoing treatment for it from the defendant, there is no reason to apply the doctrine"). Thus, the defendants contend that a plaintiff should be required to prove that the medical condition for which continuing treatment was sought was "identified" in the sense that the plaintiff knew its true nature and cause. We disagree. Rather, we conclude that the medical condition must be "identified" in the sense that it was the specific condition that either gave rise to or was caused by the defendant's negligence. See McDermott v. Torre, 56 N.Y.2d 399, 406, 437 N.E.2d 1108, 452 N.Y.S.2d 351 (1982) ("Included within the scope of continuous treatment is a timely return visit instigated by the patient to complain about and seek treatment for a matter related to the initial treatment. Thus, there will be continuing treatment when a patient, instructed that he or she does not need further attention, soon returns to the doctor because of continued pain in that area for which medical attention was first sought." [Internal quotation marks omitted.] ); Miccio v. Gerdis, supra, 120 App.Div.3d at 640, 990 N.Y.S.2d 863 ("a physician ... cannot defeat the application of the continuous treatment doctrine merely because of a failure to make a correct diagnosis as to the underlying condition, where [the physician] treated the patient continuously over the relevant time period for symptoms that are ultimately traced to that condition"); D. Peck, "The Continuous Treatment Doctrine: A Toll on the Statute of Limitations for Medical Malpractice in New York," 49 Alb. L.Rev. 64, 77 (1984) ("Although the [defendant] may be aware that its actions caused the injury which necessitated the subsequent treatment, this knowledge is not a necessary element of affirmative treatment. The essential factor is that the subsequent treatment is related to the act or omission which gave rise to the cause of action." [Footnote omitted.] ). This conclusion "is compelled by the policy underlying the continuous treatment doctrine, i.e., that a patient should not be required to interrupt corrective medical treatment by a physician and undermine the trust in the physician-patient relationship in order to ensure a timely claim...." (Citation omitted.) Couch v. Suffolk, 296 App.Div.2d 194, 197, 746 N.Y.S.2d 187 (2002). "Although it seems incongruous that subsequent treatment can occur without affirmative action by the physician since the term treatment connotes the presence of action, in certain situations treatment can occur by omission. This treatment by omission arises when the patient returns to the treating physician complaining of problems in the mistreated area but the physician disregards the complaints. The significant factor is that even though the physician may not have provided literal treatment to the afflicted area, the patient, by returning to the physician, has provided him with an opportunity to correct his previous error." (Footnote omitted; internal quotation marks omitted.) D. Peck, supra, at 79. Thus, in the present case, the plaintiff was required only to show that there is a genuine issue of material fact as to whether her symptoms of abdominal discomfort were connected to the retained surgical sponge and that she sought treatment for those symptoms, not that she knew about and sought treatment for the presence of the sponge. Accordingly, we conclude this court's statement in Grey v. Stamford Health System, Inc., supra, 282 Conn. at 755-56, 924 A.2d 831, that "when the plaintiff had no knowledge of a medical condition and, therefore, had no reason to expect ongoing treatment for it from the defendant, there is no reason to apply the doctrine" refers either to the situation in which the plaintiff was suffering from an asymptomatic medical condition and, therefore, had no reason to seek treatment for it, or to the situation in which the plaintiff sought treatment for certain symptoms, the defendant determined that the symptoms required no further treatment and the plaintiff sought no further treatment. It does not refer to the situation in which a plaintiff continually sought treatment for symptoms related to the act of negligence for which the true cause was unknown. To the extent that the defendants contend that routine appointments can never constitute a continuing course of treatment for purposes of the doctrine, we again disagree. Rather, we conclude that routine postoperative appointments for the purpose of tracking the progress of the plaintiff's condition and postoperative complications, if any, constitute continuing treatment for any identified medical condition that was caused by the surgery. See Miller v. Rivard, 180 App.Div.2d 331, 339, 585 N.Y.S.2d 523 (1992) (routine postoperative procedures are part of same course of treatment as surgery); Callahan v. Rogers, 89 N.C.App. 250, 255, 365 S.E.2d 717 (1988) (it is irrelevant for purposes of doctrine whether postoperative appointments were initiated by plaintiff or were scheduled office visits). Of course, as with any application of the doctrine, the plaintiff must present evidence in such cases that he or she sought treatment for a specific medical condition that was related to the injury of which he or she complained. For example, in the present case, if the plaintiff had failed to present any evidence that the presence of the sponge in her abdominal cavity had caused symptoms for which she sought treatment at the follow-up appointments, the mere fact that the defendants provided ongoing monitoring of the condition that the surgery was intended to cure-the plaintiff's morbid obesity -would not have been sufficient. For the foregoing reasons, we conclude that the Appellate Court properly determined that there are genuine issues of material fact as to whether the continuing course of treatment doctrine tolled the statute of limitations. Accordingly, we affirm the judgment of the Appellate Court reversing the judgment of the trial court that the plaintiff's action was barred by the statute of limitations. The judgment of the Appellate Court is affirmed. The relevant complaint has four counts. The first count is against "Jonathan S. Aranow, M.D. of ... Shoreline...." The second count is against Middlesex. The third count is against "Middlesex ... and Aranow ... [respondeat] [s]uperior." The fourth count is against Shoreline. Both the first and the fourth count allege that Aranow is Shoreline's employee but, unlike the third count, they do not expressly allege that Shoreline is vicariously liable for Aranow's negligence under the doctrine of respondeat superior. Because the trial court apparently assumed that that was the case, and the defendants do not contend otherwise, we also make that assumption. Middlesex also claimed that the plaintiff did not have a viable claim of vicarious liability against it because Aranow was not its actual agent or employee and the doctrine of apparent agency is not recognized in tort actions in this state. The trial court agreed with Middlesex and granted its motion for summary judgment on the vicarious liability claim. The plaintiff appealed to the Appellate Court, which affirmed the judgment of the trial court. Cefaratti v. Aranow, 154 Conn.App. 1, 45, 105 A.3d 265 (2014). We then granted the plaintiff's petition for certification to appeal on the following issue: "Did the Appellate Court properly conclude that the doctrine of apparent authority does not apply to actions sounding in tort?" Cefaratti v. Aranow, 315 Conn. 919, 107 A.3d 960 (2015). In the companion case of Cefaratti v. Aranow, 321 Conn. 593, 141 A.3d 752 (2016), issued on the same date as this opinion, we answer that question in the negative and conclude that the case must be remanded so that the plaintiff may have an opportunity to present evidence sufficient to create a genuine issue of material fact under our newly adopted standard for establishing apparent agency in a tort action. The plaintiff has not claimed on appeal to the Appellate Court or to this court that the continuing course of treatment doctrine tolls the statute of limitations with respect to her claim that Middlesex is directly liable for its own negligence. Accordingly, the trial court's summary judgment rendered in favor of Middlesex on that count still stands. See Cefaratti v. Aranow, supra, 154 Conn.App. at 6 n. 3, 105 A.3d 265 ("Count two of the complaint is not at issue in this appeal.... Any possible negligence on the part of [Middlesex] is not at issue on appeal."). To the extent that the plaintiff claims that Shoreline is directly liable for its own negligence before and during the surgery, any such claim is also barred for the same reason. As we have explained, the only remaining claim against Middlesex is that it is vicariously liable for Aranow's negligence. See footnote 3 of this opinion. Middlesex did not join in the present appeal, presumably because the derivative claim against it would be barred if this court were to agree with Aranow and Shoreline that the claim against Aranow is barred. For convenience, we hereinafter refer to Aranow and Shoreline as the defendants. The plaintiff filled out a questionnaire at each of the follow-up appointments that specifically asked whether she was suffering from abdominal pain. She indicated that she had abdominal pain only on the questionnaire for the November 16, 2005 appointment. The plaintiff explained at her deposition that she did not indicate that she had abdominal pain on the other questionnaires because she "didn't consider it at that time to be abdominal pain, and the way I described [it] to [Aranow] was different than what I would describe [as] abdominal pain." Although it is not absolutely clear, the plaintiff's deposition testimony strongly implies that she underwent surgery to have the surgical sponge removed. Specifically, she stated that "[w]hen the sponge was in there" she had a specific type of discomfort, and that she had not had that type of discomfort "[s]ince the surgery...." The plaintiff's attorney confirmed at oral argument before this court that the sponge was surgically removed two years after it was discovered. General Statutes § 52-584 provides: "No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, 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, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed." Accordingly, we reject the defendants' contention that "[t]here was not one scintilla of evidence in this case that the alleged abdominal pain was ultimately traced to the retained sponge." There is sufficient evidence to create an issue of fact as to whether the sponge caused the discomfort given that some of the discomfort disappeared after the sponge was removed. Sherman v. Bristol Hospital, Inc., 79 Conn.App. 78, 89, 828 A.2d 1260 (2003) ("An exception to the general rule with regard to expert medical opinion evidence is when the medical condition is obvious or common in everyday life.... Similarly, expert opinion may not be necessary as to causation of an injury or illness if the plaintiff's evidence creates a probability so strong that a lay jury can form a reasonable belief." [Citations omitted; internal quotation marks omitted.] ). Although we conclude in this opinion that it is not necessary for a plaintiff to prove that there must be a continuing failure to diagnose in order for the doctrine to apply, in her opposition to the defendants' motion for summary judgment, we note that the plaintiff contended that the defendants "continually breached their duty from 2003 to 2009 by failing to properly examine and follow up with the [p]laintiff to determine that a surgical sponge had been left behind." In other words, the plaintiff contended that the defendants' failure to diagnose the true nature of her condition constituted continuing negligence. The only evidence that the plaintiff cited to support this claim, however, was Aranow's deposition testimony that a sponge had been left in the abdominal cavity of a former patient and that he had discovered the sponge several years after the surgery when he ordered a CT scan. We conclude that this evidence is not sufficient to raise a genuine issue of material fact as to whether Aranow breached the governing standard of care when he failed to diagnose the plaintiff's true condition when she complained of abdominal discomfort after the appeal. Rather, the plaintiff was required to present expert testimony as to whether Aranow breached the standard of care. See Doe v. Yale University, 252 Conn. 641, 687, 748 A.2d 834 (2000) ( "[e]xcept in the unusual case where the want of care or skill is so gross that it presents an almost conclusive inference of want of care ... the testimony of an expert witness is necessary to establish both the standard of proper professional skill or care on the part of a physician"[citation omitted] ); Sullivan v. Yale-New Haven Hospital, Inc., 64 Conn.App. 750, 767, 785 A.2d 588 (2001) ("[b]ecause it was evident that the substitute plaintiff did not produce an expert witness who would have testified that the defendants had breached the standard of care in their treatment of the plaintiff, the court properly found that the defendants were entitled to judgment as a matter of law"). We recognize that our cases previously have contrasted situations in which the alleged medical malpractice was " 'a single act of a physician or surgeon' " with situations involving a " 'course of treatment.' " Blanchette v. Barrett, supra, 229 Conn. at 274, 640 A.2d 74, quoting Giambozi v. Peters, supra, 127 Conn. at 385, 16 A.2d 833. These cases also may be interpreted as suggesting that the continuing course of treatment doctrine does not apply when the only malpractice was the initial single act of negligence. Blanchette v. Barrett, supra, at 274, 640 A.2d 74 (when malpractice was single act, "[t]he [s]tatute of [l]imitations begins to run when the breach of duty occurs"); Giambozi v. Peters, supra, at 385, 16 A.2d 833 (same); Giambozi v. Peters, supra, at 384, 16 A.2d 833 ("where the injury was inflicted at the time of the operation and not occasioned by subsequent treatment or neglect, and there has been no fraudulent concealment by the surgeon, the period of limitation for actions of this kind commences from the date of the wrongful act or omission"). In Giambozi v. Peters, supra, at 385, 16 A.2d 833, however, there was no treatment at all after the initial act of negligence. Blanchette also does not definitively answer the question of whether the doctrine applies in the absence of ongoing negligence because the court in that case found both that the defendant had a continuing duty to the plaintiff after the initial act of negligence and that the defendant provided continually negligent treatment. See Blanchette v. Barrett, supra, at 279, 640 A.2d 74. Moreover, since Giambozi was decided, this court has recognized that, in addition to allowing a plaintiff to use the last date of the defendant's negligent conduct as the date that the negligence occurred, "[t]he policy underlying the continuous treatment doctrine [also] seeks to maintain the physician/patient relationship in the belief that the most efficacious medical care will be obtained when the attending physician remains on a case from onset to cure." (Internal quotation marks omitted.) Connell v. Colwell, supra, 214 Conn. at 253, 571 A.2d 116. In light of the strong policy in favor of allowing the plaintiff to seek treatment for the negligently inflicted injury, we conclude that our suggestions in Giambozi and Blanchette that, when "[t]he term malpractice ... [is] applied to a single act of a physician or surgeon ... [t]he [s]tatute of [l]imitation[s] begins to run when the breach of duty occurs"; [internal quotation marks omitted] Blanchette v. Barrett, supra, at 274, 640 A.2d 74, quoting Giambozi v. Peters, supra, at 385, 16 A.2d 833 ; were intended to apply to cases in which there has been no continuing course of treatment for an identified medical condition, negligent or otherwise. See also Gomez v. Katz, 61 App.Div.3d 108, 109-17, 874 N.Y.S.2d 161 (2009) (doctrine applied when defendant caused injury during allegedly negligent eye surgery); Jauregui v. Memorial Hospital of Sweetwater County, 111 P.3d 914, 915, 918-19 (Wyo.2005) (doctrine applied when defendant left sponge in plaintiff's shoulder during surgery), overruled on other grounds by Harmon v. Star Valley Medical Center, 331 P.3d 1174, 1184 and n. 9 (Wyo.2014). In McDermott v. Torre, supra, 56 N.Y.2d at 403, 452 N.Y.S.2d 351, 437 N.E.2d 1108 the plaintiff consulted the defendant dermatologist and requested that he examine a mole on her ankle. The defendant conducted tests and concluded that the mole did not require any treatment. Id., at 404, 452 N.Y.S.2d 351, 437 N.E.2d 1108. The plaintiff then received continued treatment for other ailments with the defendant, but received no further treatment for the mole. Id. She continued to complain, however, about pain and discoloration in her ankle. It was ultimately determined that the mole was cancerous. Id. The plaintiff brought an action against the defendant after the limitations period had expired, claiming that the continuing course of treatment doctrine applied. Id., at 404-405, 452 N.Y.S.2d 351, 437 N.E.2d 1108. The Court of Appeals of New York concluded that the fact that the defendant had continually misdiagnosed the plaintiff's condition as benign was irrelevant for purposes of the doctrine. Id., at 406, 452 N.Y.S.2d 351, 437 N.E.2d 1108. Rather, the court concluded, the dispositive question was whether the "plaintiff's concern about her ankle was one of the purposes for her subsequent visits" to the defendant. Id. Thus, the plaintiff was not required to prove either ongoing negligence or that the plaintiff and the defendant were aware of the true nature of the plaintiff's condition in order to invoke the doctrine. The defendants contend that "[t]he trial court made a finding of fact that the retained sponge was the identified medical condition," not the plaintiff's abdominal discomfort, and that we must defer to this finding. Trial courts do not make findings of fact, however, in ruling on motions for summary judgment. Rather, viewing the evidence in the light most favorable to the nonmoving party, they determine whether there are genuine issues of material fact, which is a question of law. Because this court is in as good a position as the trial court to make this determination, our review is plenary. Gold v. Greenwich Hospital Assn., supra, 262 Conn. at 253, 811 A.2d 1266. To support its conclusion that the continuing course of treatment doctrine does not apply in the present case, the trial court relied on our statement in Martinelli v. Fusi, 290 Conn. 347, 364, 963 A.2d 640 (2009), that, although evidence that the defendant was unaware of the true nature of the plaintiff's condition may indicate that the defendant was negligent, "it does not indicate that the defendant was actually aware that the plaintiff's condition required further treatment, such that an ongoing duty to diagnose and treat that condition could be imposed." That principle, however, relates to the continuing course of conduct doctrine, which is distinct from the continuing course of treatment doctrine. See id., at 357, 365-66, 963 A.2d 640 (analyzing doctrines separately); Grey v. Stamford Health System, Inc., supra, 282 Conn. at 755, 924 A.2d 831 ("the primary difference between the doctrines is that the [continuing course of treatment doctrine] focuses on the plaintiff's reasonable expectation that the treatment for an existing condition will be ongoing, while the [continuing course of conduct doctrine] focuses on the defendant's duty to the plaintiff arising from his knowledge of the plaintiff's condition" [emphasis in original] ).

6397

40208

In this opinion the other justices concurred.

12501984

A BETTER WAY WHOLESALE AUTOS, INC. v. Michael A. THIBODEAU, et al.

A Better Way Wholesale Autos, Inc. v. Thibodeau

2018-10-30

AC 40509

904

904

194 A.3d 904

194

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-09-08T21:16:17.237805+00:00

Fastcase

A BETTER WAY WHOLESALE AUTOS, INC. v. Michael A. THIBODEAU, et al.

A BETTER WAY WHOLESALE AUTOS, INC. v. Michael A. THIBODEAU, et al. AC 40509 Appellate Court of Connecticut. Argued October 16, 2018 Officially released October 30, 2018

33

207

Per Curiam. The judgment is affirmed.

12489067

STATE of Connecticut v. Gilberto O. MARRERO-ALEJANDRO

State v. Marrero-Alejandro

2017-03-14

SC 19559

1005

1006

154 A.3d 1005

154

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

2021-09-08T21:16:17.237805+00:00

Fastcase

STATE of Connecticut v. Gilberto O. MARRERO-ALEJANDRO

STATE of Connecticut v. Gilberto O. MARRERO-ALEJANDRO SC 19559 Supreme Court of Connecticut. Argued December 13, 2016 Officially released March 14, 2017 James B. Streeto, senior assistant public defender, for the appellant (defendant). Rocco A. Chiarenza, assistant state's attorney, with whom, on the brief, were Brian Preleski, state's attorney, and John H. Malone, supervisory assistant state's attorney, for the appellee (state). Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa and Robinson, Js.

548

3534

PER CURIAM. Following a jury trial, the defendant, Gilberto O. Marrero-Alejandro, was convicted of murder in violation of General Statutes (Rev. to 2009) § 53a-54a in connection with a shooting in Bristol in 2010. He was sentenced to a term of sixty years imprisonment. The defendant appealed from the judgment of the trial court to the Appellate Court, claiming, among other things, that the trial court improperly had failed to suppress certain DNA evidence obtained from a buccal swab of the defendant because the swab was taken after he had invoked his right to counsel. State v. Marrero-Alejandro , 159 Conn.App. 376, 396, 122 A.3d 272 (2015). The Appellate Court affirmed the judgment of the trial court, holding, inter alia, that the defendant's claim was unreviewable because (1) it was not preserved at trial, and (2) it failed to satisfy the second prong of State v. Golding , 213 Conn. 233, 239-40, 567 A.2d 823 (1989). State v. Marrero-Alejandro , supra, at 397-98, 122 A.3d 272. In determining that the claim was not of constitutional magnitude as required for Golding review, the Appellate Court reasoned that, because the buccal swab was not testimonial evidence, neither the fifth amendment to the federal constitution nor article first, § 8, of the Connecticut constitution was implicated as those provisions apply only to testimonial evidence. Id. Thereafter, this court granted the defendant's petition for certification limited to the following issue: "Did the Appellate Court properly uphold the trial court's denial of the defendant's motion to suppress DNA evidence obtained from a buccal swab taken after he invoked his right to counsel?" State v. Marrero-Alejandro , 319 Conn. 934, 125 A.3d 207 (2015). Our review of the record makes it apparent that this certified question does not reflect a correct statement of the issue before this court. The Appellate Court's initial conclusion was that a challenge to the admission of this evidence was unpreserved because defense counsel had informed the trial court that his motion to suppress was not directed at the buccal swab. State v. Marrero-Alejandro , supra, 159 Conn.App. at 397, 122 A.3d 272. The defendant does not challenge that conclusion in his certified appeal. Therefore, we have reformulated the certified question as follows: Did the Appellate Court properly conclude that the defendant's unpreserved challenge to the trial court's admission of the buccal swap did not present a question of constitutional magnitude? See State v. Ouellette , 295 Conn. 173, 184, 989 A.2d 1048 (2010) (reformulating certified question to conform to issue actually presented and decided in appeal); Rosado v. Bridgeport Roman Catholic Diocesan Corp. , 276 Conn. 168, 191, 884 A.2d 981 (2005) (same). After examining the entire record on appeal and considering the briefs and oral arguments of the parties, we have determined that the appeal in this case should be dismissed on the ground that certification was improvidently granted. The appeal is dismissed.

12489090

ARS INVESTORS II 2012-1 HVB, LLC v. CRYSTAL, LLC, et al.

ARS Investors II 2012-1 HVB, LLC v. Crystal, LLC

2017-02-28

SC 19661

518

525

154 A.3d 518

154

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

2021-09-08T21:16:17.237805+00:00

Fastcase

ARS INVESTORS II 2012-1 HVB, LLC v. CRYSTAL, LLC, et al.

ARS INVESTORS II 2012-1 HVB, LLC v. CRYSTAL, LLC, et al. SC 19661 Supreme Court of Connecticut. Argued November 15, 2016 Officially released February 28, 2017 James M. Nugent, with whom, on the brief, was James R. Winkel, for the appellant (named defendant). Gerald L. Garlick, for the appellee (substitute plaintiff). Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa and Robinson, Js.

3685

22589

McDONALD, J. In this appeal, we consider whether a trial court may render a judgment of foreclosure on mortgaged property that consists of parcels of land within a subdivision that has not been approved by municipal zoning authorities. We conclude that our law permits a trial court to order foreclosure in such circumstances. I The parties stipulated to the facts relevant to this appeal, which we summarize as follows. The named defendant, Crystal, LLC, is the owner of real property located at 314 Wilson Avenue in Norwalk. After acquiring ownership of the property, Crystal filed a site plan application with the city of Norwalk to consolidate numerous preexisting parcels within the property into two parcels. The city approved the site plan and Crystal filed a map reflecting the site plan on the city's land records. Approximately twelve years later, Crystal filed a subdivision map on the land records that purported to subdivide the property into three new parcels, identified as tracts I, II, and III (revised subdivision map). Crystal, however, did not obtain permission from city planning and zoning authorities before filing the revised subdivision map. Two months later, Crystal obtained a mortgage loan in the amount of $6 million from a predecessor-in-interest to the substitute plaintiff, HVB-CT SUB, LLC. The mortgage loan was secured by a mortgage on tracts I and III, as depicted in the revised subdivision map, and the parties executed a mortgage deed that described the mortgaged property by reference to the revised subdivision map on file. After the closing of the mortgage loan, however, the city notified Crystal that it had not approved the revised subdivision map and ordered Crystal to refile on the land records the earlier site plan map depicting the previous division of the property. Crystal refiled the earlier site plan map, although the revised subdivision map depicting tracts I, II, and III also remains filed on the city's land records. Several years later, Crystal defaulted on the mortgage loan, and the plaintiff's predecessor-in-interest commenced this action to foreclose on the mortgage. The promissory note and mortgage deed were later assigned to the plaintiff, who was substituted as the plaintiff in the foreclosure action. Crystal objected to the foreclosure by way of special defenses. In a pretrial memorandum, Crystal principally argued that the trial court, as a matter of law, could not foreclose a mortgage deed that mortgaged a parcel of real property in an unapproved subdivision. According to Crystal, a judgment of foreclosure would have the effect of "validating" an illegal subdivision of property. Because, as Crystal asserted, the mortgage deed was invalid as executed, Crystal argued that the plaintiff could not foreclose on the mortgage without first asking the trial court to reform the mortgage deed, such that the boundaries of the mortgaged property conformed to the parcels in the original, approved site plan map. The plaintiff disagreed and in its pretrial memorandum argued that the tracts of land could properly be the subject of a foreclosure judgment because they existed in fact and were adequately described in the revised subdivision map, as incorporated into the mortgage deed. According to the plaintiff, whether the tracts were part of an approved subdivision was relevant only for zoning purposes, and did not affect whether those tracts could be mortgaged and subject to foreclosure. The plaintiff also argued that, because it was clear that the parties intended to mortgage tracts I and III, and that such a mortgage is valid, it had no need to seek reformation of the mortgage deed. After a trial to the court on stipulated facts and exhibits, the trial court rendered judgment in favor of the plaintiff and ordered a strict foreclosure of tracts I and III, as depicted in the revised subdivision map. In an articulation of the basis for its decision, the court explained that it had concluded that it could order foreclosure because the land consisting of tracts I and III existed in fact and was sufficiently described in the mortgage deed. The court further explained that "[t]he fact that the land described in the mortgage deed may not constitute a legal lot under local zoning regulations is not relevant to the plaintiff's right to foreclose. The court is unaware of any legal precedent [that] bars the holder of an otherwise valid mortgage from foreclosing on land [that] is not in compliance with local zoning regulations." Lastly, the court explained that it had rejected Crystal's argument that the plaintiff was required to seek reformation of the mortgage deed before seeking foreclosure because reformation was unnecessary under the circumstances. The trial court also noted that if Crystal had truly thought reformation was required, it could have sought that relief itself, but had chosen not to do so. Crystal appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court. See General Statutes § 51-199 (c) ; Practice Book § 65-1. II On appeal, Crystal renews its argument that the trial court was barred from rendering a judgment of foreclosure as a matter of law because the mortgaged property consists of parcels in an unapproved subdivision. We reject this claim. Before turning to the reasons for our conclusion, we first set forth our standard of review. An action to foreclose on a mortgage is an equitable proceeding, and the trial court enjoys broad discretion in considering whether to grant a mortgagee the remedy of foreclosure for the default of a mortgage loan. New Milford Savings Bank v. Jajer , 244 Conn. 251, 256 and n.11, 708 A.2d 1378 (1998). We thus ordinarily review a trial court's decision to grant foreclosure for an abuse of discretion. Reynolds v. Ramos , 188 Conn. 316, 320, 449 A.2d 182 (1982). When, however, the claims on appeal are not targeted at the trial court's exercise of discretion, but at a subsidiary legal conclusion, our review is plenary. See, e.g., Commissioner of Correction v. Coleman , 303 Conn. 800, 810, 38 A.3d 84 (2012) ("[h]ow a court balances the equities is discretionary but if, in balancing those equities, a trial court draws conclusions of law, our review is plenary" [internal quotation marks omitted] ). In the present case, Crystal's challenge to the trial court's conclusion that the court may order a foreclosure notwithstanding the unapproved subdivision of the property attacks a legal conclusion by the trial court, and thus presents a question of law. Our review of this claim is, therefore, plenary. A In support of its claim on appeal, Crystal relies on General Statutes § 8-25 (a), which provides in relevant part that "the filing or recording of a subdivision plan without [approval by the city] shall be void." According to Crystal, because the subdivision on which the mortgage was based was not approved by the city, § 8-25 (a) renders the subdivision void as a matter of law for all purposes. As a consequence, Crystal claims, any parcels of land created by that map cannot legally exist, and thus cannot be subject to foreclosure. To allow such a foreclosure, Crystal claims, would effectively validate an illegal subdivision of property. We disagree. Section 8-25 does not prohibit the mortgaging of parcels in an unapproved subdivision or prevent the court from ordering a foreclosure of those parcels. Looking to the text of § 8-25 (a), we agree that by its plain language; see General Statutes § 1-2z ; the statute renders an unapproved subdivision plan "void." We disagree, however, that this nullification applies beyond the context of municipal zoning purposes to also preclude the transfer of ownership in an unapproved subdivision. As a general matter, the zoning statutes and municipal zoning regulations govern the use of property, but do not prevent its transfer to a new owner. Grillo v. Zoning Board of Appeals , 206 Conn. 362, 368, 537 A.2d 1030 (1988) ("[t]he zoning regulations do not purport to restrict transfers of land, but only the uses to be conducted thereon"). Section 8-25 is no exception. An owner of a parcel in an unapproved subdivision might be prevented from certain uses of the property as a result of its unapproved status, but nothing in § 8-25 otherwise prohibits or voids the sale of an unapproved parcel. To the contrary, § 8-25 expressly contemplates that lots in an unapproved subdivision might nevertheless be transferred, permitting a fine of up to $500 for each parcel sold. General Statutes § 8-25 (a) ("[a]ny person, firm or corporation making any subdivision of land without the approval of the commission shall be fined not more than five hundred dollars for each lot sold " [emphasis added] ). Despite allowing for a fine, § 8-25 prescribes no other consequence. Because § 8-25 accepts that unapproved parcels may be transferred, and does not bar such transfers, we discern no basis in the text of § 8-25 to limit either the ability of an owner of such a parcel from mortgaging it, or the ability of a mortgagee to foreclose on an unapproved parcel. Indeed, a different statute, commonly known as a validating act, explicitly validates any mortgage on a parcel of land in an unapproved subdivision. General Statutes § 47-36aa provides in relevant part: "(b) Insubstantial defects. Any . mortgage . made for the purpose of . mortgaging . any interest in real property in this state recorded after January 1, 1997, which instrument contains any one or more of the following defects or omissions is as valid as if it had been executed without the defect or omission . (4) The instrument conveys an interest in a lot or parcel of land in a subdivision that was not submitted for approval or that was submitted for approval but was not approved ." Because the legislature has expressly validated such mortgages, it would strain reason to conclude that this purported defect nevertheless prevents a mortgagee from foreclosing on its valid mortgage interest. Such a conclusion would altogether defeat the effect of this validating provision, and we do not construe statutes in a manner that will render them ineffective. See, e.g., Rainforest Cafe, Inc. v. Dept. of Revenue Services , 293 Conn. 363, 377-78, 977 A.2d 650 (2009). Nor is it of any consequence that the mortgage deed identified the mortgaged property by reference to an unapproved subdivision map. Here again, § 47-36aa (b) expressly validates such mortgages. That section provides in relevant part that a mortgage deed remains valid even if "[t]he instrument transfers an interest in land by reference to a filed map or subdivision plan and the map or plan does not comply as to preparation, form, certification, approval or filing with any requirement of any special or general law, municipal ordinance or regulation ." General Statutes § 47-36aa (b) (3). Under the express language of this section, the plaintiff's mortgage on tracts I and III remains valid despite the parties' reference to an unapproved subdivision map. Thus, although the map may be void inasmuch as it indicates that the property is part of a valid subdivision, § 47-36aa (b) (3) nevertheless expressly permits its use as a means to identify the location of the mortgaged property. We therefore conclude that the trial court may render a judgment of foreclosure on a mortgage deed even though it transfers an interest in parcels in an unapproved subdivision of land. B In further support of its claim to the contrary, Crystal also relies on two cases from the Appellate Court, but those cases are inapposite to the present circumstances. Crystal first relies on Redding v. Elfire, LLC , 74 Conn.App. 491, 812 A.2d 211 (2003). In that case, the town sought to foreclose a tax lien to recover unpaid property taxes on a parcel of property. Id., at 492-93, 812 A.2d 211. The parcel was part of a subdivision, and the location of the parcel was depicted on an approved subdivision map filed on the land records. Id., at 493, 812 A.2d 211. In its assessment and in its amended foreclosure complaint, however, the town used a description of the property from a different , unapproved subdivision map, which depicted a different location for the subject parcel. Id., at 494, 812 A.2d 211. Despite this discrepancy, the town sought, and the trial court ordered, a foreclosure in accordance with the property description in the unapproved map. Id., at 495, 812 A.2d 211. On appeal to the Appellate Court, the defendant argued that the judgment of foreclosure must be reversed because of the discrepancy in the property's description. Id., at 495-97, 812 A.2d 211. Specifically, the defendant argued that the unapproved map did not depict the true boundaries of the subject parcel, and thus the town could not rely on it for tax assessment purposes. Id., at 496-97, 812 A.2d 211. The defendant asserted that, by permitting foreclosure using the description from the unapproved map, rather than the approved description, the trial court had essentially allowed the town to foreclose on the wrong property, using a map not valid for tax assessment purposes. Id. The Appellate Court agreed with the defendant and concluded that the trial court had improperly ordered a foreclosure in light of the conflicting descriptions of the property. Id., at 497, 812 A.2d 211. The Appellate Court explained: "[T]his court declines to affirm the foreclosure judgment because it is based on what appears to be an incorrect description of the subject property in an illegal map." Id. In a footnote, the Appellate Court further explained: "If we were to affirm the judgment, we would be validating an illegal map and permitting an incorrect description of the subject property to be placed in the land records. That likely would mislead title searchers and create title problems. Despite the plaintiff's urging, we decline to compromise the sanctity of title by clouding the marketable title of the property in that manner." Id., at 497, 812 A.2d 211 n.6. In the present case, Crystal seizes upon the Appellate Court's concern for validating an illegal map to argue that the trial court's foreclosure judgment in the present case also validates an illegal subdivision map, rendering the judgment improper. Crystal further argues that affirming the foreclosure judgment based on an unapproved map would create confusion about the property's location on the land records. We disagree with both contentions. First, contrary to Crystal's arguments, the decision in Elfire, LLC , does not establish that the foreclosure judgment in the present case is improper. Elfire, LLC , involved the foreclosure of a tax lien, and the town in that case had improperly used a map that was not valid for tax assessment purposes and contained an incorrect property description, to nevertheless determine the location of the property for assessment and, ultimately, foreclosure. Id., at 493-97, 812 A.2d 211. The Appellate Court was thus concerned that allowing foreclosure would give recognition to a map that was otherwise not a valid basis for a tax assessment. Id., at 496-97, 812 A.2d 211. The foreclosure action in the present case, however, is based on a mortgage deed, and the legislature has expressly validated mortgage deeds that mortgage parcels in an unapproved subdivision and that rely on unapproved subdivision maps to describe mortgaged property. General Statutes § 47-36aa (b) (3) and (4). The revised subdivision map otherwise remains invalid for city zoning purposes, and the trial court's foreclosure judgment does not alter its status for those purposes. A change in ownership alone ordinarily does not effect a change in zoning status. See Builders Service Corp. v. Planning & Zoning Commission , 208 Conn. 267, 285, 545 A.2d 530 (1988) ("[z]oning is concerned with the use of property and not primarily with its ownership" [internal quotation marks omitted] ). The plaintiff in the present case has conceded in its brief and at oral argument that foreclosure of the property will not require the city to recognize the unapproved subdivision of the property or permit the plaintiff to use the property as if it had been properly subdivided. See General Statutes § 8-25 (requiring municipal zoning approval for use of property as subdivision). Second, unlike in Elfire, LLC , the trial court's foreclosure judgment will not create confusion on the land records. There is no evidence that the mortgage deed or the revised subdivision map reflects an incorrect description of the property. The parties have stipulated that the mortgage deed identifies the mortgaged property as tracts I and III on the revised subdivision map. Neither party has claimed that the property description based on the revised subdivision map is unclear, or that the mortgaged property actually consists of property other than that described as tracts I and III. Consequently, the location of the property mortgaged and subject to the foreclosure judgment is clear on the land records. To the extent that the marketability or utilization of the property is affected by the invalid subdivision, that problem was created by the parties, not the trial court's judgment of foreclosure. Crystal also cites Voluntown v. Rytman , 21 Conn.App. 275, 573 A.2d 336, cert. denied, 215 Conn. 818, 576 A.2d 548 (1990), in support of its claim, but the circumstances in that case bear no resemblance to those in the present case. In Rytman , a defendant in a tax foreclosure action asked the trial court to order foreclosure of only a portion of the defendant's property to satisfy a tax debt as an alternative to foreclosing on the entire property. Id., at 278, 573 A.2d 336. The trial court declined, and instead ordered foreclosure of the entire property. Id. The trial court reasoned that it did not have sufficient information before it concerning the property to allow it to divide the property for sale, noting that it had not been provided adequate information about the property or a subdivision plan approved by the town. Id., at 280-81, 573 A.2d 336. The Appellate Court affirmed the trial court's exercise of discretion for the reasons given by the trial court. Id. Crystal relies on Rytman to argue that a court cannot order foreclosure of a parcel in a larger piece of property in the absence of an approved subdivision plan, but Rytman does not stand for that proposition. It holds only that a trial court may exercise its discretion to decline to order partial foreclosure when it lacks sufficient information to partition prudently the property-an otherwise unremarkable conclusion given the broad equitable discretion given to trial courts in considering the remedy in foreclosure actions. New Milford Savings Bank v. Jajer , supra, 244 Conn. at 256, 708 A.2d 1378 ; Reynolds v. Ramos , supra, 188 Conn. at 320, 449 A.2d 182. We therefore find this case also to be unhelpful to Crystal's claims. C Lastly, Crystal asserts that, as a prerequisite to foreclosure, the plaintiff was required to seek reformation of the mortgage deed. Specifically, Crystal claims that because the mortgage was invalid, the plaintiff could not obtain foreclosure without first seeking to reform the mortgage deed to coincide with the approved subdivision of the property. We disagree. Reformation is appropriate only when the deed executed by the parties does not reflect the agreement the parties actually intended. "A cause of action for reformation of a contract rests on the equitable theory that the instrument sought to be reformed does not conform to the real contract agreed upon and does not express the intention of the parties and that it was executed as the result of mutual mistake . We have held that this also applies to actions for reformation of a deed . the function of which is merely to pass title to land, pursuant to the agreement of the parties. . Reformation is not granted for the purpose of alleviating a hard or oppressive bargain, but rather to restate the intended terms of an agreement when the writing that memorializes that agreement is at variance with the intent of both parties ." (Citations omitted; internal quotation marks omitted.) Lopinto v. Haines , 185 Conn. 527, 531-32, 441 A.2d 151 (1981). In the present case, Crystal has not provided any evidence to show that the original parties to the mortgage deed intended anything other than the agreement reflected in the mortgage deed. Moreover, as we have explained, and contrary to Crystal's assertions, the mortgage deed was valid even though it conveyed parcels in an unapproved subdivision. See General Statutes § 47-36aa (b) (3) and (4). Although the parties to the mortgage deed may have been unaware of the zoning status of the property, the record demonstrates that the parties entered into a valid agreement and that the mortgage deed reflects the parties' intended bargain, even if that bargain failed to account for the property's zoning deficiencies. We therefore reject Crystal's assertion that reformation was a necessary, or even permissible, prerequisite to foreclosure. The judgment is affirmed and the case is remanded for further proceedings according to law, including setting new law days. In this opinion the other justices concurred. The complaint also named Mario DeVivo, The Original Grasso Construction, Inc., Joseph M. Grasso and ARS Investors II 2012-1 HVB, LLC, as defendants, but they are not parties to this appeal. The site plan map was recorded on March 28, 1996, and is identified on the city land records as map no. 11567. The revised subdivision map was recorded on February 7, 2008, and is identified on the city land records as map no. 13077. The mortgage loan was made by Hudson Valley Bank to Crystal. Hudson Valley Bank later assigned its mortgage interest to the named plaintiff, ARS Investors II 2012-1 HVB, LLC, who in turn assigned the interest to the substitute plaintiff, HVB-CT SUB, LLC. For simplicity, we refer to HVB-CT SUB, LLC, as the plaintiff in this opinion. Crystal granted a mortgage on tract II to Mario DeVivo, who is not a party to this appeal. See footnote 1 of this opinion.

12489100

Peter SZYNKOWICZ v. Linda BONAUITO-O'HARA

Szynkowicz v. Bonauito-O'Hara

2016-10-19

AC 38198

61

73

154 A.3d 61

154

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-09-08T21:16:17.237805+00:00

Fastcase

Peter SZYNKOWICZ v. Linda BONAUITO-O'HARA

Peter SZYNKOWICZ v. Linda BONAUITO-O'HARA AC 38198 Appellate Court of Connecticut. Submitted on briefs October 19, 2016 Officially released January 10, 2017 Steven P. Kulas filed a brief for the appellant (plaintiff). Elizabeth S. Bennett filed a brief for the appellee (defendant). DiPentima, C. J., and Lavine and Pellegrino, Js. DiPENTIMA, C. J. The plaintiff, Peter Szynkowicz, appeals from the judgment rendered in favor of the defendant, Linda Bonauito-O'Hara, doing business as Linda's Team, William Raveis. The underlying dispute arose when the plaintiff and the seller, Edward Development Company, LLC, entered into a dual agency agreement naming Brenda Hanley, a realtor who worked for the same real estate company as the defendant, to act as their dual agent in connection with locating, purchasing and developing the property known as Lot 7 Meadow Brook Drive in East Haddam. After entering into the dual agency agreement, the plaintiff entered into a real estate contract with the seller to develop a single-family home on the property, which was subsequently cancelled when the seller was unable to complete construction. The plaintiff commenced this action against the defendant, whom the plaintiff alleges was also a party to the dual agency agreement, for the return of his deposited moneys advanced to the seller upon the advice of the defendant. On appeal, the plaintiff claims that the court erred in granting (1) the motion to strike count five of his complaint because he adequately had alleged an action for breach of an oral contract against the defendant, and (2) the motion for summary judgment because genuine issues of material fact exist as to the defendant's liability under counts one, two, three and four of his complaint. We affirm the judgment of the trial court. The following facts and procedural history are relevant to our determination of this appeal. On October 5, 2012, the plaintiff commenced this action against the defendant with a five count complaint. In ruling on the motion to strike, the court, Zemetis, J., succinctly set forth the factual allegations of the complaint: The plaintiff alleged that he "and the defendant entered into a dual agency agreement on May 2, 2008, in connection with the defendant aiding the plaintiff in locating, purchasing and developing a piece of real property known as Lot 7 Meadow Brook Drive, East Haddam, Connecticut .... The defendant and its employees knew or should have known that the seller of the property was having financial difficulties when the dual agency agreement was entered into because the defendant was the seller's exclusive broker. The defendant failed to disclose the seller's financial difficulties to the plaintiff, despite the duty to do so. After entering the dual agency agreement, the plaintiff entered into a [purchase agreement] with the seller to develop a single family home on the property. After signing the purchase agreement, the defendant repeatedly represented to the plaintiff that the defendant would be able to obtain financing for the plaintiff and failed to disclose the seller's shaky financial condition. The defendant encouraged the plaintiff [to] remain in the deal after he had offered to withdraw. Based on his reliance on the defendant's representations that the seller was in good financial condition, the plaintiff advanced money to the seller in connection with the construction project. On November 25, 2008, the [dual agency] agreement was cancelled because the seller was unable to complete construction. The defendant, although having a duty to disclose the seller's financial difficulties, never did so." The plaintiff's complaint contained five counts. Count one alleged that the defendant's failure to disclose information about the seller's financial difficulty constituted a breach of the defendant's contract with the plaintiff. Count two alleged that the defendant's actions in entering a dual agency agreement, i.e., a contract, with the plaintiff and failing to disclose the seller's financial difficulty constituted a breach of the implied covenant of good faith and fair dealing. Count three alleged that the defendant's actions in representing that she could obtain financing for the plaintiff, encouraging the plaintiff to stay in the deal when he offered to withdraw, and failing to disclose the seller's financial difficulty were fraudulent in connection with her duty to represent the plaintiff. Count four alleged that the defendant's actions in stating that she could obtain financing for the plaintiff, encouraging the plaintiff to stay in the deal when he offered to withdraw and failing to disclose the seller's financial difficulty violated General Statutes § 42-110b, a provision of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. Count five alleged that the defendant's actions in failing to secure the purchase and the development of the real property violated an oral agreement between the defendant and the plaintiff. On April 8, 2013, the defendant filed a motion to strike counts one, two and five on the grounds that the plaintiff had failed to allege facts to support the existence of a contract between himself and the defendant. On July 26, 2013, the court denied the defendant's motion to strike counts one and two, but granted the defendant's motion as to count five. In granting the defendant's motion to strike count five, the court noted that it could not "find that the plaintiff ... sufficiently pleaded that the defendant breached an oral contract in count five. First, [the] plaintiff has insufficiently alleged the existence of an oral contract because the plaintiff failed to allege facts pertaining to scope or terms of an oral agreement. Additionally, in count five the plaintiff has alleged no specific contractual obligation that has not been met." Accordingly, the court concluded that because "the plaintiff has failed to sufficiently allege facts implying the existence of a privity of contract between the parties and has merely alleged misrepresentations and omissions by the defendant ... count five has failed to sufficiently allege a breach of a term of that alleged oral contract ... [and] [t]he defendant's motion to strike count five is granted." Judgment was subsequently rendered in favor of the defendant on this count. Thereafter, the defendant filed an answer specifically denying the allegation that she had entered into a contract with the plaintiff. On February 13, 2014, the defendant filed a motion for summary judgment as to counts three and four of the complaint. The plaintiff filed an objection to the defendant's motion for summary judgment. On May 5, 2014, the court denied the motion "without prejudice." One year later, on February 13, 2015, the defendant filed another motion for summary judgment as to all the remaining counts of the complaint. In its July 16, 2015 memorandum of decision granting the motion for summary judgment, the court, Brazzel-Massaro, J., stated: "[T]he defendant filed a motion for summary judgment as to counts one and two of the plaintiff's complaint on the ground that there [was] no privity of contract between the plaintiff and the defendant. The defendant further [sought] summary judgment as to count three on the ground that it [was] barred by General Statutes § 52-577, and count four on the ground that it [was] barred by General Statutes § 42-110g (f). The defendant filed a memorandum [of law] in support of the motion and the [dual agency agreement], the 'Exclusive Right to Represent Buyer or Tenant Authorization' form, and the partial deposition transcript of the plaintiff. On March 18, 2015, the plaintiff filed an objection and a memorandum [of law] in support of the objection, as well as an affidavit of the plaintiff." The court further stated: "In the memorandum of law in support of the motion, the defendant argues that summary judgment as to count one and two is proper because there is no privity of contract between the plaintiff and the defendant. In particular, the dual agency agreement on which the plaintiff is basing his claims is actually a form consenting to Brenda Hanley acting as a dual agent, to which the defendant is not a party. The plaintiff counters that the actions of the parties raise factual issues as to whether the defendant was acting on behalf of the plaintiff and that the plaintiff believed at the time that the defendant was acting on his behalf. The defendant further argues that summary judgment should be granted as to count three [and count four] because the plaintiff filed his lawsuit outside the three year statutes of limitations as outlined in [§§ 52-577 and 42-110g (f) ] and that the statutes of limitations [are] not tolled. The plaintiff again counters that the statutes of limitations [were] tolled by a continuing course of conduct. The defendant contends in response that the continuing course of conduct doctrine requires the existence of a special relationship between the parties giving rise to a continuing duty and no special relationship exists because there is no privity of contract between the plaintiff and the defendant." In granting the defendant's motion for summary judgment on counts one and two, the court stated: "The defendant has met her burden of showing that there is no genuine issue of material fact that there [was] no privity of contract between the plaintiff and the defendant [and] [t]he plaintiff has provided no evidence [to rebut this]." In granting the motion for summary judgment on counts three and four, the court also stated that: "The defendant has met her burden of showing that there [was] no genuine issue of material fact that count three and count four are barred by the statutes of limitations under § 52-577 and § 42-110g (f)... [and] [t]he plaintiff has provided no evidence to rebut this finding." This appeal followed. I We decline to review the plaintiff's claim that the court erred in granting the defendant's motion to strike count five because this claim is inadequately briefed. We first note that the plaintiff has devoted less than one page to his argument on this claim. The plaintiff's analysis of this claim consists of a statement that "[a] review of count [five] of the Plaintiff's complaint, which incorporated by reference the allegation of count [one] of the Plaintiff's complaint, indicates that the Plaintiff adequately alleged an action for a breach of an oral contract against the Defendant." Where a claim is simply asserted but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned. See Bicio v. Brewer , 92 Conn.App. 158, 172, 884 A.2d 12 (2005) ; see also Braham v. Newbould , 160 Conn.App. 294, 312 n.15, 124 A.3d 977 (2015) (claim abandoned that was not properly briefed). We conclude that the plaintiff's claim is inadequately briefed and, therefore, we decline to review it. II The plaintiff next claims that the court erred in granting the motion for summary judgment because genuine issues of material fact exist regarding counts one, two, three and four of the complaint. Specifically, the plaintiff argues that the court improperly granted summary judgment because (1) there were genuine issues of material fact as to whether the parties were in privity of contract, which is required to establish count one of the plaintiff's complaint, alleging breach of contract, and count two, alleging breach of the covenant of good faith and fair dealing, and (2) he presented sufficient evidence to show the existence of a genuine issue of material fact as to whether the statutes of limitations were tolled by the continuing course of conduct doctrine applicable to count three, alleging fraud, and count four, alleging a CUTPA violation. We disagree. We begin our analysis by setting forth the well established standard of review. " Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A party moving for summary judgment is held to a strict standard.... To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact.... As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent.... Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue.... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact ... are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45].... Our review of the trial court's decision to grant [a] motion for summary judgment is plenary." (Internal quotation marks omitted.) Capasso v. Christmann , 163 Conn.App. 248, 257, 135 A.3d 733 (2016). "We therefore must decide whether the court's conclusions were legally and logically correct and find support in the record." (Internal quotation marks omitted.) Brown v. Otake , 164 Conn.App. 686, 701, 138 A.3d 951 (2016). A We first consider the plaintiff's claim that the court erred in rendering summary judgment on count one, alleging breach of contract, and count two, alleging breach of the covenant of good faith and fair dealing. The plaintiff argues that genuine issues of material fact exist as to whether the parties were in privity of contract. We disagree. We begin by setting forth the legal principles relevant to the issue before us. "[T]he obligation of contracts is limited to the parties making them, and, ordinarily, only those who are parties to contracts are liable for their breach.... In other words, [a] person who is not a party to a contract (i.e., is not named in the contract and has not executed it) is not bound by its terms." (Citation omitted; internal quotation marks omitted.) FCM Group, Inc. v. Miller , 300 Conn. 774, 797, 17 A.3d 40 (2011). "It is axiomatic that the ... duty of good faith and fair dealing is a covenant implied into a contract or a contractual relationship.... The covenant of good faith and fair dealing presupposes that the terms and purpose of the contract are agreed upon by the parties and that what is in dispute is a party's discretionary application or interpretation of a contract term.... In accordance with these authorities, the existence of a contract between the parties is a necessary antecedent to any claim of breach of the [covenant] of good faith and fair dealing ." (Citations omitted; emphasis in the original; internal quotation marks omitted.) Macomber v. Travelers Property & Casualty Corp. , 261 Conn. 620, 638, 804 A.2d 180 (2002). In its memorandum of decision, the court concluded that summary judgment was warranted on the breach of contract and breach of the covenant of good faith and fair dealing counts because "[t]he defendant has met her burden of showing that there is no genuine issue of material fact that" the parties were not in privity of contract, i.e., there is no contractual relationship. The court expressly noted that because "[t]he plaintiff has provided no evidence to show that there is a genuine issue of material fact" regarding whether there was privity of contract between the parties, he could not assert a claim for breach of contract against the defendant on the basis of the contract. The court further observed that "[s]ince a duty to act in good faith is dependent on the existence of a contract and there is not contractual privity between the plaintiff and the defendant, the plaintiff also cannot bring a claim for breach of the covenant of good faith and fair dealing against the defendant." In addition, the court emphasized: "[T]he fact that the defendant worked closely with ... Hanley or aided in the performance of the alleged [dual agency] agreement does not bring the defendant, individually, into contractual privity with the plaintiff ... [and] [w]here the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms.... Therefore, the plaintiff's subjective belief that the defendant was a party to the alleged [dual agency] agreement does not alter the clear terms naming ... Hanley, alone, as the single agent to represent both [the] seller and [the plaintiff]." (Citations omitted.) On appeal, the plaintiff claims that the court improperly concluded that he had failed to provide sufficient evidence to show the existence of a genuine issue of material fact as to whether the parties were in privity of contract because at the time he signed the dual agency agreement, he was under the belief that the defendant was representing him in the real estate transaction. In turn, the defendant argues that the court properly granted her motion for summary judgment because she submitted sufficient evidence to show that there was no genuine issue of material fact that the parties were not in privity of contract, and the plaintiff failed to meet his burden of providing evidentiary support to refute this. We agree with the defendant. The plaintiff's breach of contract and breach of the covenant of good faith and fair dealing counts indisputably rest on the allegation that the defendant was a party to the dual agency agreement to create the required privity of contract. "Contract obligations are ... owed only to the specific individuals named in the contract." (Internal quotation marks omitted.) Vaccaro v. Shell Beach Condominium, Inc ., 169 Conn.App. 21, 36, 148 A.3d 1123, A.3d (2016); see also FCM Group, Inc. v. Miller , supra, 300 Conn. at 798, 17 A.3d 40 (it is axiomatic that an action "for breach of contract may not be maintained against a person who is not a party to the contract" [internal quotation marks omitted] ); see Bruno v. Whipple , 138 Conn.App. 496, 510, 54 A.3d 184 (2012) ("a person cannot be held liable for breach of the implied covenant of good faith and fair dealing without being a party to a contract"). The defendant's documentation attached to her memorandum of law in support of the motion included a copy of the dual agency agreement, the "Exclusive Right to Represent Buyer or Tenant Authorization" form, and the partial deposition transcript of the plaintiff. The dual agency agreement provides in relevant part that: "[The plaintiff] and [the] Seller having previously consented to William Raveis Real Estate, Inc., acting as dual agents, hereby consent to: Brenda Hanley [sales associate] [a]cting as a single agent represent[ing] both [the plaintiff] and [the] Seller with negotiation of sale of Lot 7 Meadowbrook Estates." According to the terms of the dual agency agreement, the plaintiff consented to Hanley, his real estate agent, and not the defendant, to act as a dual agent on behalf of himself and the seller. The only parties named in the dual agency agreement were the plaintiff, the plaintiff's tenant, the seller and Hanley, all of whom are the only parties to have signed the dual agency agreement. The dual agency agreement did not purport to bind the defendant nor did it refer to the defendant, who was neither a signatory to the dual agency agreement nor a title holder to the property. The defendant also submitted the "Exclusive Right to Represent Buyer or Tenant Authorization" form, which appoints William Raveis Real Estate as the plaintiff's exclusive real estate Broker. This form was signed by the plaintiff and Hanley acting on behalf of William Raveis Real Estate. The defendant was neither named in nor a signatory to this form. In addition, the defendant offered the partial deposition transcript of the plaintiff, wherein the plaintiff acknowledged that he never had entered into a contract with the defendant, nor was the defendant his real estate agent. As the court properly concluded, the documentary evidence attached to the defendant's motion for summary judgment demonstrated that there was no genuine issue of material fact that the parties were not in privity of contract, and, therefore, the burden was shifted to the plaintiff to demonstrate that his allegations were supported by at least some proof. See Marinos v. Poirot , 308 Conn. 706, 715, 66 A.3d 860 (2013). To meet his burden by showing a genuine issue of material fact existed as to whether the parties were in privity of contract, the plaintiff filed an objection to the motion and an affidavit that purportedly supported the allegations in his complaint. In his affidavit, the plaintiff averred that at the time he signed the dual agency agreement, he believed that the defendant was in control of the real estate office and would supervise his real estate agent, Hanley; at one meeting, the defendant conducted all negotiations, which concerned the contract dispute between the plaintiff and the seller; the plaintiff's agent had to run everything by the defendant; and the defendant made affirmative representations concerning the seller's financial status to him. In his objection to the motion for summary judgment, the plaintiff argued that, as alleged in his complaint and supported by his affidavit, the circumstances surrounding the signing of the dual agency agreement and the actions of the defendant subsequent to the plaintiff's signing the dual agency agreement raised the same factual issue as to whether the defendant was acting on behalf of the plaintiff in the real estate transaction. The plaintiff's submissions, however, fail to demonstrate the existence of a genuine issue of material fact as to whether the parties were in privity of contract. "After the [defendant's] submission, the plaintiff's [m]ere assertion of fact became insufficient to establish the existence of a material fact, and, therefore, [could] not refute [the] evidence properly presented to the court by the [defendant]." (Internal quotation marks omitted.) Id. Therefore, the court properly granted summary judgment on these two counts. B We next consider whether the court erred in granting the defendant's motion for summary judgment on count three, alleging fraud, and count four, alleging a CUTPA violation. The plaintiff claims that the court improperly granted summary judgment on counts three and four because he presented sufficient evidence to show the existence of a genuine issue of material fact as to whether the statutes of limitations were tolled by the continuing course of conduct doctrine. We disagree. We begin by setting forth the legal principles relevant to the issue before us. "Summary judgment may be granted where the claim is barred by the statute of limitations." Doty v. Mucci , 238 Conn. 800, 806, 679 A.2d 945 (1996). With respect to count three, alleging fraud, and count four, alleging a CUTPA violation, the applicable statutes of limitations are three years pursuant to §§ 52-577 and 42-110g (f), respectively. See Krondes v. Norwalk Savings Society , 53 Conn.App. 102, 113, 728 A.2d 1103 (1999). As a general rule, the statute of limitations begins to run on the date of the act or omission complained of or when the conduct of the defendant occurs. Certain Underwriters at Lloyd's, London v. Cooperman , 289 Conn. 383, 408, 957 A.2d 836 (2008). "Nonetheless, [w]hen the wrong sued upon consists of a continuing course of conduct, the statute does not begin to run until that course of conduct is completed.... [I]n order [t]o support a finding of a continuing course of conduct that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto. That duty must not have terminated prior to commencement of the period allowed for bringing an action for such a wrong.... Where [our Supreme Court has] 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." (Internal quotation marks omitted.) Haas v. Haas , 137 Conn.App. 424, 433, 48 A.3d 713 (2012). The plaintiff claims that the court erred in failing to consider the evidence presented in his affidavit that supports his contention that the wrong committed by the defendant consisted of a continuing course of conduct, which tolled the statutes of limitations until he discovered the true facts of the seller's financial situation. The wrong alleged by the plaintiff in counts three and four arises from statements of the defendant that she could obtain financing for the plaintiff, encouraging the plaintiff to stay in the deal when he expressed a desire to withdraw and failing to disclose the seller's financial difficulty. We are not persuaded by the plaintiff's claim. In concluding that counts three and four were barred by the applicable three year statutes of limitations, the court expressly noted: "In his deposition transcript, the plaintiff admits that the last time he spoke to the defendant was in a meeting in July of 2008. The plaintiff failed to provide any evidence showing that he had contact with the defendant after the meeting in July, 2008." Also there was "no allegation in the complaint nor [was] there any evidence provided by the plaintiff that the defendant committed some wrongful act after July, 2008." "Based on these undisputed facts, the tortious conduct must have occurred in or before July, 2008. The latest the plaintiff could have brought a fraud claim and a CUTPA claim against the defendant, therefore, was in July, 2011. The plaintiff did not file this action until October 5, 2012, more than a year outside the three year statutes of limitations." In considering whether the statutes of limitations were tolled by the continuing course of conduct doctrine, we agree with the court that the defendant made the required showing that the parties were not in privity of contract. We also agree with the court's conclusion that there was "no evidence of a special relationship between the plaintiff and the defendant that would toll the statutes of limitations under the continuing course of conduct doctrine." In the absence of a special relationship between the parties, the statutes of limitations were not tolled by the continuing course of conduct doctrine. Accordingly, counts three and four were barred by the three year statutes of limitations. We, therefore, conclude that the court properly granted summary judgment on these two counts. The judgment is affirmed. Pursuant to the website for the Department of Consumer Protection: "If a real estate agent working on the sale of a particular home also represents a client who might be interested in buying that home, by law, the agent must provide both the seller and the potential buyer with a 'Dual Agency Consent Agreement' form to sign." Department of Consumer Protection, "Dual Agency," (last modified April 12, 2012), available at http://www.ct.gov/dcp/cwp/view.asp?q=502404 (last visited December 29, 2016); see also Regs., Conn. State Agencies § 20-325d-2 (b) (i) ("[a] real estate broker or real estate salesperson, when acting as a dual agent, shall make a written disclosure of dual agency to all parties by using the dual agency consent agreement"). After the plaintiff did not file a new pleading, the defendant filed a motion for judgment requesting that judgment be rendered in her favor upon the stricken fifth count of the complaint pursuant to Practice Book § 10-44. On September 8, 2015, the court, Brazzel-Massaro, J., granted the defendant's motion for judgment. We note with approval the trial court's determination that count five failed to set forth sufficiently a breach of contract action because it "merely alleged that '[t]he actions of the [d]efendant' constituted a breach of the oral contract. Count five, therefore, included no allegation specifying what provision of the oral contract was violated." As established by our case law, "[m]ere conclusions of law, without factual support, are not enough to survive a motion to strike." Keller v. Beckenstein, 117 Conn.App. 550, 565, 979 A.2d 1055, cert. denied, 294 Conn. 913, 983 A.2d 274 (2009). The following exchange occurred between the plaintiff and the defendant's counsel at the plaintiff's deposition: "Q. ... Did you ever enter into a contract with [the defendant]? "A. In light of you right now today going over this with me, her name is not on here, so I don't have a contract with [the defendant], based on these two documents. * * * "Q. But we agreed before that you don't actually have a contract with [the defendant]? "A. Right. We agreed after you brought to my attention [that the defendant's] name is not on there, therefore, I wouldn't have a contract with [the defendant]." Specifically, the plaintiff asserts that the defendant contacted the plaintiff to persuade him to finance the property through a construction loan. After declining to take out a construction loan, the plaintiff asked the defendant if the seller had sufficient resources to complete the project and the defendant replied that the seller had no financial issues. In reliance on the defendant's statement, the plaintiff advanced moneys and materials to the seller. Shortly thereafter, the seller failed to complete the contract and caused the plaintiff to lose all the moneys and materials he had advanced to the seller. The plaintiff contends, therefore, that the defendant's affirmative actions imposed an obligation to keep the plaintiff informed of the seller's financial situation. As discussed previously, the plaintiff identified two actions of the defendant to support his contention that the parties were in privity of contract. First, the court found that, at the time the plaintiff signed the contract, he believed that "the defendant was in control of the real estate office, in control of the agent that represented the plaintiff, and that the defendant was also acting on behalf of the plaintiff." Next, the plaintiff argues that the actions of the defendant, in conducting negotiations at one meeting that concerned the contract dispute between the plaintiff and the seller and the fact that the plaintiff's agent had to run everything by the defendant, raised factual issues as to whether the defendant was acting on behalf of the plaintiff. The plaintiff does not claim that the continuing course of conduct doctrine applies due to some later wrongful conduct related to the initial wrongful act or omission. Therefore, we limit our review to whether the court properly granted summary judgment in concluding that the statutes of limitations were not tolled by the continuing course of conduct doctrine because there was no special relationship between the parties. Brusby v. Metropolitan District, 160 Conn.App. 638, 662, 127 A.3d 257 (2015). 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." General Statutes § 42-110g (f) provides: "An action under this section may not be brought more than three years after the occurrence of a violation of this chapter." As best as we can discern, all of the plaintiff's claims as to the tolling of the statutes of limitations rest on a theory that a continuing duty arose from the special relationship between the parties, thus creating a privity of contract between the parties. We have concluded in part II A of this opinion that the court properly determined that there was no genuine issue of material fact as to whether privity of contract existed between the plaintiff and the defendant. To the extent that the plaintiff referenced other claims that he and the defendant were in a special relationship, his brief does not support this contention. "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. Assignments of error which are merely mentioned but not briefed beyond a mere statement of the claim will be deemed abandoned and will not be reviewed by this court." (Citation omitted; internal quotation marks omitted.) Lucarelli v. Freedom of Information Commission, 136 Conn.App. 405, 407 n.1, 46 A.3d 937, cert. denied, 307 Conn. 907, 53 A.3d 222 (2012). Accordingly, to the extent that the plaintiff has inadequately attempted to challenge the court's determination that no special relationship existed between the plaintiff and the defendant that would toll the statutes of limitations under the continuing course of conduct doctrine, we deem such claims abandoned and decline to review them on appeal.

5469

33652

In this opinion the other judges concurred.

12489130

Kristina WEIHING v. Robert J. PRETO-RODAS et al.

Weihing v. Preto-Rodas

2017-02-28

AC 37310

1278

1281

155 A.3d 1278

155

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-09-08T21:16:17.237805+00:00

Fastcase

Kristina WEIHING v. Robert J. PRETO-RODAS et al.

Kristina WEIHING v. Robert J. PRETO-RODAS et al. AC 37310 Appellate Court of Connecticut. Argued January 5, 2017 Officially released February 28, 2017 Dana P. Lonergan, with whom, on the brief, was Thomas J. Weihing, for the appellant (plaintiff). Cynthia M. Garraty, for the appellees (defendants). Alvord, Mullins and Sullivan, Js.

1377

8234

PER CURIAM. The plaintiff, Kristina Weihing, appeals from the judgment of the trial court, rendered after a jury trial, in favor of the defendants, Robert J. Preto-Rodas and Margaret Preto-Rodas, in this action brought pursuant to General Statutes § 22-357. On appeal, the plaintiff claims that the trial court improperly (1) admitted photographs of the defendants' dog and (2) denied her motion to set aside the jury's verdict and for a new trial. We affirm the judgment of the trial court. The jury reasonably could have found the following facts from the testimony at trial. On June 27, 2011, the plaintiff was walking her three dogs, two sixty pound pit bull mixes, Angelica and Roscoe, and a one hundred pound German shepherd-Akita mix, Max, on leashes in front of the defendants' house. The defendants' neighbor observed Roscoe defecating on the defendants' lawn. While the plaintiff was bent over picking up the feces, the defendants' dog, Boo Boo, a twelve pound corgi-Chihuahua mix, came around to the front yard of the defendants' house from the backyard. The plaintiff noticed Boo Boo and attempted to pull Angelica, Roscoe, and Max away without success. Then, one of the dogs barked and Angelica, Roscoe, and Max began pursuing Boo Boo and tossing him about the defendants' yard. As Angelica, Roscoe, and Max pursued Boo Boo, the plaintiff was pulled to the ground by her leashed dogs and sustained injures as a result. Eventually, Angelica and Roscoe used their mouths to grab Boo Boo by the head and back and, prior to being rescued by one of the defendants, Boo Boo sustained injuries to his neck and abdomen. On June 23, 2013, the plaintiff filed a complaint against the defendants alleging that Boo Boo, "who was unleashed, suddenly ran from the defendants' premises and attacked and bit [her] dogs, causing [her] to fall forcibly to the ground, thereby causing [her] to sustain and suffer severe injuries and losses." On October 2, 2013, the defendants filed an answer, in which they alleged, as a special defense, that "the [p]laintiff, through the actions of her dogs, was teasing, tormenting and abusing [Boo Boo]." On July 28, 2014, the plaintiff filed a motion in limine to preclude photographs of Boo Boo or Boo Boo's injuries. On July 29, 2014, the court, after a hearing, denied the plaintiff's motion, agreeing with the defendants that the photographs of Boo Boo were probative of the defendants' special defense. A two day jury trial commenced that same day. The only evidence the plaintiff presented that Boo Boo was the proximate cause of her injuries was her own testimony that, while walking her dogs along the sidewalk, an unleashed Boo Boo ran out of the defendants' yard, started barking at her dogs, and tried to nip and bite them, which forced her dogs to act to protect themselves. On July 30, 2014, the jury returned a verdict in favor of the defendants. In response to two separate interrogatories, the jury indicated that (1) the plaintiff did not prove that Boo Boo's actions were the proximate cause of her injuries and (2) the photographs of Boo Boo's injuries were evidence of teasing, tormenting, or abusing. On August 11, 2014, the plaintiff filed a motion to set aside the verdict and for a new trial, arguing that the photographs of Boo Boo's injuries were admitted improperly into evidence and that she was prejudiced because the jury, through its answers to the interrogatories, indicated that it relied on the photographs to find that the defendants proved their special defense. The court denied the plaintiff's motion, reasoning that the jury concluded that she failed to prove an element of her cause of action, i.e., causation, and, therefore, the evidence of Boo Boo's injuries did not have to be considered by the jury to return a verdict in favor of the defendants. On appeal, the plaintiff claims that the court improperly (1) admitted the photographs of Boo Boo's injuries and (2) denied her motion to set aside the jury's verdict based on the improper admission of those photographs. We conclude that the court properly denied the plaintiff's motion to set aside the jury's verdict because the jury could have reasonably concluded that the plaintiff failed to prove that Boo Boo was the proximate cause of her injuries. Accordingly, we need not reach the issue of whether the photographs of Boo Boo's injuries were erroneously admitted into evidence or whether the court erroneously denied the plaintiff's motion to set aside the verdict based on that purported evidentiary error. "[T]he role of the trial court on a motion to set aside the jury's verdict is not to sit as a seventh juror, but, rather, to decide whether, viewing the evidence in the light most favorable to the prevailing party, the jury could reasonably have reached the verdict that it did.... A verdict is not defective as a matter of law as long as it contains an intelligible finding so that its meaning is clear.... A verdict will be deemed intelligible if it clearly manifests the intent of the jury.... In reviewing the action of the trial court in denying the motions . to set aside the verdict, our primary concern is to determine whether the court abused its discretion and we decide only whether, on the evidence presented, the jury could fairly reach the verdict [it] did." (Internal quotation marks omitted.) Arnold v. Moriarty , 140 Conn.App. 872, 879, 60 A.3d 317 (2013). Based on our review of the evidence at trial in the present case, the jury could have reached, fairly and reasonably, a verdict for the defendants based on the plaintiff's failure to meet her burden of proof. Section 22-357 renders the owner or keeper of a dog strictly liable to third parties for injuries that the dog caused through its own "volitional conduct that is either vicious or mischievous rather than innocent or involuntary." Atkinson v. Santore , 135 Conn.App. 76, 81, 41 A.3d 1095, cert. denied, 305 Conn. 909, 44 A.3d 184 (2012). The only evidence presented that Boo Boo caused the fracas with Angelica, Roscoe, and Max, and therefore proximately caused the plaintiff's injuries, was the plaintiff's testimony that Boo Boo attacked her dogs first. Based on the jury's answer to the first interrogatory and its verdict in favor of the defendants, it is reasonable to conclude, however, that the jury discredited that testimony. "It is not our position to dictate which witnesses the jury should credit; [t]he trier [is] free to accept or reject, in whole or in part, the testimony offered by either party." (Internal quotation marks omitted.) Arnold v. Moriarty , supra, 140 Conn.App. at 880, 60 A.3d 317. Accordingly, the court did not err in denying the plaintiff's motion to set aside the jury's verdict based on an evidentiary claim relating to the defendants' special defense. See id., at 879-80, 60 A.3d 317 (trial court properly denied plaintiff's motion to set aside verdict where jury reasonably could have found that plaintiff failed to prove damages, an essential element of her cause of action). The judgment is affirmed. General Statutes § 22-357 provides in relevant part: "If any dog does any damage to . the body . of any person, the owner or keeper . shall be liable for the amount of such damage, except when such damage has been occasioned to the body . 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. ." Conversely, Robert Preto-Rodas testified that Boo Boo was a rescue dog and that their dog trainer believed he was most likely a victim of abuse. Robert further testified that although Boo Boo occasionally would bark at people, he was "very skittish" and would avoid coming near other people or dogs because he was afraid of them. Margaret Preto-Rodas similarly testified that although Boo Boo would bark, he was a skittish rescue dog.

12499587

Jean-Pierre BOLAT v. Yumi S. BOLAT

Bolat v. Bolat

2018-06-05

AC 37788

96

105

190 A.3d 96

190

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-09-08T21:16:17.237805+00:00

Fastcase

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

Jean-Pierre BOLAT v. Yumi S. BOLAT

Jean-Pierre BOLAT v. Yumi S. BOLAT AC 37788 Appellate Court of Connecticut. Argued January 8, 2018 Officially released June 5, 2018 Steven R. Dembo, Hartford, with whom, were Caitlin E. Kozloski and, on the brief, P. Jo Anne Burgh, Glastonbury, for the appellant (plaintiff). Richard W. Callahan, for the appellee (defendant). DiPentima, C.J., and Sheldon and Devlin, Js.

4090

25476

DiPENTIMA, C.J. The plaintiff, Jean-Pierre Bolat, appeals from certain postdissolution orders denying his motion for child support and finding him in contempt. On appeal, the plaintiff argues that the court erred in (1) denying his motion for child support and in finding no substantial change in the parties' financial circumstances since the date of judgment despite an increase in the income of the defendant, Yumi S. Bolat, and (2) finding him in contempt for failing to pay extracurricular activity expenses. We agree with the plaintiff as to both claims and, accordingly, reverse the judgment of the trial court. The following facts are relevant to the resolution of the issues on appeal. The plaintiff and the defendant were married on September 21, 1998, in Harpswell, Maine. At the time the parties met and married, the plaintiff was an active duty officer in the Navy. The defendant is a Japanese national. The parties have three children: a son born in 1999, a son born in 2001, and a daughter born in 2003. The parties raised their children in Japan until the breakup of their marriage in 2010. Thereafter, the plaintiff moved to Connecticut with the children, where they have resided since that time. The defendant followed the family to Connecticut. She initially entered the United States on a visitor's visa but eventually was granted her green card. In 2010, the plaintiff instituted this action for dissolution of marriage. On June 21, 2011, the court, Abery-Wetstone , J. , rendered a judgment of dissolution, which incorporated the parties' separation agreement and parenting plan-final custody stipulation (parenting plan). According to the parenting plan, the plaintiff would have sole legal and primary physical custody of the three minor children. Pursuant to the separation agreement, the parties agreed that, on the basis of the total coordination of family finances, and because the plaintiff was unemployed and receiving only retired military pay, there would be no order of child support. The separation agreement also provided that the parties would share agreed upon extracurricular expenses for the minor children and that each party would notify the other of any change in his or her employment status or income. Finally, the parties acknowledged that, due to a qualifying disability pursuant to General Statutes § 46b-84c, their elder son was entitled to receive child support until he attained the age of twenty-one years. The parties filed financial affidavits at the time of the dissolution. The plaintiff's financial affidavit, filed June 21, 2011, reflected a gross weekly income of $830.46 and a net weekly income of $709.59. The defendant's affidavit, filed June 21, 2011, reflected a gross weekly income of $134 and a net weekly income of $181. On September 6, 2013, the defendant filed a motion seeking, inter alia, to modify the custody orders. The defendant filed a financial affidavit, dated March 20, 2014, reflecting a total gross weekly income of $1150 and a total net weekly income of $901. On July 15, 2014, the court, Munro , J. , denied the defendant's motion. On August 13, 2014, the plaintiff, as a self-represented party, filed a motion for modification form (JD-FM-174) in which he identified the "[r]ecent decision by Judge Munro and loss of employment" as substantial changes in circumstances warranting the modification of child support. While the plaintiff's motion for modification was pending, the defendant filed a motion seeking to hold the plaintiff in contempt for his failure to pay his share of extracurricular activities. Following a hearing on March 2, 2015, the court, Gould , J. , denied the plaintiff's motion for modification, finding that there was no substantial change in circumstances warranting an order of child support. The court also found the plaintiff in wilful contempt of a prior court order. Specifically, the court found that the plaintiff owed the defendant for approximately 50 percent of all extracurricular activities for the minor children in the amount of $847.99. The plaintiff then filed the present appeal. I The plaintiff first claims that the trial court erred in finding no substantial change of circumstances and denying the motion for child support where the evidence clearly established that the defendant's income had increased significantly. Specifically, the plaintiff argues that the court should have reviewed the exhibits submitted with the motion and the parties' then current financial affidavits prior to concluding that no substantial change in circumstances had occurred. We agree. We first set forth our standard of review. "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." (Internal quotation marks omitted). O'Donnell v. Bozzuti , 148 Conn. App. 80, 82-83, 84 A.3d 479 (2014). "Notwithstanding the great deference accorded the trial court in dissolution proceedings, a trial court's ruling . may be reversed if, in the exercise of its discretion, the trial court applies the wrong standard of law." (Internal quotation marks omitted.) Tuckman v. Tuckman , 308 Conn. 194, 200, 61 A.3d 449 (2013). The following additional facts are necessary for the resolution of this issue. On August 13, 2014, the plaintiff filed a motion for modification form (JD-FM-174) identifying the "[r]ecent decision by Judge Munro and loss of employment" as substantial changes in circumstances warranting the modification. On the motion for modification form, the plaintiff also directed the court to "[s]ee motion attached," which appears to be a "motion for child support" that was submitted along with the motion for modification form. In the attached motion for child support, the plaintiff indicated that, in accordance with Judge Munro's July 15, 2014 memorandum of decision, he was requesting an order requiring the defendant to pay child support to the plaintiff in the amount of $1165.65 per month. The plaintiff indicated in the motion that he was unemployed and "receiving only his military retired pay (less 10 [percent] to the defendant), his VA disability payment, and temporary unemployment compensation (until February, 2015 at the latest)." The plaintiff further indicated that he had retained over $150,000 of family debt at the time of dissolution and that the defendant was employed at Maritime Program Group in Westbrook and was earning approximately $60,000 per year. The plaintiff attached a child support worksheet, the defendant's March 20, 2014 financial affidavit and the plaintiff's August 13, 2014 financial affidavit to the motion. At the hearing on March 2, 2015, the court indicated that it would consider only the grounds raised in the plaintiff's motion for modification of child support form, namely, the "recent decision by Judge Munro and loss of employment." The court indicated that it would not "take any evidence regarding another judge's decision that in any way would affect a motion for [modification]." After inquiring whether the plaintiff was ready to proceed "with this motion regarding loss of employment," the plaintiff responded, "Yes, Your Honor, and other factors." The court then allowed the plaintiff to testify in narrative form. The plaintiff testified as follows: "[I]n July of 2014 I lost my employment. My previous employment was at the rate of $113,000 a year, give or take, a bonus of about $1000 or $3000 at the end of the year. At that time, I filed for child support. The defendant, according to her financial affidavits, is making $56,000 a year; has no debt. At the judgment of dissolution, I retained all of the family debt between $150,000 and $200,000." Later, following a series of objections by counsel for the defendant, the plaintiff testified that "[d]ue to the loss of that, the incurred debts; the changes in the children since the judgment. There are other reasons for the modification that are inherent reasons that previous-Judge Emons recognized ." After the court sustained the defendant's objection, the plaintiff stated: "Well if-if you're only going to allow the testimony of myself regarding the loss of my employment, then, I believe, the facts are there in the case." On cross-examination, the plaintiff testified that he was unemployed at the time of the dissolution in 2011 and that, since that time, he had obtained and lost employment at various times. He conceded that he was in the same financial circumstances at the date of the hearing that he was in at the time of the dissolution judgment. Following the hearing, the court found that there was no substantial change in circumstances to warrant an order of child support and, therefore, denied the motion for modification. Modification of child support is governed by General Statutes § 46b-86 (a), which provides in relevant part: "Unless and to the extent that the decree precludes modification, any final order for the periodic payment of . support . may, at any time thereafter, be continued, set aside, altered or modified by the court upon a showing of a substantial change in the circumstances of either party ." "We previously have explained the specific method by which a trial court should proceed with a motion brought pursuant to § 46b-86 (a). When presented with a motion for modification, a court must first determine whether there has been a substantial change in the financial circumstances of one or both of the parties.... Second, if the court finds a substantial change in circumstances, it may properly consider the motion and, on the basis of the . § 46b-82 criteria, make an order for modification.... The court has authority to issue a modification only if it conforms the order to the distinct and definite changes in the circumstances of the parties.... Simply put, before the court may modify . [a child support order] pursuant to § 46b-86, it must make a threshold finding of a substantial change in circumstances with respect to one of the parties. "The party seeking the modification has the burden of proving a substantial change in circumstances.... To obtain a modification, the moving party must demonstrate that circumstances have changed since the last court order such that it would be unjust or inequitable to hold either party to it. Because the establishment of changed circumstances is a condition precedent to a party's relief, it is pertinent for the trial court to inquire as to what, if any, new circumstance warrants a modification of the existing order. In making such an inquiry, the trial court's discretion is essential." (Citations omitted; emphasis omitted; internal quotation marks omitted.) O'Donnell v. Bozzuti , supra, 148 Conn. App. at 87, 84 A.3d 479. In the present case, in addition to the testimony of the parties, the plaintiff attached a child support worksheet, the defendant's March 20, 2014 financial affidavit and the plaintiff's August 13, 2014 financial affidavit to the motion to modify. In addition, the parties both filed financial affidavits on March 2, 2015, the date of the modification hearing. Finally, the defendant introduced into evidence the parties' 2011 financial affidavits filed at the time of dissolution. According to the defendant, these documents demonstrate that the plaintiff had been able progressively to reduce his unsecured debt despite having expenses that exceeded his net income while the defendant had increased unsecured debt as her expenses continued to exceed her net income. A comparison of the defendant's financial affidavits from the time of the dissolution in 2011 to the 2015 hearing, however, reveals a change in her net weekly income from $181 to $767. Notwithstanding the financial affidavits, however, the court did not allow the plaintiff to proceed on his claim regarding the change in the defendant's income. It permitted the plaintiff to proceed only with regard to his claim of loss of employment as stated on the motion for modification form. That form, however, directed the court to "see motion attached" which was the motion for child support listing additional factors regarding a change in circumstances. Specifically, the plaintiff claimed in the attached motion that the defendant was employed and earning approximately $60,000 per year. Under these circumstances, the increase in the defendant's income properly was before the court and should have been considered by the court prior to ruling on the plaintiff's motion. Because the court did not consider the increase in the defendant's income from the date of the initial order to the date of the modification hearing prior to determining that there was no substantial change in circumstances, we conclude that the court abused its discretion in denying the plaintiff's motion for modification of child support. We therefore remand this matter to the trial court to conduct further proceedings addressing the plaintiff's motion for modification of child support. II The plaintiff next claims that the court erred in holding him in contempt for failing to pay extracurricular activity expenses for the minor children. Specifically, the plaintiff argues that the language contained in section 4.3 of the parties' separation agreement was not clear and unambiguous and, therefore, cannot support a finding of contempt. The plaintiff further argues that, even if the order was sufficiently clear and unambiguous to support a finding of contempt, the court erred in finding that the plaintiff wilfully disobeyed such language. Although we conclude that the order was sufficiently clear and unambiguous to support a finding of contempt, we agree with the plaintiff that the court erred in finding that he had wilfully disobeyed the order. "[O]ur analysis of a judgment of contempt consists of two levels of inquiry. 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. "The abuse of discretion standard applies to a trial court's decision on a motion for contempt.... A finding of contempt is a question of fact, and our standard of review is to determine whether the court abused its discretion in [finding] that the actions or inactions of the [party] were in contempt of a court order.... To constitute contempt, a party's conduct must be wilful.... Noncompliance alone will not support a judgment of contempt.... We review the court's factual findings in the context of a motion for contempt to determine whether they are clearly erroneous.... A factual finding is clearly erroneous when it is not supported by any evidence in the record or when there is evidence to support it, but the reviewing court is left with the definite and firm conviction that a mistake has been made." (Internal quotation marks omitted.) Marshall v. Marshall , 151 Conn. App. 638, 650, 97 A.3d 1 (2014). A finding of indirect civil contempt must be supported by clear and convincing evidence. Brody v. Brody , 315 Conn. 300, 318-19, 105 A.3d 887 (2015). "[A] court may not find a person in contempt without considering the circumstances surrounding the violation to determine whether such violation was wilful.... [A] contempt finding is not automatic and depends on the facts and circumstances underlying it.... [I]t is well settled that the inability of [a] defendant to obey an order of the court, without fault on his part, is a good defense to the charge of contempt . The contemnor must establish that he cannot comply, or was unable to do so.... It is [then] within the sound discretion of the court to deny a claim of contempt when there is an adequate factual basis to explain the failure." (Citation omitted; internal quotation marks omitted.) Mekrut v. Suits , 147 Conn. App. 794, 799-800, 84 A.3d 466 (2014). Section 4.3 of the parties' separation agreement provides: "The parties shall share agreed upon extracurricular expenses for the minor children 50/50, said agreement not to be unreasonably withheld; except mother shall pay for the Japanese cultural camp, if any, as referred to and ordered in the Parenting Plan." On September 10, 2014, the defendant filed a motion seeking to hold the plaintiff in contempt for his failure to pay his share of the children's extracurricular expenses. At the hearing on the motion for contempt, the defendant submitted an itemized list of extracurricular activities, the year that the children attended each activity and the amount that the defendant paid for each activity. The activities listed on this document were sailing for one of the parties' sons and for their daughter, and lacrosse for their daughter. The defendant testified that the plaintiff was aware that the children were participating in the activities, but had not contributed toward the cost of those activities. On cross-examination, however, the defendant testified that the plaintiff had not agreed to pay for their son's sailing in 2014 or their daughter's sailing or lacrosse in 2013. The defendant also testified that a "dear friend of [her] fiancé" had given her the money to pay for the sailing camps as a gift. The plaintiff asked the defendant if the plaintiff had ever failed to pay for any extracurricular activity that they had mutually agreed upon and the defendant responded that he had not. The plaintiff testified that he withheld his consent for the extracurricular activities because he could not afford to pay for them. Following the hearing, the court found the plaintiff in wilful contempt of a prior court order and ordered the plaintiff to pay $847.99 for the extracurricular activities for the minor children. In its subsequent memorandum of decision, the court stated that "[t]he plaintiff testified at the subject hearing that he agreed to the activities, and did not pay his percentage share of the expenses related thereto." The court then found, "[b]ased on the aforementioned testimony," that the plaintiff was in wilful contempt of the prior court order, that he had knowledge of the court order, that the order was unambiguous and understandable by the plaintiff, and that, based on the sum of money in his bank account and his income at the time, the plaintiff had the ability to pay. We first consider whether the order was sufficiently clear and unambiguous so as to support a judgment of contempt. Although the plaintiff contends that the plain language of section 4.3, which provides that "the parties shall share agreed upon extracurricular expenses for the minor children 50/50" clearly and unambiguously refers to agreed upon expenses, he argues that the order is nonetheless ambiguous because the trial court and the defendant construed it to mean that he was obligated to pay for agreed upon extracurricular activities. We disagree and conclude that the order clearly and unambiguously refers to agreed upon expenses. We further conclude, however, that the court abused its discretion in finding the plaintiff in wilful contempt of the order. As stated previously in this opinion, the agreement provided that the parties would share "agreed upon extracurricular expenses for the minor children 50/50, said agreement not to be unreasonably withheld." On cross-examination, the defendant testified that the plaintiff had not agreed to pay for their son's sailing in 2014 or their daughter's sailing or lacrosse in 2013. She also admitted that the plaintiff never had failed to pay an agreed upon extracurricular expense. In light of the defendant's own testimony, the defendant failed to prove, by clear and convincing evidence, that the plaintiff had failed to comply with a prior court order. The court, therefore, abused its discretion in finding the plaintiff in wilful contempt for failing to pay extracurricular activities for the minor children. The judgment is reversed and the case is remanded for further proceedings consistent with this opinion. In this opinion, the other judges concurred. The $134 in gross weekly income for the defendant was made up of $103 from her principal employment and $31 from other sources. It is unclear why the defendant's net income was higher than her gross income. There is no separate file stamp date on the attached "motion for child support." The transcript reveals the following: "The Court: All right, I've got 253; I'm going backwards from there; it looks like I have a fairly large offering of financial affidavits that are attached to a motion. I have an undated motion for child support dated August 12. "[The Plaintiff]: That would be the motion we're talking about. "The Court: Is there a motion before-252, I have a motion for modification regarding support. "[The Plaintiff]: Yes, Your Honor, that is what 252 is the child support. "The Court: All right. The motion-the reason for the motion says, recent decision by Judge Munro and loss of employment. I'm not going to take any evidence regarding another judge's decision that in any way would affect a motion for [modification]. Are you planning to proceed with this motion regarding loss of employment? "[The Plaintiff]: Yes, Your Honor, and other factors." In its subsequent memorandum of decision dated June 7, 2016, the court stated: "The plaintiff testified that, as of March 2, 2015, the date of the hearing of the instant motions, his employment and financial situation was the same as it was on . June 21, 2011, the date of the dissolution of his marriage. Based on the plaintiff's sworn testimony, the undersigned finds there is no substantial change in circumstances and therefore denies the plaintiff's motion, # 252." The defendant's financial affidavit, filed on June 21, 2011, reflected a gross weekly income of $134 and a net weekly income of $181. The defendant argues, however, that her actual weekly gross income in 2011 was $550. According to the defendant, her 2011 financial affidavit was based on the "weekly average not less than 13 weeks" as required by the financial affidavit form. The defendant points to the child support guidelines filed in 2011, which reflects $550 per week gross income for the defendant. We note, however, that "[a] court is entitled to rely upon the truth and accuracy of sworn statements required by . the [rules of practice], and a misrepresentation of assets and income is a serious and intolerable dereliction on the part of the affiant which goes to the very heart of the judicial proceeding.... These sworn statements have great significance in domestic disputes in that they serve to facilitate the process and avoid the necessity of testimony in public by persons still married to each other regarding the circumstances of their formerly private existence." Reville v. Reville , 312 Conn. 428, 442-43, 93 A.3d 1076 (2014). Furthermore, Article XVI of the parties' separation agreement provides, in relevant part: "The financial affidavit of the [plaintiff] and the financial affidavit of the [defendant] are hereby incorporated and made a part of this Agreement, it being expressly understood that the terms of this Agreement and the financial arrangement hereunder were made upon the representations contained in said affidavits. It is further understood and agreed that the parties hereto relied upon said representations in executing this Agreement." The court's only mention of the increase in the defendant's income was in its memorandum of decision dated June 7, 2016, filed after the plaintiff had filed several motions to complete and perfect the record. In that decision, the court stated that the plaintiff had "also alleged that, as a result of the marital dissolution agreement, he retained over $150,000 in family debt, and that the defendant was making $60,000 a year." In its decision the court held, however, based on the plaintiff's testimony that his financial situation was the same on the date of the hearing on the motion to modify that it was on June 21, 2011, the date of the dissolution of the parties' marriage, that there was no substantial change in circumstances. The court did not address the increase in the defendant's income as stated in the plaintiff's motion to modify. The transcript reveals the following: "[The Plaintiff]: Did I ever fail to pay for any extracurricular activity that we mutually agreed upon? "[The Defendant]: No."

12499648

Aloysius KARGUL et al. v. Mika-Ela SMITH et al.

Kargul v. Smith

2018-06-26

AC 40196

1065

1068

191 A.3d 1065

191

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-09-08T21:16:17.237805+00:00

Fastcase

Aloysius KARGUL et al. v. Mika-Ela SMITH et al.

Aloysius KARGUL et al. v. Mika-Ela SMITH et al. AC 40196 Appellate Court of Connecticut. Argued March 6, 2018 Officially Released June 26, 2018 Mark DeGale, self-represented, with whom, on the brief, was Mika-Ela Smith, self-represented, the appellants (defendants). Bryan P. Fiengo, New London, for the appellees (plaintiffs). Sheldon, Elgo and Bright, Js.

957

6027

PER CURIAM. The self-represented defendants, Mika-Ela Smith and Mark DeGale, appeal from the judgment of the trial court rendered in favor of the plaintiffs, Aloysius Kargul and Barbara Greczkowski. On appeal, the defendants claim that the trial court lacked subject matter jurisdiction over this summary process action. We affirm the judgment of the trial court. The relevant facts are not in dispute. On August 29, 2016, the plaintiffs served on the defendants a notice to quit possession of real property known as 38 Williams Street in Jewett City due to nonpayment of rent. On October 5, 2016, the plaintiffs commenced a summary process action against the defendants (first action), alleging that they had failed to make payments in accordance with an oral lease agreement (agreement) between the parties. In response, the defendants filed a motion to dismiss the action. Before that motion was acted upon by the court, the plaintiffs on November 8, 2016, filed a withdrawal of the first action. The plaintiffs served a second notice to quit possession on the defendants on November 14, 2016. The plaintiffs then commenced the present summary process action against the defendants, alleging that the agreement between the parties had terminated by lapse of time. The parties thereafter filed a motion for judgment by stipulation with the court. By order dated January 11, 2017, the court granted that motion and rendered judgment in accordance with the stipulation of the parties. Approximately one month later, the plaintiffs filed an affidavit of noncompliance with the court, in which they averred that the defendants had failed to comply with the terms of that judgment. The plaintiffs thus requested that an execution for possession issue. The defendants objected to that request, and the court held an evidentiary hearing on the matter. At the conclusion of that hearing, the court found that the defendants had violated the terms of the stipulated judgment. Accordingly, the court ordered that the summary process execution "may be issued immediately." This appeal followed. On appeal, the defendants claim that the trial court lacked subject matter jurisdiction over this summary process action. They contend that the plaintiffs, in serving the initial notice to quit possession in August, 2016, "terminated the agreement between the parties without equivocation or reservation," and thereby deprived the court of jurisdiction to entertain the summary process action commenced by the plaintiffs four months later. The defendants are mistaken. It is true that "[s]ervice of a notice to quit possession is typically a landlord's unequivocal act notifying the tenant of the termination of the lease." Housing Authority v. Hird , 13 Conn. App. 150, 155, 535 A.2d 377, cert. denied, 209 Conn. 825, 552 A.2d 433 (1988). As this court has recognized, however, a plaintiff possesses an "absolute and unconditional" statutory right to withdraw its summary process action prior to the commencement of a hearing thereon. Id., at 157, 535 A.2d 377 ; see General Statutes § 52-80 ("[t]he plaintiff may withdraw any action . before the commencement of a hearing on [its] merits"). When a plaintiff exercises that statutory right, its withdrawal of the action "effectively erase[s] the court slate clean as though the eviction predicated on [an earlier] notice to quit possession had never been commenced." Housing Authority v. Hird , supra, at 157, 535 A.2d 377. In such instances, the plaintiff and the defendant to the summary process action are " 'back to square one,' and the continuation of their lease . [is ] restored ." (Emphasis added.) Id. For that reason, our Supreme Court has held that "after withdrawing [an] initial summary process action, the plaintiffs, as landlords, [are] required to serve a new notice to quit prior to commencing a new summary process action." Waterbury Twin, LLC v. Renal Treatment Centers-Northeast, Inc ., 292 Conn. 459, 474, 974 A.2d 626 (2009). Guided by that precedent, we conclude that when the plaintiffs withdrew the first action against the defendants prior to the commencement of a hearing on its merits, the continuation of the agreement between the parties was restored. Housing Authority v. Hird , supra, 13 Conn. App. at 157, 535 A.2d 377. The trial court, therefore, did not lack subject matter jurisdiction over the plaintiffs' subsequent summary process action. The judgment is affirmed. That stipulation was signed by the parties and states in relevant part: "By agreement of the parties, judgment for possession will enter in favor of the [plaintiffs] with a final stay of execution through/until June 30, 2017, based on the following conditions . "1. Defendants to pay use and occupancy of $950, beginning January 11, 2017. "2. Defendants to allow realtor to show premises for sale, including access to all buildings on the property. "3. Defendants to clean up premises to prepare for showing after February 1, 2017 premises for sale, including repairs to any holes in the wall. "4. Defendants to leave premises clean [and] in broom swept condition. "5. All keys to be returned to landlord on June 30, 2017. "6. Defendants to put toilet and sink back in upstairs bathroom. "7. Defendants to leave all fixtures in the home upon leaving. "8. Both parties agree to waive canvass." In its corresponding order, the court found that "[t]he defendants failed to make the requisite use and occupancy payments as agreed to in their stipulation. The defendants failed to cooperate with the realtor as agreed to in their stipulation. The defendants failed to clean up the premises as agreed to in their stipulation."

12503994

Winston Y. LI et al. v. Henry K. YAGGI III et al.

Li v. Yaggi

2018-10-30

AC 40683

123

135

198 A.3d 123

198

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-09-08T21:16:17.237805+00:00

Fastcase

Winston Y. LI et al. v. Henry K. YAGGI III et al.

Winston Y. LI et al. v. Henry K. YAGGI III et al. AC 40683 Appellate Court of Connecticut. Argued May 24, 2018 Officially released October 30, 2018 Winston Y. Li, self-represented, and Liping Wang, self-represented, the appellants (plaintiffs). Philip G. Kent, New Haven, with whom, on the brief, was Adam D. Miller, for the appellees (defendants). Alvord, Sheldon and Norcott, Js.

6634

41528

ALVORD, J. The self-represented plaintiffs, Winston Y. Li and Liping Wang, appeal from the judgment of the trial court, rendered after a trial to the court, in favor of the defendant, Valerie M. Yaggi, individually and as administratrix of the estate of Henry Yaggi, on the plaintiffs' two count complaint alleging breach of the parties' purchase and sale agreement and breach of contract. On appeal, the plaintiffs claim that the court (1) erroneously found that the plaintiffs failed to diligently pursue a written mortgage commitment, (2) erroneously found that the plaintiffs failed to give notice of their inability to obtain financing for the real estate purchase by the agreed upon commitment date, and (3) erred in awarding the defendant attorney's fees. The defendant raises the doctrine of equitable estoppel as an alternative ground for affirmance of the court's decision. We reverse the judgment of the trial court. The record reveals the following facts and procedural history. On October 26, 2012, the defendant entered into a purchase and sale agreement (agreement) with the plaintiffs with respect to a parcel of real property located at 45 Wickford Place in the town of Madison (property). The purchase price of the property was $810,000, and the plaintiffs submitted deposits totaling $25,000. The agreement contained a mortgage contingency clause in paragraph 6, which stated: "Buyer's obligation is contingent upon Buyer obtaining financing as specified in this paragraph. Buyer agrees to apply for such financing immediately and diligently pursue a written mortgage commitment on or before the Commitment Date.... If Buyer is unable to obtain a written commitment and notifies Seller in writing by 5:00 p.m. on said Commitment Date, this Agreement shall be null and void and any Deposits shall be immediately returned to Buyer. Otherwise, the Financing Contingency shall be deemed satisfied and this Agreement shall continue in full force and effect." The agreement specified that the commitment date was thirty days from the date of the October 26 agreement, which was November 25. Because November 25 was a Sunday, the commitment date was November 26. The closing date was set for December 3. Paragraph 14 of the agreement provided: "If Buyer fails to comply with any Terms of this Agreement by the time set forth for compliance and Seller is not in default, Seller shall be entitled to all initial and additional deposit funds provided for in section 4, whether or not Buyer has paid the same, as liquidated damages and both parties shall be relieved of further liability under this Agreement. If legal action is brought to enforce any provision of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees." On November 24, 2012, the plaintiffs sent an e-mail to the defendant, stating: "Attached is a request of mortgage extension. Due to the Hurricane Sandy and Thanksgiving holiday. We won't be able to obtain a mortgage commitment by 5 [p.m.] today. We request your approval of extension. We expect a commitment from a bank next week. Please sign and return to us ASAP." (November 24 e-mail) The plaintiffs attached to their e-mail a change form, which proposed an amended commitment date of December 3, 2012, and an amended closing date of December 14, 2012. The change form was signed by the plaintiffs. The defendant forwarded the e-mail to her realtor, Lorey Walz, on November 24. The same day, Walz e-mailed Blake Ruchti, the plaintiffs' realtor, stating: "We have received the request to extend the mortgage commitment date and closing date. The sellers, Hank and Val Yaggi, are willing to do so after receiving verification from the bank that you have a mortgage approval contingent upon a bank appraisal.... Hank and Valerie Yaggi would like to see you purchase the home but have to be confident that a bank commitment will be given." The defendant did not sign the change form. The plaintiffs submitted a second change form, signed by the plaintiffs and dated November 30, 2012, to the defendant. The second change form proposed an amended commitment date of December 14, 2012, and an amended closing date of December 21, 2012. The defendant handwrote, next to the amended commitment and closing dates, "[t]ime is of the essence," and initialed next to those handwritten additions. The defendant signed the second change form on December 4, 2012. The plaintiffs did not initial next to those handwritten additions, but they subsequently executed a third and a fourth change form, requesting further extensions of the commitment and closing dates. Neither form was signed by the defendant. The fourth change form proposed an amended commitment date of January 18, 2013, and an amended closing date of January 25, 2013. On February 17, 2013, the plaintiffs e-mailed the defendant's counsel, James Segaloff, following up on a conversation from February 6, 2013, in which they told Segaloff that the first bank to which they applied for a mortgage had denied their loan application, the second such bank had requested an affidavit of repair for the roof before issuing a commitment, and the third such bank had not yet responded. In their e-mail, the plaintiffs stated: "We have requested for contract termination but no response from your clients.... Please advise the status and their consideration of the termination of the contract." The plaintiffs requested return of their deposits and attached a notice of loan denial from the first bank, United Wholesale Mortgage, dated December 13, 2012, and a suspense notice from the second bank, Mortgages Services III, LLC, dated December 6, 2012. On February 27, 2014, the plaintiffs commenced this action, alleging in relevant part that the defendant had breached the purchase and sale agreement by "not timely releas[ing] the deposit[s] ." Both parties moved for summary judgment, those motions were denied, and the matter was tried to the court on March 9, 2017. The parties submitted proposed findings of fact and conclusions of law. On July 25, 2017, the court issued a memorandum of decision, finding that the plaintiffs had breached the purchase and sale agreement by failing (1) to timely terminate the contract, and (2) to diligently pursue financing as required under the agreement. Specifically, the court concluded that the November 24 e-mail sent by the plaintiffs did not constitute written notice of termination of the agreement, but rather served as a request for an extension of the commitment and closing dates. The court further found that none of the change forms submitted by the plaintiffs had been agreed upon by the parties and, thus, that the original commitment date remained operative. Because the plaintiffs did not provide written notice of termination by 5 p.m. on the commitment date, the court concluded that the defendant was entitled to retain the deposits. Regarding the requirement to diligently pursue financing, the court relied on the two December, 2012 "mortgage denial notifications," provided by the plaintiffs to the defendant on February 17, 2013. The court found that the notifications "indicated that the plaintiffs did not fully complete their loan applications, and were thus denied financing." The court noted that the plaintiffs had submitted the third and fourth change forms requesting extensions of the commitment date after the issuance of the December denial notifications, at which time they were "fully aware that they had been denied a mortgage by two banks." Thus, the court concluded that the plaintiffs had breached the agreement by failing to pursue financing in a diligent manner. Finally, the court concluded that the plaintiffs had defaulted on the agreement, triggering the liquidated damages clause set forth in paragraph 14 of the agreement. The court found that the amount of the deposits, $25,000, was a reasonable amount for the defendant to retain as liquidated damages because that sum represented only three percent of the $810,000 purchase price of the property and the defendant had testified that the delay occasioned by the plaintiffs had ultimately caused the defendant to sell the property for $135,000 less than the contract price to which the parties had agreed. With respect to the defendant's request for attorney's fees, the court ordered the defendant to file a motion, together with a supporting affidavit, and indicated that it would "determine whether reasonable attorney's fees shall be awarded" after a hearing on the motion. The plaintiffs filed this appeal on July 28, 2017. On January 29, 2018, the court awarded the defendant attorney's fees in the amount of $38,000 and costs, after which the plaintiffs filed an amended appeal. Additional facts shall be set forth as necessary. We now turn to the plaintiffs' claims on appeal. I In the present case, the trial court determined that the plaintiffs were not entitled to the return of their deposits because they had not complied with the terms of the mortgage contingency clause. Specifically, the court found that the plaintiffs failed both to diligently pursue a written mortgage commitment and to give the notice to the defendant as described in the mortgage contingency clause. We conclude that the court's finding as to diligence was clearly erroneous because it was not specific to the relevant timeframe. We further conclude that the court's finding as to notice rested on a misinterpretation of the language contained in the mortgage contingency clause, in that the court construed the clause as requiring notice of termination of the agreement, rather than notice of an inability to obtain a written commitment by the commitment date. Consequently, the court's findings did not properly resolve the plaintiffs' breach of contract claim seeking to invoke the mortgage contingency clause's provision for the return of their deposits. The central questions that should have been decided by the court were (1) whether the plaintiffs diligently pursued a written mortgage commitment on or before the commitment date, and (2) whether, if they were unable to obtain a written commitment by the commitment date, they so informed the defendant in writing by 5 p.m. on that date. We begin by setting forth the general law applicable to mortgage contingency clauses. A mortgage contingency clause contained in a contract for the sale of real property generally allows a purchaser to recover his or her deposit if the purchaser is unable to secure a mortgage and has complied with the provisions of the contingency clause. See generally 77 Am. Jur. 2d, Vendor and Purchaser § 531 (2016) ("The purchaser may be expressly given the privilege or option to rescind the contract and to recover any payments made by him or her where the contract of sale provides for the cancellation of the contract in the event that the purchaser is unable to obtain a mortgage or loan within a specified time. Accordingly, when a contract for the sale of real property contains a mortgage contingency clause . they are entitled to recover their down payment if the mortgage is not in fact approved through no fault of their own.... On the other hand, where the purchaser disregards the terms of a financing contingency contained in a contract for sale . the purchaser would not be entitled to invoke the contractual contingency and recover his or her down payment." [Footnotes added and omitted.] ). The condition is "meant to protect the buyer. It is a condition of the buyer's duty, not a condition of the seller's duty under the contract. Upon the nonoccurrence of the condition, i.e., the buyer's obtaining financing, the buyer is ipso facto excused from performance." (Footnotes omitted.) 92 C.J.S., Vendor and Purchaser § 197 (2018) ; see also 2 Restatement (Second), Contracts § 225, illustration (8) (1981); id., § 226, illustration (4). In the present case, the plain language of the provision in question, stating that the "Buyer's obligation is contingent upon Buyer obtaining financing," evidences the intent of the parties that the provision be a condition precedent to the plaintiffs' obligation to perform their agreement to purchase. Our appellate courts have previously interpreted similar mortgage contingency clauses and determined them to be conditions precedent to the contract. See, e.g., Luttinger v. Rosen , 164 Conn. 45, 48, 316 A.2d 757 (1972) ; see also Barber v. Jacobs , 58 Conn. App. 330, 335, 753 A.2d 430 ("[t]he primary issue in this appeal is whether the plaintiff made a reasonable effort to obtain a mortgage which was a condition precedent of the contract"), cert. denied, 254 Conn. 920, 759 A.2d 1023 (2000). The parties do not dispute that the plaintiffs were "unable to obtain a written commitment" by the commitment date. They disagree, however, as to whether the plaintiffs diligently pursued such a written commitment before that date and whether they gave written notice of their inability to obtain a commitment in such a way as to entitle them to the return of their deposits. A The plaintiffs claim that the court erred in concluding that the plaintiffs breached the purchase and sale agreement by failing to diligently pursue financing. Specifically, the plaintiffs argue that they provided all documents to two banks to which they applied for financing, and that the December, 2012, denial and suspense notices presented to the court evidenced their diligent pursuit of such financing. They contend that the court "failed to understand the mortgage process and didn't analyze the denial/suspense reasons, terms, and conditions." The plaintiffs further argue that the agreement did not require applications to multiple banks and, thus, that their application to one bank was sufficient to comply with the agreement. The defendant argues that the trial court's finding that the plaintiffs "did not fully complete their loan applications" was supported by the December, 2012 denial and suspense notices. We agree with the plaintiffs that the court's finding that they failed to diligently pursue financing was clearly erroneous, although we do so on the basis that the court erroneously relied upon the December, 2012 denial and suspense notices. Those notices were ambiguous as to whether they reflected the plaintiffs' efforts up to the commitment date and, therefore, shed light on the plaintiffs' diligence in pursuing financing during the relevant timeframe, or whether they reflected plaintiffs' efforts after the commitment date, i.e., after the deadline for the plaintiffs' use of diligence had passed. The mortgage contingency clause in the parties' agreement required the plaintiffs to diligently pursue a written mortgage commitment on or before the commitment date. Similar provisions have been interpreted by our appellate courts as "imply[ing] a promise by the borrower that he or she will make reasonable efforts to secure a suitable mortgage." (Internal quotation marks omitted.) Barber v. Jacobs , supra, 58 Conn. App. at 335, 753 A.2d 430 ; see also Phillipe v. Thomas , 3 Conn. App. 471, 473, 489 A.2d 1056 (1985). In McCoy v. Brown , 130 Conn. App. 702, 705, 708, 24 A.3d 597, cert. denied, 302 Conn. 941, 29 A.3d 467 (2011), this court explained that a mortgage contingency clause expressly requiring the buyers to "make application [for a loan] forthwith and pursue the same diligently," obligated the buyers to "use reasonable diligence in their efforts to obtain a mortgage commitment." (Internal quotation marks omitted.) "Reasonableness . is an objective standard, involving an analysis of what a person with ordinary prudence would do given the circumstances, without accounting for any particular knowledge or skill.... Whether the plaintiff's actions constituted reasonable efforts to satisfy the contractual condition is a factual determination for the trial court." (Internal quotation marks omitted.) Id., at 708, 24 A.3d 597. The question for the court was whether the plaintiffs had used reasonable diligence in their efforts to pursue a written mortgage commitment on or before the commitment date. By the express terms of the agreement, that obligation terminated on the commitment date. In reaching the conclusion that the plaintiffs failed to diligently pursue a written mortgage commitment on or before the commitment date, however, the court relied solely on the December, 2012 denial and suspense notices, which were ambiguous as to whether they reflected efforts of the plaintiffs within the relevant time period. Although the trial court found that the two notices "indicated that the plaintiffs did not fully complete their loan applications," the notices themselves provide no suggestion as to whether the plaintiffs were previously notified, prior to the commitment date, of any deficiencies in their applications. The court, in relying exclusively upon the denial and suspense notices, failed to properly focus on the diligence of the efforts made by the plaintiffs up to the commitment date. The court made no specific finding that there had been a lack of reasonable diligence in that earlier time period. Accordingly, the court's finding that the plaintiffs failed to diligently pursue financing is clearly erroneous. B The plaintiffs next contend that the court erroneously found that they failed to give written notice of their inability to obtain financing for the real estate purchase by the commitment date. They argue that they provided such notice by way of their November 24 e-mail, wherein they stated: "Attached is a request of mortgage extension. Due to the Hurricane Sandy and Thanksgiving holiday. We won't be able to obtain a mortgage commitment by 5 [p.m.] today. We request your approval of extension. We expect a commitment from a bank next week. Please sign and return to us ASAP." The plaintiffs argue that the November 24 e-mail satisfied their obligation under the agreement to provide notice of their inability to obtain financing by the commitment date, and that, contrary to the court's finding, the agreement did not require the plaintiffs to declare the contract terminated. As support for their argument, the plaintiffs identify a separate provision of the agreement that expressly requires the buyer to notify the seller of the "Buyer's election to terminate this Agreement." The defendant responds that "the text of the . e-mail alone is strong evidence in the record that plaintiffs did not seek a termination at all, but merely requested an extension." The defendant further emphasizes the plaintiffs' attachment of a change form to their e-mail as evidence that the plaintiffs sought an extension, not a termination of the agreement. We conclude that the court erred in interpreting the mortgage contingency clause to require notice of termination and consequently failed to make a factual determination as to whether the November 24 e-mail constituted notice of an inability to obtain a written commitment. We first set forth our standard of review. "[T]he question of contract interpretation is a question of the parties' intent.... Ordinarily, that is a question of fact. . If, however, the language of the contract is clear and unambiguous, the court's determination of what the parties intended in using such language is a conclusion of law.... In such a situation our scope of review is plenary, and is not limited by the clearly erroneous standard." (Citations omitted; internal quotation marks omitted.) CAS Construction Co. v. East Hartford , 82 Conn. App. 543, 552, 845 A.2d 466 (2004) ; see also Southport Congregational Church-United Church of Christ v. Hadley , 320 Conn. 103, 115, 128 A.3d 478 (2016) ("The proper interpretation of the [mortgage contingency] clause requires us to determine the intent of the parties.... The meaning properly to be ascribed to [a] mortgage commitment clause [is] to be determined, as a matter of fact, from the language of the contract, the circumstances attending its negotiation, and the conduct of the parties in relation thereto.... Like other contracts, though, the meaning of unambiguous language in a mortgage contingency clause is determined as a matter of law." [Citations omitted; internal quotation marks omitted.] ). In general, "[a] mortgage contingency clause may require that a purchaser give the vendor written notice of inability to obtain financing and if the purchaser does not adequately comply with such provision, he or she is not entitled to a refund." 92A C.J.S., Vendor and Purchaser § 709 (2018). In determining whether the buyer's notice is sufficient under the terms of the contract, the court should consider the entire communication. See Zullo v. Smith , 179 Conn. 596, 605, 427 A.2d 409 (1980) (concluding that "taken as a whole, the defendant's letter contains sufficient language to notify the plaintiff of the defendant's inability to obtain a building permit" in accordance with building permit contingency clause). The provision at issue in the present case stated in relevant part: "If Buyer is unable to obtain a written commitment and notifies Seller in writing by 5:00 p.m. on said Commitment Date, this Agreement shall be null and void and any Deposits shall be immediately returned to Buyer." The clear meaning of this provision is that if the plaintiffs were to give the defendant notice by the commitment date of their inability to obtain a written commitment by the commitment date, the agreement would be null and void and the plaintiffs would be entitled to the return of their deposits. The trial court instead considered "whether the plaintiffs complied with the terms of the agreement by providing the [defendant] with notice of termination of the agreement ." (Emphasis added.) Because the provision at issue does not require the buyer to include in the writing a notice of termination of the agreement, the court addressed the wrong question. Indeed, as the plaintiffs argue, an examination of the agreement as a whole reveals that where the parties intended to require a notice of termination, the agreement expressly included language to that effect. "[W]hen interpreting a contract, we must look at the contract as a whole, consider all relevant portions together and, if possible, give operative effect to every provision in order to reach a reasonable overall result." (Internal quotation marks omitted.) Connecticut National Bank v. Rehab Associates , 300 Conn. 314, 322, 12 A.3d 995 (2011). Specifically, the agreement's inspection contingency clause permits the "Buyer [to] notify Seller . of Buyer's election to terminate this Agreement." In contrast, the provision at issue did not contemplate that the buyers would give notice of an election to terminate, but rather that they would give notice of their inability to obtain financing by the commitment date, which, in turn, would render the agreement null and void. Any construction of the agreement that disregards this distinction must be rejected. See Recall Total Information Management, Inc. v. Federal Ins. Co. , 147 Conn. App. 450, 460, 83 A.3d 664 (2014) (rejecting broad construction of term "suit" where such construction would obliterate distinction between "suit" and "claim," and would create internal inconsistency in insurance contract), aff'd, 317 Conn. 46, 115 A.3d 458 (2015). Accordingly, the court should have determined whether the plaintiffs' November 24 e-mail, taken as a whole, contained sufficient language to notify the defendant of the plaintiffs' inability to obtain financing by the commitment date. The court did find, and the parties agree, that the commitment date was never extended. Although the plaintiffs requested an extension of the commitment and closing dates in their November 24 e-mail, Walz replied that the Yaggis were only willing to agree to an extension "after receiving verification from the bank that you have a mortgage approval contingent upon a bank appraisal." Because the plaintiffs did not provide such verification, and therefore the condition was not fulfilled, the extension never became operative. See Ziotas v. Reardon Law Firm, P.C. , 111 Conn. App. 287, 304, 959 A.2d 1013 (2008) ("[a] reply to an offer which purports to accept it but is conditional on the offeror's assent to terms additional to or different from those offered is not an acceptance but is a counteroffer" [internal quotation marks omitted] ), aff'd in part and rev'd in part on other grounds, 296 Conn. 579, 997 A.2d 453 (2010). Likewise, none of the change forms submitted by the plaintiffs to the defendant effectively changed the commitment and closing dates. The first change form, attached to the plaintiffs' November 24 e-mail, was never signed by the defendant. The defendant, after signing the second change form, indicated that "[t]ime is of the essence" next to each of the amended commitment and closing dates, which the plaintiffs never initialed. The third and fourth change forms were never signed by the defendant. Accordingly, the original commitment and closing dates were never extended. The defendant argues that if the plaintiffs "really believed that they were terminating the agreement on November 24, 2012, when they sent the e-mail, there would be no reason for plaintiffs to ask for multiple extensions of the financing/commitment and closing dates. The underlying contract would have ceased to exist at that point and thus the financing/commitment and closing dates would have been null and void and would not need to be extended and plaintiffs would have had no reason to further pursue financing for the purchase." The defendant's argument relies heavily on the plaintiffs' intentions expressed within the November 24 e-mail and throughout their communications thereafter. The defendant argues that "[r]ather than expressing an inability to obtain financing as the plaintiffs' contend the e-mail actually represents that plaintiff can and will receive financing 'next week.' " (Emphasis in original.) Although the plaintiffs did seek an extension of the commitment and closing dates through their November 24 e-mail and subsequent change forms, it is undisputed that no agreement to an extension was ever reached. Thus, the only question for the court was whether the November 24 e-mail, taken as a whole, also contained sufficient language to notify the defendant of the plaintiffs' inability to obtain financing by the commitment date, as contemplated by the language contained in the mortgage contingency clause. The trial court's error in interpreting the plaintiffs' obligation under the contract left that question unanswered. Having concluded that the court incorrectly interpreted the agreement's notice requirement and erroneously found that the plaintiffs had failed to diligently pursue financing, we conclude that the judgment must be reversed and that a remand to the trial court for a new trial is necessary. See Phillipe v. Thomas , supra, 3 Conn. App. at 476-77, 489 A.2d 1056 (remanding for new trial when there was no factual determination of reasonableness of plaintiff's efforts to secure financing because trial court had improperly applied a good faith standard). II The plaintiffs' next claim is that the court erred in awarding the defendant attorney's fees. The plaintiffs claim that the award is "patently unreasonable ." The defendant responds that the plaintiffs' claim fails because: (1) the defendant met her burden to set forth evidence that her attorney's fees were reasonable; (2) "the trial court properly performed a lodestar calculation, and evaluated the reasonableness of the fees based on the factors set forth in Rule 1.5 (a) of the Rules of Professional Conduct"; and (3) "the trial court did in fact reduce the lodestar value based on factors in Rule 1.5 (a) to arrive at a reasonable value of attorney's fees, which was well within its discretion." We need not address the reasonableness of the award because we conclude that our reversal of the court's judgment also requires that the award of attorney's fees be vacated. See Ford v. Blue Cross & Blue Shield of Connecticut, Inc. , 216 Conn. 40, 63, 578 A.2d 1054 (1990) ("In view of our reversal of the judgment in this case, it can no longer be said that the plaintiff prevailed in this action; she, therefore, has no claim for attorney's fees based on the judgment that we have reversed." [Internal quotation marks omitted.] ). III On appeal, the defendant raises the doctrine of equitable estoppel as an alternative ground for affirmance of the court's decision, claiming that the plaintiffs represented that they expected to receive a mortgage commitment and acted as if the agreement was still in effect after the commitment date. The defendant argues that the plaintiffs "are estopped from claiming that they intended to terminate the agreement on November 24, 2012, because they continued to act under the terms of the agreement until at least January 11, 2013, even though the mortgage commitment date had passed and they had forfeited their right to any deposit monies when they failed previously to notify the [defendant] of any intent to terminate the agreement." The defendant claims that she relied on the plaintiffs' representations to her detriment, in that she kept the property off the market for almost six months and ultimately sold the property for $135,000 less than the contract price with the plaintiffs. We conclude that the record is inadequate to review this claim, which was not raised before the trial court. Our Supreme Court has held that "[o]nly in [the] most exceptional circumstances can and will this court consider a claim, constitutional or otherwise, that has not been raised and decided in the trial court.... This rule applies equally to alternate grounds for affirmance." (Internal quotation marks omitted.) Perez-Dickson v. Bridgeport , 304 Conn. 483, 498-99, 43 A.3d 69 (2012) ; see also Samnard Associates, LLC v. New Britain , 140 Conn. App. 290, 294 n.5, 58 A.3d 377 (2013) ("[a]bsent exceptional grounds, an appellate court should not review an alternate ground for affirmance that was not raised before, and decided by, the trial court"). Moreover, "[t]he appellee's right to file a [Practice Book] § 63-4 (a) (1) statement has not eliminated the duty to have raised the issue in the trial court." (Internal quotation marks omitted.) Thomas v. West Haven , 249 Conn. 385, 390 n.11, 734 A.2d 535 (1999), cert. denied, 528 U.S. 1187, 120 S.Ct. 1239, 146 L.Ed.2d 99 (2000) ; see also Perez-Dickson v. Bridgeport , supra, at 499, 43 A.3d 69. "The party claiming estoppel . has the burden of proof.... Whether that burden has been met is a question of fact that will not be overturned unless it is clearly erroneous." (Internal quotation marks omitted.) Celentano v. Oaks Condominium Assn. , 265 Conn. 579, 614, 830 A.2d 164 (2003) ; see also St. Germain v. St. Germain , 135 Conn. App. 329, 334, 41 A.3d 1126 (2012) ("[w]hether a party has met his burden of proving equitable estoppel is a question of fact"). "Equitable estoppel is a doctrine that operates in many contexts to bar a party from asserting a right that it otherwise would have but for its own conduct.... In its general application, we have recognized that [t]here are two essential elements to an estoppel-the party must do or say something that is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief, and the other party, influenced thereby, must actually change his position or do some act to his injury which he otherwise would not have done." (Internal quotation marks omitted.) St. Germain v. St. Germain , supra, at 334-35, 41 A.3d 1126. In the present case, the doctrine of equitable estoppel was not raised before the trial court. The defendant filed both a trial management report and a proposed statement of facts and conclusions of law, neither of which raised equitable estoppel as a defense. During trial, the defendant's counsel did not reference estoppel in his opening or closing statements. Finally, in its memorandum of decision, the court never addressed any estoppel argument. The defendant argues in her brief that the plaintiffs "intentionally concealed" the fact that they could not obtain financing "for the purpose of inducing the Yaggis to keep the property off the market." There were no findings made by the court as to intentional concealment or inducement to keep the property off the market. Accordingly, we decline to review the defendant's equitable estoppel claim. See Kline v. Kline , 101 Conn. App. 402, 404 n.3, 922 A.2d 261 (declining to review defendant appellee's alternate ground for affirmance because court did not find requisite facts for her claim of equitable estoppel), cert. denied, 284 Conn. 901, 931 A.2d 263 (2007) ; see also Conservation Commission v. Red 11, LLC , 119 Conn. App. 377, 388, 987 A.2d 398 (record inadequate to review defendant's claim of municipal estoppel), cert. denied, 295 Conn. 924, 991 A.2d 566 (2010). We note, however, that the defendant is not precluded from raising equitable estoppel on remand. The judgment is reversed and the case is remanded for a new trial. In this opinion the other judges concurred. Henry K. Yaggi III, who was originally named as a defendant in this action, died during the pendency of the action, and Valerie Yaggi was substituted as the administratrix of Henry Yaggi's estate. Accordingly, we refer to Valerie Yaggi in both of her capacities as the defendant. For ease of discussion, we address the plaintiffs' claims in a different order than that in which they appear in their brief. Because the plaintiffs' first two claims are intertwined, we will address them together. As detailed in the court's memorandum of decision, the suspense notice included eleven "suspense reasons (conditions needed prior to approval)." See footnote 10 of this opinion. The plaintiffs' e-mail also stated: "As we indicated in the termination letter, we did not think we would be able to get a loan for the purchase of the property. Per the mortgage contingency we wanted to terminate the contract and requested return of the deposits. For your convenience attached are the bank denial and suspension letters along with the termination letter and signed form. Please encourage your clients to sign the termination form and return to us.... We noticed your clients have reactivated the listing in the market. Please note they are not entitled to sell the property to another buyer(s) without terminate the contract with us." The plaintiffs previously had executed a termination of purchase and sale agreement dated January 11, 2013. The plaintiffs included as the reason for termination "[t]he sellers did not sign or reject for extension of mortgage contingency." The defendant contends, and the trial court found, that there was no evidence establishing that the January 11 termination form was ever sent to the defendant. We note that the mortgage contingency clause also required the plaintiffs to "apply for . financing immediately ." The court did not make any express findings regarding immediate application for financing, and neither party addresses this requirement in their briefs. Note that mortgage contingency clauses must be considered according to the language used therein. For example, some clauses contemplate cancellation of the contract whereas others contemplate rendering the agreement null and void. Compare McCoy v. Brown , 130 Conn. App. 702, 705, 24 A.3d 597 (clause provided in part that "[i]n the event Buyer shall fail to secure said mortgage commitment . he shall have the option of terminating this Contract" [internal quotation marks omitted] ), cert. denied, 302 Conn. 941, 29 A.3d 467 (2011), with Aubin v. Miller , 64 Conn. App. 781, 784, 781 A.2d 396 (2001) (clause provided in part that "[i]f Purchaser is unable to obtain a commitment for such loan . then this contract shall be null and void"). The contract in Luttinger v. Rosen , supra, 164 Conn. at 46, 316 A.2d 757, "was 'subject to and conditional upon the buyers obtaining first mortgage financing on said premises from a bank or other lending institution in an amount of $45,000 for a term of not less than twenty . years and at an interest rate which does not exceed [8.5 percent] per annum.' The plaintiffs agreed to use due diligence in attempting to obtain such financing. The parties further agreed that if the plaintiffs were unsuccessful in obtaining financing as provided in the contract, and notified the seller within a specific time, all sums paid on the contract would be refunded and the contract terminated without further obligation of either party." The contract in Barber v. Jacobs , supra, 58 Conn. App. at 332-33, 753 A.2d 430, contained a mortgage contingency clause, which provided that the " '[a]greement [was] contingent upon Purchaser obtaining a commitment for a loan, to be secured by a first mortgage on the premises, in an amount not in excess of $1,300,000....' The mortgage contingency required the plaintiff to 'make prompt application for such a loan' and 'to pursue said application with diligence.' " We note that the plaintiffs, in their principal brief to this court, reference certain documents that they identify as "new evidence" and include in their appendix. Their motion for articulation seeking to present the same documents was denied on the basis that the new evidence the plaintiffs sought to admit "consist[ed] of documents which the plaintiffs either had at the time of trial, or were available to the plaintiffs at the time of trial. The plaintiffs had every opportunity to introduce these documents into the record at the time of trial, however they failed to so ." In their reply brief, the plaintiffs recognize that the documents were not presented before the trial court. Accordingly, we do not rely on those documents in reviewing the court's decision. See Bank of America, N.A. v. Thomas , 151 Conn. App. 790, 798 n.4, 96 A.3d 624 (2014). The plaintiffs also point to a typographical error in the court's memorandum of decision, which incorrectly referred to the Yaggis as the plaintiffs. As the defendant notes, the plaintiffs' motion for rectification was granted, effectively correcting the scrivener's error. The December 6, 2012 suspense notice, issued by Mortgage Services III, LLC, stated that the "LOAN IS SUSPENDED FOR INCOMPLETE FILE FOR SUBMISSION." The notice included the following eleven "SUSPENSE REASONS (CONDITIONS NEEDED PRIOR TO APPROVAL)": (1) "RESPA SUSPENSE DOCS MUST BE RECEIVED AND CLEARED PRIOR TO U/W"; (2) "PROVIDE TYPED 1003 & 1008 PER TERMS BEING SUBMITTED"; (3) "BORROWER SIGNED 'UNDISCLOSED DEBT DISCLOSURE' IS REQUIRED"; (4) "4506T RESULTS MUST BE RECEIVED VERIFYING 2 YR HISTORY"; (5) "DOCUMENT REASON FOR OMISSION OF CHASE AUTO LOAN DEBT AND PROVIDE PAPER TRAIL"; (6) "DOCUMENT AND SOURCE ANY FUNDS USED TO PAYOFF AUTO LOAN DEBT AND CREDIT REPORT SUPPLEMENT VERIFYING PAID"; (7) "2010 W2'S FOR BORROWER AND CO-BORROWER"; (8) "2010 COMPLETE TAX RETURNS W/ ALL PAGES . SCH-C INCOME MUST BE AVERAGED & VERIFIED FOR 2 YRS"; (9) "DOCUMENT EARNEST MONEY CHECKS PER CONTRACT FOR $25,000 PER CONTRACT AND EVIDENCE CLEARED BORROWERS ACCT"; (10) "SALES CONTRACT IS MISSING PAGE 4 OF 4 OF WILLIAM RAVEIS SALES CONTRACT"; (11) "FYI . PER CONTRACT, IF PROPERTY REQUIRES ROOF REPAIRS, MUST BE DONE PRIOR TO CLOSING . MUST EVIDENCE INSPECTION OF ROOF AND MIN. LIFE OF 3 YRS." The notice further stated that "ALL OF THE ABOVE REQUIRED ITEMS ARE REQUIRED FOR END INVESTOR UNDERWRITING REVIEW FOR CONSIDERATION." The December 13, 2012 "Notice of Loan Denial," issued by United Wholesale Mortgage, provided the following reasons for denial of a mortgage loan: (1) "Credit History"; (2) "Insufficient Credit File for Cb . Borrower does not have installment tradeline reporting for 24 months opened and active in the last 6 months"; and (3) "We do not grant credit to any applicant on the terms and conditions you have requested." In the defendant's pretrial management report, the defendant identified as the sole issue in dispute "[w]hether plaintiffs breached a certain real estate purchase and sale agreement resulting in the forfeiture of their deposit monies pursuant to that agreement under the liquidated damages clause." After trial, the defendant submitted proposed findings of fact and conclusions of law, in which the defendant requested that the court conclude that the plaintiffs breached the agreement. The trial court did note: "Interestingly, both notices of denial are dated December 6, 2012, and December 13, 2012, and the plaintiffs submitted the third and fourth change forms in December, 2012, both of which are dated December 14, 2012, and December 21, 2012, respectively, requesting an extension of the financing deadlines, when they were fully aware that they had been denied a mortgage by two banks." This notation, made in the context of whether the plaintiffs had diligently pursued financing, is insufficient to permit review of a newly asserted claim of equitable estoppel.

12491208

SEAPORT CAPITAL PARTNERS, LLC v. Sheri SPEER Seaport Capital Partners, LLC v. Sheri Spear Seaport Capital Partners, LLC v. Sheri Speer et al. Seaport Capital Partners, LLC v. 76-78 Truman Street, LLC, et al.

Seaport Capital Partners, LLC v. Speer

2017-10-10

AC 39315

472

482

171 A.3d 472

171

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-09-08T21:16:17.237805+00:00

Fastcase

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

SEAPORT CAPITAL PARTNERS, LLC v. Sheri SPEER

SEAPORT CAPITAL PARTNERS, LLC v. Sheri SPEER Seaport Capital Partners, LLC v. Sheri Spear Seaport Capital Partners, LLC v. Sheri Speer et al. Seaport Capital Partners, LLC v. 76-78 Truman Street, LLC, et al. AC 39315 Appellate Court of Connecticut. Argued April 17, 2017 Officially Released October 10, 2017 Edward Bona, self-represented, the plaintiff in error. Lloyd L. Langhammer, with whom was Donna R. Skaats, for the defendant in error (Seaport Capital Partners, LLC). DiPentima, C.J., and Lavine and Flynn, Js.

4960

30319

FLYNN, J. The plaintiff in error, Edward Bona, brings this writ of error to challenge the decisions of the trial court granting the motions of the defendant in error, Seaport Capital Partners, LLC (Seaport), for order of payment, and denying Bona's motions to reargue the order of payment. Bona claims that the court (1) lacked subject matter jurisdiction, (2) improperly granted Seaport's motions for order of payment, and (3) improperly denied Bona's motions to reargue. We disagree with Bona and, accordingly, dismiss the writ of error. The following facts and procedural history are relevant to our review. On January 25, 2012, Seaport filed nine foreclosure actions against the defendant in error, Sheri Speer, as to rental properties that she owned in Norwich and New London. In all nine actions, Seaport filed motions for the appointment of a receiver of rents, to which Speer objected. On February 21, 2012, the court, Devine, J., granted Seaport's motions and appointed Bona as receiver of rents by agreement, with no bond to be posted. On June 7, 2012, Seaport filed motions for order requiring Bona to file receiver reports and to account for and turn over all rents collected on the nine properties. Judge Devine granted the motions and instructed "Speer and/or her agents . to turn over any money collected since the date of the order for receiver was granted to today's date . Attorney Bona . is to submit quarterly reports for each property accounting for money received and expenditures. Income received from each property is to be used for the debts of that property only." On December 21, 2012, Bona filed his first receiver report in all nine actions. Shortly thereafter, in March, 2013, Bona's duties as to two of the Norwich properties terminated because the properties were purchased in tax lien foreclosure actions. After Bona indicated that he did not wish to continue as the receiver on the remaining properties, Seaport filed motions to substitute Robert K. Jones as the receiver of rents, and the court, Cosgrove, J., granted the motions on May 6, 2013. In its order, the court ordered Bona to file a final receiver report for each property, including the two Norwich properties that had been sold, by May 13, 2013. On May 13, 2013, Bona filed a final receiver report in all nine actions. In June, 2013, he filed additional receiver reports that accounted for February, 2012 to April, 2013. In May, 2014, Bona filed motions asking the court to accept his receiver reports, to which Seaport objected. Subsequently, on December 8, 2015, Seaport filed motions in each of the nine actions for orders of payment, requesting the court to compel Bona to pay into court the amount of income he claimed in his receiver reports had been received for each property. In total, Seaport requested $180,044.32. Bona objected to these motions. The court, Hon. Joseph Q. Koletsky, judge trial referee, held a hearing on December 16, 2015, regarding Bona's motions to accept his receiver reports and Seaport's motions for order of payment. At the hearing, Bona argued that the court should not grant the motions for order of payment because he did not have the money requested. Bona claimed that anything he had collected, he deposited and handed over to Jones. Moreover, Bona admitted that Speer also was collecting rent from the properties, but he claimed that Speer gave him any payments that she had collected. The court informed Bona that the motions for order of payment were for funds that had not been accounted for, to which Bona responded that he did not have the funds. Judge Koletsky granted Seaport's motions for order of payment and set a due date of April 15, 2016. The amount due was $180,094.32, plus any rents that Bona collected from May, 2013, and June, 2013, but had not previously turned over to Jones. The amount due included both rent received and capital contributions made by Speer, which, according to the receiver reports, supplemented the rental income. Moreover, the court denied Bona's motions to approve his receiver reports. According to the court, although Bona admitted in the receiver reports to receiving money, the reports did not give a satisfactory explanation as to where the money went. The court further stated that, should Bona file a complete and accurate accounting by February 11, 2016, it would hold a hearing to determine the sufficiency of the receiver report and, upon request, reconsider the order for payment into court. On December 31, 2015, Bona filed motions in all nine actions to reargue the December 16, 2015 orders. On January 19, 2016, Judge Koletsky denied the motions to reargue, stating that "[u]nless and until the court has received from Attorney Bona the detailed account of all the monies received by him as receiver and where that money went (with copies of checks and any other documentation justifying all expenditures) the court does not intend to modify the potentially ruinous order to reimburse the court. The apparent failure of Attorney Bona to comprehend the serious difficulty he is facing is puzzling, and there is little more the court can do but to emphasize that there is no more basic duty for a receiver than to completely and honestly account for the funds which the receiver obtained as an officer of the Superior Court." In February, 2016, Bona filed receiver reports accounting for the nine properties from February, 2012 to May, 2013, the duration of his receivership. In these reports, Bona conceded that he did not begin to collect rents until September, 2012, and that prior to that date, Speer was collecting rents and documenting any expenditures. Moreover, Bona conceded that Speer continued to do so after September, 2012. Judge Koletsky held a hearing on February 16, 2016, at which he determined that Bona still had not filed satisfactory receiver reports. Judge Koletsky thus ordered Bona to file new reports in three weeks and reiterated its prior orders for Bona to pay the funds to the court. Bona did not file additional receiver reports. On March 16, 2016, Bona filed this writ of error in the Supreme Court concerning his appointment as receiver of rents and the orders requiring him to pay into court $180,094.32. Pursuant to Practice Book § 65-1, our Supreme Court transferred this writ of error to this court on June 16, 2016. Additional facts will be set forth as necessary. I Bona first claims that the court lacked subject matter jurisdiction, and, therefore, the receivership was void. Specifically, he argues that Seaport did not fully fund the mortgages on eight of the nine properties, and, as a result, Seaport did not have standing to commence the underlying foreclosure actions. Consequently, Bona argues, the court did not have subject matter jurisdiction over the underlying foreclosure actions and thus did not have the authority to name him as receiver of rents. We disagree. We begin our analysis with the applicable standard of review. "If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause.... A determination regarding a trial court's subject matter jurisdiction is a question of law [over which] . our review is plenary . "Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it.... [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . "Our Supreme Court has held that a holder of a note is presumed to be the owner of the debt, and unless the presumption is rebutted, may foreclose the mortgage under [General Statutes] § 49-17 . The production of the note establishes his case prima facie against the makers and he may rest there.... It [is] for the [party asserting lack of standing] to set up and prove the facts which limit or change the [note holder's] rights.... Put differently, [a] holder of a note has standing to bring an action for strict foreclosure pursuant to § 49-17." (Citations omitted; footnote added; internal quotation marks omitted.) Mengwall v. Rutkowski, 152 Conn.App. 459, 462-63, 102 A.3d 710 (2014). In the present case, Seaport presented the note for each of the nine mortgages. As the holder of the note, Seaport was entitled to a rebuttable presumption that it had standing to commence the underlying foreclosure actions. Bona has not presented any evidence to rebut this presumption. Rather, Bona merely claims that Seaport did not fully fund the mortgage loans on eight of the nine properties, and, therefore, the court lacked subject matter jurisdiction. Such conclusory statements are not sufficient to rebut the presumption that Seaport was the holder of the note and, consequently, owner of the debt. Accordingly, we conclude that the court had subject matter jurisdiction over the underlying foreclosure actions, and, therefore, the receivership was not void. II Bona next claims that the court improperly granted Seaport's motions for order of payment of income from the nine properties. Specifically, Bona argues that the record clearly indicates that Speer was collecting rents and documenting how the income was spent on the nine properties. Bona further argues that the majority of the funds were deposited in Speer's account, and any funds collected did not equal the $180,094.32 ordered. Moreover, Bona argues that the doctrine of judicial estoppel barred Seaport from seeking the payment of income that it had alleged Speer collected. Thus, Bona argues that the court improperly granted Seaport's motions ordering Bona to pay $180,094.32 to the court. We disagree with Bona. As we discuss subsequently in this opinion, Bona, as receiver, had a duty to collect the rents on the nine properties. This duty was not one which Bona could delegate to others. Moreover, the transactions involved in this matter were complicated by contributions made by Speer, which arguably were not rents, but for which Bona, in his receiver reports, indicated that Speer was reimbursed from the rents collected. None of the receiver reports indicates the amounts reimbursed to Speer and whether any contributions remained unreimbursed at the time of the orders of payment. Furthermore, although the receiver reports indicate that money was spent on maintenance and improvements to the properties, Bona could not authorize any repairs to the properties without the permission of the court, which was not granted. Consequently, we are not persuaded by Bona's arguments. A Bona first claims that the court improperly granted Seaport's motions for order of payment because Bona never collected the income. Specifically, Bona argues that the amount collected was significantly less than the $180,094.32 that he was ordered to pay. Bona further argues that Speer, not Bona, was collecting the rents and documenting how the money was spent on the nine properties, and Bona merely generated the reports based on the information given to him by Speer. Bona, therefore, challenges the validity of the court's conclusion that he, as receiver, was required to pay income that he had collected on the nine properties. The issue raised by Bona, that he never collected the money, involves the factual basis upon which the court rendered its decision. "[W]here the factual basis of the court's decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous." (Internal quotation marks omitted.) Butler v. Hartford Technical Institute, Inc., 243 Conn. 454, 467, 704 A.2d 222 (1997). The record supports the court's findings. "[W]hen a receiver is appointed in a foreclosure action to take charge of the property, he holds it as an arm of the court." (Internal quotation marks omitted.) Hartford Federal Savings & Loan Assn. v. Tucker, 13 Conn.App. 239, 243, 536 A.2d 962, cert. denied, 207 Conn. 805, 540 A.2d 373 (1988). Bona, as receiver of rent, was obligated to collect rent on the nine properties subject to the foreclosure actions. Such income was then to be turned over to the court. Bona, however, did not collect all of the rents and did not turn over the income. As a result, Seaport asked the court to order payment. Seaport filed nine separate motions, one in each of the foreclosure actions. In each motion, Seaport provided a numerical value that it claimed as the total income received for the named property during Bona's receivership, which spanned from February, 2012 to May, 2013. In support of the stated income, Seaport cited to receiver reports filed by Bona, as well as testimony and additional evidence when necessary. At the outset, we first must address the capital contributions made by Speer to the properties that were the subject of Docket No. CV-12-6012072-S, Docket No. CV-12-6012076-S, Docket No. CV-12-6012077-S, Docket No. CV-12-6012078-S, and Docket No. CV-12-6012079-S. It appears that both Seaport and the court included as income these capital contributions that supplemented the rental incomes. Although the question may exist as to whether such capital contributions should have been part of the $180,094.32, Bona indicated in his reports that Speer was reimbursed for her contributions from the rents collected. Moreover, he did not provide any account as to how much of the reimbursements were provided from the rents that he was obligated to collect and remit to the court. Accordingly, we cannot conclude that the court's finding as to the inclusion of Speer's contributions in the income collected was clearly erroneous. Turning now to the court's findings on the amount owed by Bona to the court, in Docket No. CV-12-6012072-S, Seaport claimed a total income of $11,903.47 for the property. To support its claim, Seaport cited to two different receiver reports filed by Bona, a report dated December 10, 2012, which states a total rental income of $4000, and a report dated June 21, 2013, which states a contribution of $7903.47 by Speer, totaling $11,903.47. In Docket No. CV-12-6012073-S, Seaport claimed a total income of $25,323 for the property. To support its claim, Seaport cited to a receiver report filed by Bona on October 15, 2013. The October 15, 2013 receiver report provides that a deposit of $2200 is to be delivered to the court, thus accounting for Seaport's claim that the total income collected included a $2200 forfeited security deposit. The receiver report records that $18,644 in rent payments was received, $200 of which was paid directly by the tenants and $18,444 of which was paid by third parties. In response to that report, Seaport claimed that the total rent collected was $22,178, stating that $3534 in rent received was not disclosed in the October 15, 2013 receiver report. It claimed that the rent collected from third parties totaled $22,923 because testimony on May 20, 2013, by the third parties provided that they had paid $22,923 on behalf of the tenants. It is Bona's burden to provide us with a record, and he has failed to provide this court with the transcript of the third parties' purported testimony. See Practice Book § 61-10(a) ; Chester v. Manis, 150 Conn.App. 57, 61, 89 A.3d 1034 (2014) ("[i]t is incumbent upon the appellant to take the necessary steps to sustain [his] burden of providing an adequate record for appellate review" [internal quotation marks omitted] ). As discussed subsequently in this opinion, although the court did not provide a memorandum of decision, it did state that it completed the calculations for the motions for order of payment. This court gives great deference to the findings of the trial court, whose function it is to weigh and interpret the evidence before it. Lyme Land Conservation Trust, Inc. v. Platner, 325 Conn. 737, 755, 159 A.3d 666 (2017). Nothing in the record that Bona has provided to us on appeal supports the conclusion that the court erroneously found that the total rent collected from third parties was $22,923, which, with the $200 also collected from the tenants, provides for a total collected rent of $23,123. Consequently, we shall not disturb the court's findings as to Docket No. CV-12-6012073-S. Therefore, the court's finding that the total income collected on the property was $25,323 was not erroneous. In Docket No. CV-12-6012074-S, Seaport claimed a total income of $2750 for the property. To support its claim, Seaport cited to a receiver report filed by Bona, in which Bona recorded that the rent received was $2750. In Docket No. CV-12-6012075-S, Seaport claimed a total income of $17,950 for the property. To support its claim, Seaport cited to a receiver report filed on June 24, 2013, in which Bona recorded that the rent received for the property was $17,950. In Docket No. CV-12-6012076-S, Seaport claimed a total income of $21,672.44. To support its claim, Seaport cited to a receiver report filed on June 24, 2013, in which Bona recorded that he received $12,924.97 in rent and that Speer contributed $8747.47 to the property, totaling $21,672.44 in income. In Docket No. CV-12-6012077-S, Seaport claimed a total income of $22,347.06. To support its claim, Seaport cited to a receiver report filed on June 11, 2013, in which Bona recorded that the rent received for the property was $16,325 and that Speer contributed $6912.06 to the property. In Docket No. CV-12-6012078-S, Seaport claimed a total income of $26,647.12. To support its claim, Seaport cited to the receiver report filed on June 11, 2013, in which Bona recorded that he received $19,775 in rent and that Speer contributed $6872.12 to the property, totaling $26,647.12 in income. In Docket No. CV-12-6012079-S, Seaport claimed a total income of $23,231.23. To support its claim, Seaport cited to a receiver report filed on June 11, 2013, in which Bona recorded that he received $19,074 in rent and that Speer contributed $4157.23, totaling $23,231.23 in income. In Docket No. CV-12-6012080-S, Seaport claimed a total income of $28,220. To support its claim, Seaport cited to a receiver report filed on June 24, 2013, in which Bona recorded that he received $28,220 in rent. Nearly every numerical value provided by Seaport as the income collected and subsequently ordered by the court for Bona to pay is supported by a receiver report that Bona filed with the court. Although the court did not provide an accompanying memorandum of decision in its order, in response to Bona's subsequent motion for articulation it stated that it had calculated the rents due during the period of Bona's receivership and thus determined, independent of Seaport's claims, the amount to be paid by Bona. The total income stated in the court's nine orders equals $180,094.32. Bona's claim that the properties did not generate this amount of income is without merit. Bona provided the income collected to the court through the receiver reports that he filed. If the stated income did not accurately reflect the income collected, Bona could have corrected the amounts in one of the numerous opportunities that he had to file new, satisfactory reports. His failure to do so does not excuse him from liability for the income that he reported. See Hartford Federal Savings & Loan Assn. v. Tucker, 196 Conn. 172, 178, 491 A.2d 1084, cert. denied, 474 U.S. 920, 106 S.Ct. 250, 88 L.Ed.2d 258 (1985). Moreover, Bona's claim that he did not collect much of the money, but rather that Speer did, is not persuasive because it was the duty of the receiver to collect the rents for the properties for which he was receiver. Even if Speer were collecting rents and documenting the amounts received, this does not absolve Bona of his obligations as receiver. As receiver, Bona, not Speer, was responsible for the collecting and accounting of rents. Therefore, the evidence and pleadings in the whole record do not support the conclusion that the court's finding of facts was clearly erroneous, and, accordingly, we conclude that the court properly granted the motions for order of payment. B Bona next claims that the court improperly granted Seaport's motions for order of payment because the doctrine of judicial estoppel barred Seaport from claiming that Bona owed funds that Seaport also alleged Speer had collected. As a result, Bona claims that the court abused its discretion in granting the motions. "[J]udicial estoppel prevents a party in a legal proceeding from taking a position contrary to a position the party has taken in an earlier proceeding.... [J]udicial estoppel serves interests different from those served by equitable estoppel, which is designed to ensure fairness in the relationship between parties.... The courts invoke judicial estoppel as a means to preserve the sanctity of the oath or to protect judicial integrity by avoiding the risk of inconsistent results in two proceedings." (Internal quotation marks omitted.) MacDermid, Inc. v. Cookson Group, PLC, 149 Conn.App. 571, 578, 89 A.3d 447, cert. denied, 312 Conn. 914, 93 A.3d 597 (2014). The doctrine of judicial estoppel does not apply to the circumstances of the present case. Seaport never took a position that was clearly inconsistent with one in an earlier proceeding. In fact, there was no earlier proceeding. Therefore, judicial estoppel does not apply. III Bona further claims that the court improperly denied his motions to reargue the court's orders for payment. Specifically, Bona argues that the court abused its discretion when it denied his motions to reargue because the total sum that the court had ordered Bona to pay was not collected by Bona, nor was it produced by the properties. We disagree. "The standard of review for a court's denial of a motion to reargue is abuse of discretion.... When reviewing a decision for an abuse of discretion, every reasonable presumption should be given in favor of its correctness.... As with any discretionary action of the trial court . the ultimate [question for appellate review] is whether the trial court could have reasonably concluded as it did.... "The 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 . claims of law that the [movant] claimed were not addressed by the court.... [A] motion to reargue [however] is not to be used as an opportunity to have a second bite of the apple ." Mengwall v. Rutkowski, supra, 152 Conn.App. at 466, 102 A.3d 710. Our review of the record reveals that the court did not abuse its discretion in denying Bona's motions to reargue. In support of his motions to reargue, Bona claimed that the court "ordered payments to be made, based solely on undocumented conjecture by [Seaport], of amounts of money that no one alleges or admits ever existed or were collected. No reports to date reflect any such sums as claimed by [Seaport] in the aggregate in the nine [foreclosure] actions." The funds ordered to be paid by Bona, however, were admitted by him in his receiver reports, and the total income listed in those reports totaled the amount that Bona was ordered to pay. Had the income reported in the receiver reports been incorrect, Bona could have corrected the numerical values in the multiple opportunities given to him to present satisfactory receiver reports. In fact, even when the court granted Seaport's motions for order of payment, it again gave Bona the opportunity to submit complete and accurate reports and informed Bona that, if such reports were satisfactory, the court, upon request, would consider revisiting the orders for payment. Bona, however, failed to file adequate receiver reports. In turn, Bona has failed to demonstrate that the court misapprehended the facts when granting Seaport's motions to order payment of funds. We therefore conclude that the court did not abuse its discretion in denying Bona's motions to reargue. The writ of error is dismissed. In this opinion the other judges concurred. Bona, who is a member of the bar of this state, appeared self-represented in bringing this writ of error. On the basis of the underlying loan documents, various other parties were also named as defendants in the foreclosure actions. Because Speer was named in all foreclosure actions, for purposes of simplicity we refer to her alone. Furthermore, although one action filed used the spelling, "Spear," in this opinion we use the spelling that appears more consistently throughout the record. At the time of his receivership appointment, Bona represented Speer. Shortly after being appointed receiver, Bona withdrew as Speer's attorney. Speer subsequently appealed from the orders appointing Bona as the receiver of rents. Seaport filed a motion to dismiss the appeal for lack of final judgment, which this court granted on May 16, 2012. On July 25, 2012, Speer again appealed various orders, and again this court granted Seaport's motion to dismiss the appeal for lack of final judgment. The orders granting Seaport's motions stated: "By agreement Attorney Bona is appointed as receiver of rents, with no bond to be posted. Parties agree to exchange financial information and proof of insurance within two weeks." Although filed in all nine actions, the receiver report did not contain any information regarding one of the New London properties filed under Docket No. CV-12-6012080-S. Seaport further complicated this already complicated matter by sending notice to the tenants of the foreclosed properties to pay it, not Bona, the rent due. This demand was revoked, however, and the tenants were notified before any payments were made to Seaport. In the foreclosure action filed under Docket No. CV-12-6012080, Seaport's motion for order requested $28,220 and the court ordered Bona to pay $28,270. Specifically, Bona recorded in his receiver reports that "[t]he owner of the properties made capital contributions to supplement rental incomes, if any, sustaining many of the units to ensure code compliance, habitability and taxes, etc. The estimated capital contributions of the property owner toward all nine properties [exceed] $55,000 . The owner was reimbursed when possible from the rent collections." The February, 2016 reports best illustrate the problem with which the court was faced. Although Bona reported the rents received, he did not, in many cases, receive such rent. Moreover, although the reports list expenses for items such as supplies and labor, and include copies of documents such as receipts and bills, the reports lack any explanation for such documents, and the court had not authorized any expenditures for the maintenance and improvement of the properties. General Statutes § 49-17 provides: "When any mortgage is foreclosed by the person entitled to receive the money secured thereby but to whom the legal title to the mortgaged premises has never been conveyed, the title to such premises shall, upon the expiration of the time limited for redemption and on failure of redemption, vest in him in the same manner and to the same extent as such title would have vested in the mortgagee if he had foreclosed, provided the person so foreclosing shall forthwith cause the decree of foreclosure to be recorded in the land records in the town in which the land lies." We note in passing that Bona incorrectly relies on General Statutes § 49-3, which applies to mortgages securing future advancements of money for construction or repair of buildings or improvements. Nothing in the record indicates that the loans granted to Speer were such open-ended construction loans. Moreover, § 49-3 does not require that a loan be fully funded for the holder of a note to have standing to foreclose, as argued by Bona. At the December 16, 2015 hearing, Bona claimed that Speer turned over any rents that she had collected on the nine properties. His appellate brief, however, states that "the vast majority of the funds collected were in fact deposited into . Speer's bank account." Although the receiver reports were not in the appendices of either brief, we were able to access all reports filed by Bona through the Superior Court electronic filing system. A discrepancy between the two reports exists, for the June 21, 2013 report states that the total rent received was $3000, not $4000. The June 21, 2013 report, however, does not provide an explanation for this discrepancy and does not provide documentation as to the $3000, whereas the December 10, 2012 report provides an attached accounting that records a rental income of $4000 for the property. As Bona has not proven, or even suggested, that the rental income was $3000 rather than $4000, we shall follow the December 10, 2012 receiver report stating $4000, as the court did. The total of $16,325 and $6912.06 is $23,237.06, not $22,347.06. On the receiver report, however, the total of $16,325 and $6912.06 is given as $22,347.06. It appears that Bona made a calculation error on the receiver report, on which Seaport and the court subsequently relied. Bona filed a final receiver report in February, 2016, in each of the foreclosure cases. The court, however, determined that the filed documents did not resemble receiver reports and were unsatisfactory. As a result of Bona's failure to account for funds, the court reiterated its order that he reimburse the court for the income listed in the orders for payment. Bona also argues that Seaport's claims previously had been settled before Judge Cosgrove on April 3, 2014. Bona failed to raise this claim in the trial court, and, therefore, it was not preserved for appellate review. See Practice Book § 60-5.

12491886

KIRBY OF NORWICH v. ADMINISTRATOR, UNEMPLOYMENT COMPENSATION ACT, et al. Kirby of Norwich v. Administrator, Unemployment Compensation Act

Kirby of Norwich v. Adm'r, Unemployment Comp. Act

2018-01-31

SC 19825, (SC 19826), (SC 19827)

1180

1193

176 A.3d 1180

176

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

2021-09-08T21:16:17.237805+00:00

Fastcase

Rogers, C.J., and Palmer, McDonald, Robinson and Keller, Js.

KIRBY OF NORWICH v. ADMINISTRATOR, UNEMPLOYMENT COMPENSATION ACT, et al.

KIRBY OF NORWICH v. ADMINISTRATOR, UNEMPLOYMENT COMPENSATION ACT, et al. Kirby of Norwich v. Administrator, Unemployment Compensation Act SC 19825, (SC 19826), (SC 19827) Supreme Court of Connecticut. Argued October 18, 2017 Officially released January 31, 2018 Barbara M. Schellenberg, with whom were Stuart M. Katz and Jeffrey R. Babbin, for the appellant (plaintiff). Krista D. O'Brien, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Philip M. Schulz, assistant attorney general, for the appellee (named defendant in the first and second cases, and defendant in the third case). Jeffrey J. White and Thomas J. Dolon filed a brief for the Direct Selling Association as amicus curiae. Rogers, C.J., and Palmer, McDonald, Robinson and Keller, Js. January 31, 2018, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

6892

43575

PALMER, J. The issue that we must resolve in these appeals is whether certain individuals who have engaged in door-to-door sales of vacuums provided by the plaintiff, Kirby of Norwich, also known as GP Industries of Norwich, Inc., should be classified as independent contractors or, instead, as employees of the plaintiff for purposes of the Unemployment Compensation Act (act), General Statutes § 31-222 et seq. The named defendant, the Unemployment Compensation Act Administrator (administrator), found that there was an employer-employee relationship between the plaintiff and those individuals, thereby obligating the plaintiff to contribute to the state's unemployment compensation fund (fund), because the plaintiff failed to meet its burden of satisfying the requirements of all three prongs of the ABC test, codified at General Statutes § 31-222 (a) (1) (B) (ii) (I), (II) and (III), with parts A, B and C of the test corresponding to clauses (I), (II) and (III), respectively, of that statutory provision. After the administrator's decisions were sustained by the Employment Security Appeals Division (appeals division) and the defendant Employment Security Board of Review (board), the plaintiff appealed to the trial court, which agreed with the administrator in three separate cases that such individuals are the plaintiff's employees on the ground that the plaintiff failed to establish that the individuals are "customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed" for the plaintiff, within the meaning of part C of the ABC test. See General Statutes § 31-222 (a) (1) (B) (ii) (III). The plaintiff now appeals from the judgments of the trial court, claiming that the court in each case interpreted § 31-222 (a) (1) (B) (ii) (III) too narrowly and, as a result, incorrectly concluded that the individuals engaged in door-to-door sales of the plaintiff's product were employees of the plaintiff rather than independent contractors. We affirm the judgments of the trial court. The record reveals the following relevant facts and procedural history. The plaintiff is in the business of selling Kirby vacuums to consumers. Its sales force consists of door-to-door sales representatives who sell the vacuums exclusively by performing demonstrations in the homes of potential customers. The plaintiff provides its sales representatives with leads, makes appointments with customers on their behalf, and provides them with nonmandatory training. In Docket No. SC 19825, the administrator determined that the plaintiff had an employer-employee relationship with one of its sales representatives, the defendant Bryant Gardner, and was therefore liable to make contributions to the fund. The administrator determined that the plaintiff had failed to establish any of the three requirements of the ABC test, which, as we previously explained, are set forth in clauses (I), (II) and (III) of § 31-222 (a) (1) (B) (ii). See footnote 2 of this opinion. The plaintiff appealed from this decision to the appeals division. An appeals referee conducted an evidentiary hearing, at which the plaintiff's president, Vess Zaprianov, testified that Gardner independently sold cell phones while he was engaged as a vacuum sales representative for the plaintiff. The appeals division sustained the decision of the administrator on the ground that the plaintiff had failed to establish the criteria set forth in any of the three prongs of the ABC test. The plaintiff then appealed from the appeals division's decision to the board. The board concluded that, although the plaintiff had established that Gardner had sold cell phones during the course of his work relationship with the plaintiff, the plaintiff had provided "no evidence that [Gardner] was engaged in the independent sale of vacuum[s] . before, during or after his relationship with the [plaintiff]" and, therefore, that it had failed to establish that Gardner was "customarily engaged in an independently established . business of the same nature as that of the service performed," as required by part C of the ABC test. (Internal quotation marks omitted.) The board did not address the first two prongs of the ABC test. The plaintiff appealed from the board's decision to the trial court. The trial court, Hon. Seymour L. Hendel , judge trial referee, agreed with the board that the requirements of part C were not satisfied because the plaintiff had presented no evidence to establish that Gardner was engaged in an independent vacuum sales business, and the court rendered judgment dismissing the plaintiff's appeal. In Docket No. SC 19826, the administrator determined that the plaintiff had an employer-employee relationship with its sales representative, the defendant Rick Magee. The plaintiff appealed from this decision to the appeals division. An appeals referee conducted an evidentiary hearing, at which Zaprianov testified that Magee worked at a church. The appeals division sustained the administrator's decison on the ground that the plaintiff had failed to establish the criteria set forth in any of the three prongs of the ABC test. The plaintiff then appealed from the decision of the appeals division to the board. The board concluded that the plaintiff had provided "no evidence that [Magee] was engaged in the independent sale of vacuum[s] . before, during or after his relationship with the [plaintiff]" and, therefore, that it had failed to establish that Magee was "customarily engaged in an independently established . business of the same nature as that of the service performed," as required by part C of the ABC test. (Internal quotation marks omitted.) Again, the board did not address the first two prongs of the ABC test. The plaintiff appealed from the board's decision to the trial court, Hon. Seymour L. Hendel , judge trial referee. As in the case involving Gardner, Judge Hendel agreed with the board that the requirements of part C were not satisfied because the plaintiff had presented no evidence to establish that Magee was engaged in an independent vacuum sales business, and rendered judgment dismissing the plaintiff's appeal. In Docket No. SC 19827, the administrator conducted an audit of the plaintiff's business and concluded that the plaintiff's entire sales force should be classified as employees for purposes of the act. The plaintiff appealed from this determination to the appeals division. An appeals referee conducted an evidentiary hearing, at which the plaintiff presented evidence that many of the plaintiff's sales representatives sold vacuums for only a very short time period. Specifically, according to the plaintiff, the evidence showed that, out of a total of 378 sales representatives who worked for the plaintiff between 2012 and 2014, 194 worked for only one week and 104 worked for between two weeks and one month. The appeals referee sustained the administrator's determination on the ground that the plaintiff had failed to establish the criteria set forth in any of the three prongs of the ABC test. The plaintiff then appealed from the decision of the appeals division to the board. The board concluded that the plaintiff had "failed to present any evidence, such as business cards, advertisements or web sites, to show that any of the individuals in question were 'customarily engaged' in a business of the same nature as the [plaintiff]," as required by part C of the ABC test. Again, the board did not address the first two prongs of the test. The plaintiff appealed to the trial court. The court, Hon. Robert C. Leuba , judge trial referee, concluded that "the record is replete with evidence to support the conclusion of the board that an employer-employee relationship existed" and dismissed the plaintiff's appeal. Thereafter, the plaintiff filed a motion for articulation of the factual and legal bases for Judge Leuba's decision. In response, Judge Leuba issued an articulation in which he explained that, to meet the requirements of part C of the ABC test, the plaintiff bore "the burden of maintaining that its sales persons were customarily engaged as independently established sellers of vacuum [s] ." Because it had failed to do so, Judge Leuba concluded that the board properly determined that the sales representatives were employees. The plaintiff then filed the present appeals, which were subsequently consolidated for purposes of argument and briefing. The plaintiff claims that, in each case, the trial court incorrectly upheld the board's unduly narrow interpretation of part C of the ABC test. Specifically, the plaintiff contends that part C was satisfied because the plaintiff's sales representatives have an occupation or calling of the same nature as that involved in the service performed for the plaintiff that they can pursue after terminating their services to the plaintiff, and the plaintiff was not required to establish that the sales representatives actually independently engaged in that occupation or calling while providing services to the plaintiff. We conclude that, because the plaintiff presented no evidence that its sales representatives were "customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed" for the plaintiff during their relationship with the plaintiff; General Statutes § 31-222 (a) (1) (B) (ii) (III) ; the trial court correctly concluded that the plaintiff had not established the requirements of part C and properly dismissed the plaintiff's appeals. We begin our analysis with the standard of review. The proper interpretation of § 31-222 (a) (1) (B) (ii) (III) presents a question of law. See, e.g., JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act , 265 Conn. 413, 418, 828 A.2d 609 (2003). Although "[o]ur review of an agency's decision on questions of law is limited by the traditional deference that we have accorded to that agency's interpretation of the acts [that] it is charged with enforcing"; (internal quotation marks omitted) Church Homes, Inc. v. Administrator, Unemployment Compensation Act , 250 Conn. 297, 303, 735 A.2d 805 (1999) ; "[i]t is well settled . that we do not defer to the board's construction of a statute . when . the [provision] at issue previously ha[s] not been subjected to judicial scrutiny or when the board's interpretation has not been time tested." (Internal quotation marks omitted.) JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act , supra, at 418, 828 A.2d 609. Because the administrator has neither expressly claimed nor demonstrated that the board's interpretation of § 31-222 (a) (1) (B) (ii) (III), as applied to the facts of these cases, is time tested or that its interpretation previously has been subject to judicial scrutiny, our review is plenary. See, e.g., Southwest Appraisal Group, LLC v. Administrator, Unemployment Compensation Act , 324 Conn. 822, 838 n.10, 155 A.3d 738 (2017) (rejecting claim of administrator that board's interpretation of part C of ABC test was time tested in light of "fact sensitivity" of board's decisions). For purposes of the act, "employment" is defined by § 31-222 (a) (1) (B) (ii), which provides in relevant part that "[s]ervice performed by an individual shall be deemed to be employment subject to [the act] irrespective of whether the common law relationship of master and servant exists, unless and until it is shown to the satisfaction of the administrator that (I) such individual has been and will continue to be free from control and direction in connection with the performance of such service, both under his contract for the performance of service and in fact; and (II) such service is performed either outside the usual course of the business for which the service is performed or is performed outside of all the places of business of the enterprise for which the service is performed; and (III) such individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed ." Because this statutory provision is in the conjunctive, "unless the party claiming the exception to the rule that service is employment shows that all three prongs of the test have been met, an employment relationship will be found." JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act , supra, 265 Conn. at 419, 828 A.2d 609. It is well established that, "[w]hen interpreting provisions of the act, we take as our starting point the fact that the act is remedial and, consequently, should be liberally construed in favor of its beneficiaries.... Indeed, the legislature underscored its intent by expressly mandating that the act shall be construed, interpreted and administered in such [a] manner as to presume coverage, eligibility and nondisqualification in doubtful cases. General Statutes § 31-274 (c).... We also note that exemptions to statutes are to be strictly construed." (Citation omitted; internal quotation marks omitted.) Standard Oil of Connecticut, Inc. v. Administrator, Unemployment Compensation Act , 320 Conn. 611, 616, 134 A.3d 581 (2016). This is not the first time that we have had occasion to consider the scope of part C of the ABC test. In JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act , supra, 265 Conn. at 413, 828 A.2d 609, the plaintiff, JSF Promotions, Inc. (JSF), "operate[d] a business providing individuals to demonstrate products of various manufacturers to consumers, primarily in supermarkets." (Internal quotation marks omitted.) Id., at 415, 828 A.2d 609. Following an audit by the administrator, it was determined that the demonstrators were employees for purposes of the act. See id. JSF appealed from this determination to the appeals division, which agreed with the administrator's determination. See id. JSF then appealed to the board, which upheld the decision of the appeals division. See id., at 415-17, 828 A.2d 609. JSF appealed from board's decision to the trial court, which reversed the board's decision. Id., at 417, 828 A.2d 609. The trial court concluded that, because the demonstrators were "free to work for a competitor of [JSF], or even [to] compete directly, during the same period [that they were] doing similar work . [for JSF]"; (internal quotation marks omitted) id., at 419, 828 A.2d 609 ; the requirements of part C of the ABC test were met. Id., at 420, 828 A.2d 609. The administrator then appealed. Id., at 417, 828 A.2d 609. We observed that part C required the plaintiff to prove that the individuals in question were "customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed ." (Internal quotation marks omitted.) Id., at 418, 828 A.2d 609. We then concluded that this requirement was not satisfied when the individuals were "free to engage in an independently established trade, occupation, profession or business, but . [had] not done so customarily ." (Emphasis in original.) Id., at 420, 828 A.2d 609. We also quoted with approval the holding of the court in McGuire v. Dept. of Employment Security , 768 P.2d 985, 988 (Utah App.), cert. denied, 109 Utah Adv. 39 (1989), that "the appropriate inquiry under part [C] is whether the person engaged in covered employment actually has such an independent business, occupation, or profession, not whether he or she could have one." (Internal quotation marks omitted.) JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act , supra, 265 Conn. at 421-22, 828 A.2d 609. We reasoned that "[t]o conclude otherwise would undermine the purpose of the [act], which is to protect those who are at risk of unemployment if their relationship with a particular employer is terminated." Id., at 420, 828 A.2d 609. In Southwest Appraisal Group, LLC v. Administrator, Unemployment Compensation Act , supra, 324 Conn. at 822, 155 A.3d 738, however, we clarified that, under our decision in JSF Promotions, Inc. , a putative employer is not always required to present "evidence of the performance of services for third parties . to prove part C of the ABC test ." Id., at 825, 155 A.3d 738. Rather, such evidence "is a single factor that may be considered under the totality of the circumstances analysis governing that inquiry." Id. ; see also id., at 831-82, 155 A.3d 738 (under JSF Promotions, Inc. , "a putative employee's work for other entities is a relevant, but not dispositive, factor in the totality of the circumstances analysis that governs the relevant inquiry under part C"). "This totality of the circumstances test . evaluates the dynamics of the relationship between the putative employee and the employer; there is no dispositive single factor or set of factors." (Internal quotation marks omitted.) Id., at 839, 155 A.3d 738. In addition to the fact that a putative employee actually performed work of the same nature for third parties, factors that may be relevant when determining whether part C is satisfied include, but are not limited to, the fact that the putative employee maintained a home office, that he was independently licensed by the state, that he had business cards, that he sought similar work from third parties, that he maintained his own liability insurance, and that he advertised his services to third parties. See id., at 827, 839-40, 155 A.3d 738. In the present case, the plaintiff presented no evidence that any of these factors existed with respect to any of its sales representatives. We must conclude, therefore, that the trial court properly determined that the plaintiff had not established part C of the ABC test. In support of its claim to the contrary, the plaintiff cites to this court's decision in Electrolux Corp. v. Danaher , 128 Conn. 342, 23 A.2d 135 (1941), in which we concluded that the trial court properly had determined that the sales representatives of the plaintiff in that case, Electrolux Corporation (Electrolux), which sold vacuums door-to-door, were not Electrolux' employees for purposes of the then existing Unemployment Compensation Act, General Statutes (Supp. 1939) § 1334e (a) (1); see id., at 347, 349-51, 23 A.2d 135 ; but were "engaged in an independent calling ." Id., at 349, 23 A.2d 135. The plaintiff in the present case contends that, because it has the same relationship with its sales representatives that Electrolux had with its sales representatives, that case controls the outcome in the present case. The plaintiff fails to recognize, however, that, in Electrolux Corp. , the sole issue presented was whether, under the common law, the relationship between Electrolux and its sales representatives was that of master and servant; see id., at 347, 23 A.2d 135 ; which turned on whether Electrolux had "the right of general control over the means and methods . of the sales representatives ." Id., at 349, 23 A.2d 135, citing Robert C. Buell & Co. v. Danaher , 127 Conn. 606, 610, 18 A.2d 697 (1941) ("[t]he fundamental distinction between an employee and an independent contractor depends [on] the existence or nonexistence of the right to control the means and methods of work" [internal quotation marks omitted] ); Beaverdale Memorial Park, Inc. v. Danaher , 127 Conn. 175, 179, 15 A.2d 17 (1940) (same); Jack & Jill, Inc. v. Tone , 126 Conn. 114, 119, 9 A.2d 497 (1939) ("[t]he controlling consideration in the determination [of] whether . the relationship of master and servant exists, or that of [an] independent contractor, is . [whether] the employer [has] the general authority to direct what shall be done and when and how it shall be done-the right of general control of the work" [internal quotation marks omitted] ); Northwestern Mutual Life Ins. Co. v. Tone , 125 Conn. 183, 191, 4 A.2d 640 (1939) ("[i]n many instances the decisive factor in determining whether one who performs services for another is a servant or is exercising an independent employment is the right of control [that] the former has over the other, the right to direct what shall be done and when and how it shall be done . the right to the general control" [internal quotation marks omitted] ). The legislature amended the act in 1971, however, to include the ABC test. See, e.g., F.A.S. International, Inc. v. Reilly , 179 Conn. 507, 511, 427 A.2d 392 (1980) ("[i]n addition to codifying the common-law rules applicable to determine the existence of an employer-employee relationship, the act was amended in 1971 to include the so-called ABC test" [internal quotation marks omitted] ). Thus, "under [current] Connecticut law, service may be employment and [an individual] may be an employee even if the common-law relationship of master and servant does not exist," if the putative employer fails to establish all three prongs of the ABC test. Id. In other words, under current law, even if a putative employer establishes under the common-law test for employment, which is now contained in part A of the ABC test, that the putative employee is not under its control and direction, if the putative employer fails to establish part C, it will still be liable under the act. Although Electrolux Corp. continues to be good law, the case provides guidance only with respect to part A of the ABC test, and is not controlling when part C of the test is at issue. The plaintiff also contends that Daw's Critical Care Registry, Inc. v. Dept. of Labor , 42 Conn. Supp. 376, 622 A.2d 622 (1992), aff'd, 225 Conn. 99, 622 A.2d 518 (1993), and F.A.S. International, Inc. v. Reilly , supra, 179 Conn. at 507, 427 A.2d 392, support its position. These cases, however, are readily distinguishable. In Daw's Critical Care Registry, Inc. , the trial court found, in a decision that this court later adopted; Daw's Critical Care Registry, Inc. v. Dept. of Labor , supra, 225 Conn. at 102, 622 A.2d 518 ; that part C was satisfied because a large majority of the putative employees-nurses who performed services that were arranged by the plaintiff-"worked for other agencies at other medical facilities performing similar services while also working on assignments [for the plaintiff]." Daw's Critical Care Registry, Inc. v. Dept. of Labor , supra, 42 Conn. Supp. at 408, 622 A.2d 622. In F.A.S. International, Inc. , we concluded that part C was satisfied because the evidence showed that the putative employees-artists, writers and photographers who analyzed and corrected the work of the correspondence students of the plaintiff, F.A.S. International, Inc.-"did [freelance] work . for others as well as for F.A.S. [International, Inc.] when work was available." F.A.S. International, Inc. v. Reilly , supra, at 510, 427 A.2d 392. Thus, unlike in the present case, in both of the foregoing cases, there was evidence to support the conclusion that the putative employees "customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed," as required by part C of the ABC test. General Statutes § 31-222 (a) (1) (B) (ii) (III). The plaintiff further contends that we should reconsider and overrule our holding in JSF Promotions, Inc. that part C is satisfied only if the putative employee is actually "engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed"; (internal quotation marks omitted) JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act , supra, 265 Conn. at 420, 828 A.2d 609 ; and not if the putative employee is merely free to engage in an independent occupation, because the interpretation is unworkable and leads to absurd results. Specifically, the plaintiff contends that, under this interpretation, a business owner must monitor its sales representatives constantly to determine if they are engaged in independently established occupations, it is illogical to treat employees who are performing identical work differently depending on whether they are engaged in independently established occupations, and it is illogical to treat an individual worker as an independent contractor if the worker is engaged in an independently established occupation when hired but then to treat him as an employee if he later decides to work exclusively for the putative employer. The plaintiff also contends that this interpretation has a negative effect on the freedom of workers to decide how they wish to earn a living because businesses will be discouraged from hiring workers who have a job in another field and who wish to work only part-time or for a short period to supplement their income. In support of this contention, the plaintiff relies on our decision in Standard Oil of Connecticut, Inc. v. Administrator, Unemployment Compensation Act , supra, 320 Conn. at 611, 134 A.3d 581, in which we cautioned against interpreting the act too liberally in favor of coverage merely because it is remedial legislation. See id., at 657-58, 134 A.3d 581. We stated in that case that "[n]o legislation pursues its purposes at all costs." (Internal quotation marks omitted.) Id., at 657, 134 A.3d 581. Rather, remedial statutes "achieve a particular amount of [their] objective, at a particular cost [to] other interests. An agency cannot treat a statute as authorizing an indefinite march in a single direction.... Deciding what competing values will or will not be sacrificed to the achievement of a particular objective is the very essence of legislative choice-and it frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute's primary objective must be the law." (Internal quotation marks omitted.) Id., at 657-58, 134 A.3d 581. The plaintiff also relies on the decisions of several of our sister states that support the proposition that part C is satisfied if the putative employee is free to engage in an independently established occupation, even if the putative employee does not actually do so. See Commissioner of Unemployment Assistance v. Town Taxi of Cape Cod, Inc. , 68 Mass. App. 426, 432, 862 N.E.2d 430 (2007) (finding that taxi drivers were independent contractors because they were free to operate their own taxi services, to drive for another service, to find customers on their own, and to engage in other employment or to generate their own business while using taxis leased from putative employer); see also Athol Daily News v. Board of Review of the Division of Employment & Training , 439 Mass. 171, 181, 786 N.E.2d 365 (2003) ("[t]he better approach to the evaluation required by part [C] is to consider whether the service in question could be viewed as an independent trade or business because the worker is capable of performing the service [for] anyone wishing to avail [himself or herself] of the services or, conversely, whether the nature of the business compels the worker to depend on a single employer for the continuation of the services"); Trauma Nurses, Inc. v. Board of Review , 242 N.J. Super. 135, 148, 576 A.2d 285 (App. Div. 1990) (finding that nurses are independent contractors for employment broker because they were "able to obtain positions either as full-time employees, part-time employees, independent contractors, shift workers, etc."); Beare Co. v. State , 814 S.W.2d 715, 720 (Tenn. 1991) (finding that putative employees were independent contractors because they were free to work at other businesses without interference from putative employer). Although we recognize the appeal of the plaintiff's arguments, we are not persuaded that we should overrule JSF Promotions, Inc. We acknowledge that a narrow interpretation of part C of the ABC test imposes significant burdens on businesses, like the plaintiff, which rely primarily or significantly on short-term or part-time workers who operate outside of the businesses' direction and control, and outside their places of business. To adopt the plaintiff's interpretation of part C, however, would require us to write the provision entirely out of § 31-222 (a) (1) (B) (ii). Any worker who provides services to a business necessarily has a "trade, occupation, profession or business" that the worker would be free to engage in at some point for another similar entity after his relationship with the business has terminated. If evidence that the worker is actually performing those services for another entity during its relationship with the putative employer were not required, part C would be rendered meaningless. We will not interpret the ABC test in such a manner. Although we are sympathetic to the plaintiff's claim that part C creates certain, undesirable practical consequences as applied to the specific facts and circumstances of this case, any decision to alter or modify part C on the basis of a determination that, under such facts and circumstances, its costs outweigh its benefits must be made by the legislature, not this court. We conclude that the trial court correctly determined that the plaintiff had failed to establish part C of the ABC test because it presented no evidence that its sales representatives are "customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed ." General Statutes § 31-222 (a) (1) (B) (ii) (III). Accordingly, we agree with the administrator that the trial court properly dismissed the plaintiff's appeals. The judgments are affirmed. In this opinion the other justices concurred. See General Statutes § 31-225 (a) ("Each contributing employer who is subject to [the act] shall pay to the administrator contributions, which shall not be deducted or deductible from wages, at a rate which is established and adjusted in accordance with the provisions of section 31-225a, stated as a percentage of the wages paid by said employer with respect to employment. In no event shall any employer be required to pay contributions on any amount of wages for which said employer has previously paid contributions."). General Statutes § 31-222 (a) (1) (B) (ii) provides in relevant part: "Service performed by an individual shall be deemed to be employment subject to [the act] irrespective of whether the common law relationship of master and servant exists, unless and until it is shown to the satisfaction of the administrator that (I) such individual has been and will continue to be free from control and direction in connection with the performance of such service, both under his contract for the performance of service and in fact; and (II) such service is performed either outside the usual course of the business for which the service is performed or is performed outside of all the places of business of the enterprise for which the service is performed; and (III) such individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed ." The facts pertinent to our resolution of these appeals generally are not in dispute. To the extent that any of them may have been disputed in the trial court, however, the following statement of the facts is predicated on findings by the trial court that have not been challenged on appeal. Because the facts of Magee's case were so similar to those of Gardner's case, Judge Hendel consolidated the two appeals and issued a single memorandum of decision addressing both appeals. The plaintiff appealed from the judgments of the trial courts to the Appellate Court, and we transferred the appeals to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1 or 65-2. After these appeals were filed, this court granted permission to the Direct Selling Association to file an amicus curiae brief in support of the plaintiff's position. Because all three appeals involve the same issue, and because Judges Hendel and Leuba engaged in the same analysis and reasoning in reaching their respective decisions, we hereinafter refer collectively to Judges Hendel and Leuba as the trial court. The administrator is the sole defendant participating in these appeals. We explained in Southwest Appraisal Group, LLC , however, that "[o]ur conclusion in JSF Promotions, Inc. , was wholly consistent with the factual records considered in this court's previous part C jurisprudence. See F.A.S. International, Inc. v. Reilly , [179 Conn. 507, 514-15 and n.6, 427 A.2d 392 (1980) ] (holding that art school satisfied part C with proof that artists, writers, and photographers who reviewed work of its students practiced their artistic professions elsewhere independently of school, in contrast to delivery person in Rozran v. Durkin , 381 Ill. 97, 105, 45 N.E.2d 180 [1942], with essentially full-time schedule, with no discussion of financial viability of artists' careers beyond their adjunct work for school or other indicia of independent businesses); Daw's Critical Care Registry, Inc. v. Dept. of Labor , [42 Conn. Supp. 376, 410-11, 622 A.2d 622 (1992), aff'd, 225 Conn. 99, 622 A.2d 518 (1993) ] (holding [that] part C [was] satisfied with respect to licensed nurses who received assignments from referral service, and relying on their performance of assignments for other medical facilities while working for plaintiff, to reject argument that nurses needed 'a saleable business before they could be considered customarily engaged in an independently established profession' .)." Southwest Appraisal Group, LLC , v. Administrator, Unemployment Compensation Act , supra, 324 Conn. at 837 n.8, 155 A.3d 738. We recognize that there was evidence that Gardner had "sold cell phones" during his relationship with the plaintiff. There is no evidence, however, as to the manner in which Gardner sold cell phones, that is, whether he was a retail sales clerk, a telemarketer or a door-to-door salesman, or whether he sold the phones by some other method. In the absence of any such evidence, or other indicia that he had an independent occupation, we cannot conclude that Gardner was engaged independently in a business of the same nature as the service that he performed for the plaintiff. Because there is no evidence that any of the plaintiff's sales representatives engaged independently in door-to-door sales of any type of product, or that they engaged in a similar type of activity, we need not decide in the present case whether part C of the ABC test required the plaintiff to demonstrate that the sales representatives engaged independently in door-to-door sales of vacuums , and not some other product, as the trial court concluded. The plaintiff contends that the fact that the putative employees in F.A.S. International, Inc. , were providing teaching services for the putative employer while they were engaging in freelance work as artists, writers and photographers for third parties, indicates that putative employees do not have to be performing the same type of work for third parties that they are performing for the putative employer to satisfy part C. Rather, the plaintiff contends, the fact that putative employees have an independent calling that they can pursue after terminating their relationship with the putative employer is sufficient to satisfy the requirements of part C. The trial court in F.A.S. International, Inc. , expressly found, however, that the putative employees in that case were not acting as teachers when they evaluated the work of the plaintiff's correspondence students; F.A.S. International, Inc. v. Reilly , supra, 179 Conn. at 514, 427 A.2d 392 ; but were "practicing elements of their chosen professions as artists, writers and photographers." Id., at 515, 427 A.2d 392. In addition, the amicus curiae, Direct Selling Association, cites to Sarah Coventry, Inc. v. Caldwell , 243 Ga. 429, 434, 254 S.E.2d 375 (1979) (evidence that putative employee was free to sell products of companies other than those of putative employer and that he had intermittent and casual relationship with putative employer were sufficient to satisfy part C of Georgia's analogue to ABC test). In contrast, our holding in Standard Oil of Connecticut, Inc. v. Administrator, Unemployment Compensation Act , supra, 320 Conn. at 655-56, 134 A.3d 581, that "undesirable, practical consequences" would follow from a broad interpretation of the phrase " 'places of business' " to include the homes of the putative employer's residential customers for purposes of part B of the ABC test did not effectively eliminate that provision from § 31-222 (a) (1) (B) (ii). Thus, that case does not support the proposition that a court may entirely ignore the language of a statutory provision if, in the court's view, the provision has undesirable policy consequences. As the administrator notes, our reasoning and interpretation of part C of the ABC test finds support in the decisions of several of our sister states. See, e.g., Hart v. Johnson , 68 Ill.App.3d 968, 976, 25 Ill.Dec. 352, 386 N.E.2d 623 (1979) (putative employer failed to establish that door-to-door vacuum salespersons satisfied third requirement of Illinois' analogue to ABC test because "the [Illinois Unemployment Insurance Act] contemplates that one who is engaged in an independent enterprise is an individual who has a proprietary interest in such business to the extent that he can operate [the] same without hindrance from any individual," and, "[a]lthough [the putative employer] urge[d] that the individuals were free to carry other lines [of vacuums] . there [was] no evidence that any of the individuals did so." [internal quotation marks omitted] ); Boston Bicycle Couriers, Inc. v. Deputy Director of the Division of Employment & Training , 56 Mass. App. 473, 481, 778 N.E.2d 964 (2002) (finding that worker was employee when putative employer failed to prove that worker "performed other courier delivery services on his own behalf that were completely apart from those performed for [the putative employer], and that this other separate courier delivery work exhibited economic independence such that [the worker's] business would continue as an ongoing enterprise, notwithstanding the end of work for [the putative employer]"); Herron Enterprises, Inc. v. Labor & Industrial Relations Commission , 765 S.W.2d 614, 617 (Mo. App. 1988) (door-to-door vacuum salespersons did not satisfy last part of Missouri's analogue to ABC test because "[their] opportunity to sell [the vacuums] was totally dependent on their relationship with [the putative employer]"); Carpet Remnant Warehouse, Inc. v. New Jersey Dept. of Labor , 125 N.J. 567, 592-93, 593 A.2d 1177 (1991) (evidence that "carpet installers generally provide[d] services for several retailers and [were] not financially dependent on one retailer . [was] not sufficient to satisfy the C criterion" of New Jersey's analogue to ABC test, and putative employer was required to present evidence of "installers' ability to maintain an independent business or trade, including the duration and strength of the installers' businesses, the number of customers and their respective volume of business, the number of employees, and the extent of the installer's tools, equipment, vehicles, and similar resources"). We acknowledge, as the amicus curiae, Direct Selling Association, observes, that a number of states have enacted statutes exempting direct sellers from the requirements of their unemployment compensation laws. See Ala. Code § 25-4-10 (b) (23) (2007) ; Alaska Stat. § 23.20.526 (a) (21) (2012) ; Ariz. Rev. Stat. Ann. § 23-617 (22) (Supp. 2016) (exempts direct sales in homes when compensation includes commissions); Cal. Unemp. Ins. Code § 650 (Deering 2009); Colo. Rev. Stat. § 8-70-136 (2017) ; Del. Code Ann. tit. 19, § 3302 (11) (N) (2005); Fla. Stat. Ann. § 443.1216 (13) (u) (West Supp. 2017) ; Ga. Code Ann. § 34-8-35 (n) (18) (2017); Haw. Rev. Stat. § 383-7 (21) (2015); 820 Ill. Comp. Stat. Ann. 405/217 (b) (West 2011); Iowa Code Ann. § 96.19 (18) (g) (9) (b) (West Supp. 2017); Kan. Stat. Ann. § 44-703 (i) (4) (V) (Supp. 2016); La. Stat. Ann. § 23:1472 (12) (H) (XVIII) (Supp. 2017); Me. Rev. Stat. Ann. tit. 26, § 1043 (11) (F) (28) (West Supp. 2016) ; Md. Code Ann., Lab. & Empl. § 8-206 (b) (2016); Mich. Comp. Laws Serv. § 421.43 (r) and (s) (LexisNexis Cum. Supp. 2017); Minn. Stat. § 268.035 20(29) (2016); Miss. Code Ann. § 71-5-11 (I) (15) (p) (Cum. Supp. 2017); Mo. Ann. Stat. § 288.034 12(17) (West 2014); Mont. Code Ann. § 39-51-204 (1) (h) (2015); Neb. Rev. Stat. § 48-604 (6) (t) (Cum. Supp. 2016); Nev. Rev. Stat. § 612.144 (2015); N.H. Rev. Stat. Ann. § 282-A:9 (IV) (s) (Cum. Supp. 2016); N.J. Stat. Ann. § 43:21-19 (i) (7) (O ) (West 2015) (exempts "home-to-home salespersons" or "in-the-home demonstrators" who are paid by commissions or commissions and bonuses); Okla. Stat. Ann. tit. 40, § 1-210 (15) (k) (West 2014) (applicable only to delivery and distribution of newspapers and shopping news); S.C. Code Ann. § 41-27-260 (18) (Supp. 2017); Tenn. Code Ann. § 50-7-207 (c) (12) (2014); Tex. Lab. Code Ann. § 201.070 (2) (West 2015); Vt. Stat. Ann. tit. 21, § 1301 (6) (C) (xxi) (2016); Va. Code Ann. § 60.2-219 (20) (Supp. 2017). In addition, three other states exempt certain individuals who are compensated primarily on the basis of commissions from their unemployment compensation laws. See Ohio Rev. Code Ann. § 4141.01 (B) (3) (g) (West Supp. 2017); Utah Code Ann. § 35A-4-205 (1) (p) (LexisNexis 2011); Wn. Rev. Code Ann. § 50.04.235 (West 2012). The amicus curiae contends that, in states without such statutes, direct sellers have been recognized as independent contractors under the common law "for decades." The only case addressing that question in Connecticut, however, is Electrolux Corp. v. Danaher , supra, 128 Conn. at 342, 23 A.2d 135, which, as we have explained, was decided before the legislature amended the act to include the ABC test. Other jurisdictions are split on the issue of whether a putative employee must actually be engaged in an independently established occupation to satisfy part C of the ABC test. It may well be that exempting direct sellers from the act, regardless of whether they are actually engaged in an independently established occupation, is the better public policy. As we have indicated, however, that policy judgment is one to be made by the legislature, not us.

12489919

Andrea MICEK-HOLT, Executrix (Estate of Edward W. Micek) v. Mary PAPAGEORGE et al.

Micek-Holt v. Papageorge

2017-07-18

SC 19896

1200

1203

163 A.3d 1200

163

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

2021-09-08T21:16:17.237805+00:00

Fastcase

Andrea MICEK-HOLT, Executrix (Estate of Edward W. Micek) v. Mary PAPAGEORGE et al.

Andrea MICEK-HOLT, Executrix (Estate of Edward W. Micek) v. Mary PAPAGEORGE et al. SC 19896 Supreme Court of Connecticut. July 18, 2017

1809

11116

PER CURIAM. We are asked to decide whether this court has jurisdiction over a writ of error challenging an order of the trial court, which was issued while the direct appeal of the plaintiffs-in-error, Mary Papageorge and George Papageorge (collectively, the Papageorges), was pending before the Appellate Court and whether the filing of such a writ gave rise to an automatic stay of the order that the writ challenged. We conclude that we lack jurisdiction, and, as a result, we do not reach the issue of whether an automatic stay exists. Accordingly, we grant the motion to dismiss the writ of error filed by the defendant in error, Andrea Micek-Holt, executrix of the estate of Edward W. Micek, and deny her motion for determination of the status of the automatic appellate stay. The record reveals the following relevant facts. In 2010, Edward W. Micek and Kalami Corporation (Kalami), an entity represented by Mary Papageorge as its officer, executed a one year lease agreement whereby Micek would lease certain real property to Kalami and the Papageorges and their two daughters would occupy the property. Micek and Mary Papageorge concurrently executed a purchase and sale agreement (sale agreement) for the property, whereby Mary Papageorge would pay Micek a deposit during the period of the lease and then purchase the property for $250,000 at the end of the lease. Mary Papageorge, on behalf of Kalami, made all rent payments due under the lease and paid the agreed upon sales deposit prior to the expiration of the lease, but Micek failed to take steps to complete the purchase under the sale agreement. Micek thereafter brought a summary process action against the Papageorges and Kalami seeking to evict them for nonpayment of rent after the end of the lease period. The trial court found in favor of Kalami and the Papageorges, concluding that no further obligations existed under the lease agreement and that Mary Papageorge had an equitable right to the property under the sale agreement, including continued possession of the property until the real estate closing took place pursuant to the sale agreement. Subsequently, Micek and, after his death, Micek-Holt, as executrix of Micek's estate, made two attempts to close under the sale agreement with Mary Papageorge. Both times Mary Papageorge refused to perform under the terms of the sale agreement, claiming she was due additional consideration beyond what was memorialized in that agreement. Micek-Holt, in her capacity as executrix, then commenced an action against the Papageorges, their daughter Angelina Papageorge, and Kalami (collectively, the defendants), claiming, inter alia, breach of the sale agreement and unjust enrichment and seeking to quiet title to the property. She sought, in the alternative, monetary damages, specific performance, foreclosure of Mary Papageorge's equitable interest in the property, a declaratory judgment that the defendants had no interest in the property, and the defendants' eviction from the property. Mary Papageorge filed a separate action against Micek-Holt and others seeking legal title to the property and $5.5 million in damages as a result of Micek's alleged breach of the sale agreement. The trial court, after the two actions had been consolidated for trial, rejected all of Mary Papageorge's claims. The trial court then found in favor of Micek-Holt on her breach of contract and unjust enrichment claims. As to relief, it ordered either that Mary Papageorge pay monetary damages and perform under the terms of the sale agreement by October 26, 2016, or, in the event that she failed to perform, that her equitable right to the property be "extinguished" and a judgment of quiet title be issued in favor of Micek-Holt, as executrix, and Micek-Holt could request an execution of ejectment against the defendants. The Papageorges timely appealed from the judgment in favor of Micek-Holt to the Appellate Court. The automatic stay that arose upon the filing of the appeal; see Practice Book § 61-11(a) ; was terminated in November, 2016, upon Micek-Holt's motion, after the deadline for performance of the sale agreement had passed. That appeal is currently pending before the Appellate Court. In March, 2017, the trial court granted Micek-Holt's request for an execution of ejectment. The Papageorges filed an emergency motion for review of that order with the Appellate Court. The Appellate Court granted review, ordered a stay of the execution of ejectment, and ordered briefing from the parties on whether Mary Papageorge's equitable right to the property implicated a right of possession. Thereafter, the Appellate Court issued an order terminating the stay of the execution of ejectment, which effectively denied the relief requested by the Papageorges. Subsequently, the Papageorges filed the writ of error presently before this court, claiming that the issuance of the execution of ejectment by the trial court was improper because it violated the initial automatic appellate stay in that the deadline for performance of the sale agreement occurred while the stay was in effect. Micek-Holt filed a motion to dismiss, asserting that this court lacks jurisdiction because (1) the Papageorges, as parties to the underlying trial court case, may not bring a writ of error pursuant to Practice Book § 72-1(a), and (2) the writ of error is improper pursuant to Practice Book § 72-1(b) because the Papageorges could raise claims concerning the execution of ejectment in the appeal pending before the Appellate Court. Micek-Holt concurrently filed a motion for clarification as to whether the filing of the writ of error resulted in an automatic stay of the execution of ejectment. Practice Book § 72-1 provides in relevant part: "(a) Writs of error for errors in matters of law may be brought from a final judgment of the superior court to the supreme court in the following cases . a decision binding on an aggrieved nonparty . and . as otherwise necessary or appropriate in aid of its jurisdiction and agreeable to the usages and principles of law. "(b) No writ of error may be brought in any civil . proceeding for the correction of any error where . the error might have been reviewed by process of appeal ." Although it is undisputed that the Papageorges are parties to the underlying case, they contend that a writ of error is the proper mechanism to challenge the execution of ejectment because the execution occurred after the final judgment from which they have appealed and, therefore, they cannot challenge the propriety of the execution in the pending appeal. They further note that without action by this court through the writ of error, they will be divested of possession of the property prior to the resolution of their appeal. The Papageorges have cited no authority, nor has our research revealed any, supporting the proposition that a party to an underlying case may use a writ of error to challenge an execution of ejectment following a foreclosure or other final judgment settling the equitable property rights of the parties. To the contrary, authority holds that a writ of error is the proper mechanism for a tenant to challenge an ejectment following a foreclosure when the tenant has not been made a party to the foreclosure action. See Tappin v. Homecomings Financial Network, Inc. , 265 Conn. 741, 745-46, 830 A.2d 711 (2003). When a tenant is a party to a foreclosure and seeks to challenge the execution of ejectment that resulted from the subject foreclosure, the tenant must seek review through a direct appeal. See First Federal Bank, FSB v. Whitney Development Corp. , 237 Conn. 679, 682-84, 677 A.2d 1363 (1996) (elderly, disabled tenant challenging right of mortgagee to evict her through execution of eviction following vesting of title in mortgagee through strict foreclosure); see also Wells Fargo Bank of Minnesota, N.A. v. Morgan , 98 Conn.App. 72, 73-74, 909 A.2d 526 (2006) (issuance of execution of ejectment raised by party through appeal of denial of motion to open and set aside orders of trial court approving foreclosure sale and deed). Although we are not unsympathetic to the fact that the Papageorges will be required to vacate the property to which they claim a right of possession prior to the resolution of their appeal, we are unpersuaded that this circumstance alone negates their status as parties to the underlying case for purposes of standing to bring a writ of error. To hold otherwise would allow any party to a case pending on appeal in which the automatic appellate stay has been lifted, resulting in a negative consequence to the party, to bring a writ of error. The Papageorges also have not demonstrated that they lacked any mechanism to challenge the trial court's order authorizing the issuance of an execution of ejectment-either due to form or substance-in their direct appeal or by way of an amended appeal. Therefore, we conclude that this court lacks jurisdiction over the Papageorges' writ of error. Because we dismiss the Papageorges' writ of error, we do not reach the issue of whether the filing of the writ resulted in an automatic stay of the execution of ejectment. The motion to dismiss the writ of error is granted, and the motion for determination of appellate stay is denied. The trial court memorandum of decision stated that Micek-Holt could request an "execution of eviction," but did not specify the statutory authority under which such execution would be issued. Micek-Holt subsequently filed, and the trial court ordered, an execution of summary process using a standard Judicial Branch form. The proper statutory mechanism for eviction of a party following a trial that determines the equitable interests in a property is an execution of ejection. See General Statutes § 49-22 ("[a] In any action . for any equitable relief in relation to land, the plaintiff may, in his complaint, demand possession of the land, and the court may, if it renders judgment in his favor and finds that he is entitled to the possession of the land, issue execution of ejectment ."). Accordingly, we refer to the actions as seeking executions of ejectment, and look to cases challenging executions of ejectment for guidance in determining whether a party may bring such a challenge by way of a writ of error. In light of the grounds on which we rest our decision, we need not consider whether the writ of error is an improper attempt to circumvent the general rule that a party aggrieved by an Appellate Court decision may only obtain review (1) when that decision constitutes "a final determination of [an] appeal"; Ingersoll v. Planning & Zoning Commission, 194 Conn. 277, 279, 479 A.2d 1207 (1984) ; (2) by way of a petition for certification. See General Statutes § 51-197f ; Practice Book § 84-1 ; see also Practice Book § 66-6 (providing for motion for review of "any action by the appellate clerk under [Practice Book §] 66-1" and various trial court orders).

12489932

ANTWON W. v. COMMISSIONER OF CORRECTION

Antwon W. v. Comm'r of Corr.

2017-05-09

AC 37661

1223

1245

163 A.3d 1223

163

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-09-08T21:16:17.237805+00:00

Fastcase

ANTWON W. v. COMMISSIONER OF CORRECTION

ANTWON W. v. COMMISSIONER OF CORRECTION AC 37661 Appellate Court of Connecticut. Argued January 10, 2017 Officially released May 9, 2017 Peter Tsimbidaros, assigned counsel, for the appellant (petitioner). Michele C. Lukban, senior 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 (respondent). Lavine, Beach and Flynn, Js. In accordance with our policy of protecting the privacy interests of the victims of sexual abuse and the crime of risk of injury to a child, we decline to use the petitioner's full name or to identify the victim or others through whom the victim's identity may be ascertained. See General Statutes § 54-86e.

10669

66890

FLYNN, J. The petitioner, Antwon W., appeals from the judgment of the habeas court denying his second amended petition for a writ of habeas corpus alleging ineffective assistance of counsel. He claims that, contrary to the decision of the habeas court, his trial counsel rendered ineffective assistance by failing to (1) adequately protect his constitutional right to an impartial jury; (2) object to the jury instructions provided by the trial court, Cremins, J ., regarding the proper use of constancy of accusation evidence; (3) adequately cross-examine or otherwise impeach the victim; (4) advise him to accept the state's plea offer rather than proceed to trial; and (5) investigate and call witnesses who would have provided exculpatory testimony. We affirm the judgment of the habeas court. The petitioner sexually assaulted his twelve year old cousin four times from 2002 through 2003 at his uncle's home. State v. Antwon W ., 118 Conn.App. 180, 181-84, 982 A.2d 1112 (2009), cert. denied, 295 Conn. 922, 991 A.2d 568 (2010). In 2006, the petitioner, who was eighteen years old at the time of the assaults, was convicted of one count of sexual assault in the third degree, six counts of sexual assault in the first degree, and one count of risk of injury to a child. Id., at 184-85, 982 A.2d 1112. Attorney Gregory St. John represented the petitioner throughout the criminal trial. Judge Cremins sentenced the petitioner to an effective term of fifteen years imprisonment followed by fifteen years of special parole. Id., at 185, 982 A.2d 1112. This court upheld the petitioner's conviction on direct appeal. Id., at 182, 982 A.2d 1112. Thereafter, the petitioner filed a second amended petition for a writ of habeas corpus setting forth numerous claims of ineffective assistance of counsel. As relevant to this appeal, the petitioner alleged that Attorney St. John performed deficiently because he failed to (1) ensure that the petitioner was tried before an impartial jury by neglecting to ask prospective jurors during voir dire whether they had been the victim of sexual assault, and by failing to investigate potential juror bias after one of the jurors expressed concerns during deliberations; (2) object to Judge Cremins' instructions to the jury regarding the proper use of constancy of accusation evidence; (3) adequately cross-examine or otherwise impeach the state's witnesses; (4) provide the petitioner with adequate legal advice regarding the state's plea offers, or advise him that accepting a plea offer, rather than proceeding to trial, was in his best interests; and (5) investigate and call witnesses who could have provided exculpatory evidence. The petitioner further alleged that, if not for these acts and omissions by Attorney St. John, there was a reasonable probability he would have prevailed in his criminal trial. A habeas trial was held on September 23 and 24, 2014. Prior to trial, the respondent, the Commissioner of Correction, filed a motion in limine to preclude the petitioner from introducing testimony from the jurors in his criminal trial regarding their deliberative process. The habeas court granted that motion and subsequently denied the petitioner's motion for reconsideration. At the habeas trial, the petitioner testified on his own behalf and presented testimony from Attorney Leon Kaatz, an expert in criminal defense practice. Attorney St. John testified for the respondent. The habeas court denied the petitioner's second amended petition in a memorandum of decision dated December 18, 2014. Following the granting of certification to appeal, this appeal followed. Additional facts and procedural history will be set forth where necessary. We begin by setting forth our standard of review and the legal principles that govern claims of ineffective assistance of counsel. "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." (Citations omitted; internal quotation marks omitted.) Gaines v. Commissioner of Correction , 306 Conn. 664, 677, 51 A.3d 948 (2012). As the United States Supreme Court articulated 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, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the counsel guaranteed . by the [s]ixth [a]mendment.... Put another way, 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. 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.... 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." (Citations omitted; internal quotation marks omitted.) Thompson v. Commissioner of Correction , 131 Conn.App. 671, 690-91, 27 A.3d 86, cert. denied, 303 Conn. 902, 31 A.3d 1177 (2011). Furthermore, in analyzing the performance prong of Strickland , our focus is on "whether counsel's assistance was reasonable considering all the circumstances.... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.... "Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.... At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." (Citation omitted; internal quotation marks omitted.) Gaines v. Commissioner of Correction , supra, 306 Conn. at 679-80, 51 A.3d 948. As a preliminary matter, the petitioner argues that we should apply the cumulative error doctrine in determining whether he was prejudiced by Attorney St. John's purported deficiencies. Our appellate courts, however, have consistently declined to adopt this method of review. "When faced with the assertion that the claims of error, none of which individually constituted error, should be aggregated to form a separate basis for a claim of a constitutional violation of a right to a fair trial, our Supreme Court has repeatedly decline[d] to create a new constitutional claim in which the totality of alleged constitutional error is greater than the sum of its parts." (Internal quotation marks omitted.) Anderson v. Commissioner of Correction , 148 Conn.App. 641, 645, 85 A.3d 1240, cert. denied, 311 Conn. 945, 90 A.3d 976, cert. denied sub nom. Anderson v. Dzurenda , - U.S. -, 135 S.Ct. 201, 190 L.Ed.2d 155 (2014) ; see State v. Tillman , 220 Conn. 487, 505, 600 A.2d 738 (1991), cert. denied, 505 U.S. 1207, 112 S.Ct. 3000, 120 L.Ed.2d 876 (1992). Because it is not within the province of this court to reevaluate decisions of our Supreme Court; Anderson v. Commissioner of Correction , supra, at 645, 85 A.3d 1240 ; we lack authority under the current state of our case law to analyze the petitioner's ineffective assistance claims under the cumulative error rule. Moreover, application of the cumulative error rule would not entitle the petitioner to relief because not one of Attorney St. John's purported trial errors constitutes deficient performance under Strickland . See Henderson v. Commissioner of Correction , 104 Conn.App. 557, 567, 935 A.2d 162 (2007), cert. denied, 285 Conn. 911, 943 A.2d 470 (2008). That threshold issue resolved, and mindful of the above legal principles, we now turn to the petitioner's claims on appeal. I The petitioner first claims that the habeas court erred in concluding that Attorney St. John did not render ineffective assistance of counsel by failing to adequately protect his constitutional right to an impartial jury. In support of this claim, the petitioner argues (1) that Attorney St. John was ineffective because, during voir dire, he neglected to ask any of the potential jurors whether they or someone close to them had been the victim of sexual assault; (2) that Attorney St. John was ineffective because he failed to request a more searching inquiry into potential juror bias or misconduct after a juror raised concerns about another juror's "personal past" during deliberations; and (3) that the habeas court improperly granted the respondent's motion in limine precluding him from calling the jurors as witnesses in his habeas trial to establish that juror bias existed and prejudiced him in his criminal trial. We address each of these arguments in turn. A The petitioner first contends that Attorney St. John rendered ineffective assistance during voir dire because he failed to ask potential jurors whether they or someone close to them had been a victim of sexual assault. We disagree. The record discloses the following facts. The trial court, Prescott, J ., conducted jury selection from April 17 through April 19, 2006. At the start of each day, prior to the commencement of individual voir dire questioning, Judge Prescott informed each of the venire panels that the purpose of voir dire was to ascertain each prospective juror's ability to be impartial, instructed the panel to answer questions accurately and to the best of their ability, and posed an array of preliminary questions to the panels, including: "Have you had any life experiences that in any way relate to the charges in this case that might prevent you from being a fair and impartial juror? Do you have any bias or prejudices that could in any way come into play in sitting on this case?" Several members of the venire responded affirmatively to these preliminary questions and were ultimately excused for cause following individual voir dire because either they or their close friend or family member had been the victim of sexual assault. This is an indication in the record that Judge Prescott's preliminary questions were adequate to deal with any bias or prejudice that the prospective jurors may have had because either they or persons close to them had been victimized by sexual assault crimes. None of the six venire members ultimately selected as jurors responded affirmatively to any of Judge Prescott's preliminary questions. The six prospective jurors then appeared before Judge Prescott, the prosecutor, and Attorney St. John for individual voir dire. Judge Prescott began each examination by asking the prospective juror whether he or she was aware of anything that they thought might affect their ability to be fair and impartial. Each prospective juror responded in the negative. One prospective juror, V.B., stated in response to a subsequent question from Judge Prescott that she had "trouble" with the nature of the charges, but stated she could nonetheless be fair and impartial. Attorney St. John asked V.B. whether there was "any kind of a barrier to [her] being able to be a fair and impartial juror," to which V.B. responded that she believed she would be fair. Attorney St. John further asked V.B. if there was anything else the court and counsel should know that might impact her ability to be fair and impartial, and V.B. answered that she had lost a child. Another prospective juror, J.B., informed Judge Prescott that she was "a little partial to the sexual offenses" because, given her training and work as a nurse, she tended to be more of a victim advocate. She indicated, however, that she would try to be fair. The prosecutor elicited from J.B. that, other than a patient she encountered at work, she had never known anyone who had been the victim of sexual assault. The four other prospective jurors were all asked, by Attorney St. John, the prosecutor or both of them, whether the nature of the charges or anything else impacted their ability to be impartial, and none of them raised concerns about past experiences with sexual assault. In his habeas petition, the petitioner alleged that Attorney St. John provided ineffective assistance by failing to ask the jurors whether they had been the victim of sexual assault, which resulted in the empanelment of a juror who was biased against persons accused of sexual assault crimes. The habeas court found that Attorney St. John's failure to pose this specific question did not amount to deficient performance because he and the prosecutor had "cover[ed] the same territory" by asking the jurors whether anything about the charges or their life experiences impacted their impartiality. The habeas court concluded that, under these circumstances, the failure to specifically ask whether the jurors had been a victim of sexual assault, "using those exact words, was inconsequential." We discern no error in that reasoning on appeal. "Jury 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." (Internal quotation marks omitted.) State v. Miller , 163 Conn.App. 772, 776, 137 A.3d 105, cert. denied, 321 Conn. 905, 136 A.3d 1273 (2016). The federal and state constitutions require juries to be "composed of individuals able to decide the case solely on the evidence and apply the law in accordance with the court's instructions ." State v. Griffin , 251 Conn. 671, 691-92, 741 A.2d 913 (1999). Voir dire is critical to protecting the right to an impartial jury because it reveals "information upon which the trial court may decide which prospective jurors . should be excused for cause . and . information to counsel which may aid them in the exercise of their right to peremptory challenge." (Internal quotation marks omitted.) State v. Faust , 237 Conn. 454, 462, 678 A.2d 910 (1996). It is well established, however, that in determining whether trial counsel performed deficiently under Strickland , "[a]n attorney's line of questioning on examination of a witness clearly is tactical in nature. [As such, this] court will not, in hindsight, second-guess counsel's trial strategy." (Internal quotation marks omitted.) Antonio A . v. Commissioner of Correction , 148 Conn.App. 825, 832, 87 A.3d 600, cert. denied, 312 Conn. 901, 91 A.3d 907 (2014). Likewise, courts cannot prescribe a specific manner by which attorneys conduct voir dire, a process that "is inevitably a call upon [the trial lawyer's] experience and intuition." Romero v. Lynaugh , 884 F.2d 871, 878 (5th Cir. 1989), cert. denied sub nom. Romero v. Collins , 494 U.S. 1012, 110 S.Ct. 1311, 108 L.Ed.2d 487 (1990). For example, this court rejected a claim that the trial court erred in declining to suggest to trial counsel ways to rephrase voir dire questions because reviewing courts "cannot impose on a trial court the burden of suggesting to parties how they should conduct their cases." State v. Charlton , 30 Conn.App. 359, 367, 620 A.2d 1297, cert. denied, 225 Conn. 922, 625 A.2d 824 (1993). We therefore indulge a strong presumption that trial counsel's lines of inquiry during voir dire were reasonable. Habeas petitioners must bear the heavy burden of demonstrating that "there [was] no . tactical justification for the course taken." (Internal quotation marks omitted.) Taft v. Commissioner of Correction , 159 Conn.App. 537, 557, 124 A.3d 1, cert. denied, 320 Conn. 910, 128 A.3d 954 (2015). The petitioner has not sustained that burden in the present case. Although Attorney St. John did not ask the prospective jurors the specific question of whether they or someone close to them had been the victim of sexual assault, the voir dire process as a whole adequately covered those subjects. Judge Prescott, in his preliminary questions, asked the members of each venire panel whether they had any "life experiences" or "bias or prejudices" that might color their ability to return a fair and impartial verdict. Attorney St. John and the prosecutor then asked each juror individually whether they knew of anything that might impact their impartiality. None of the jurors identified anything of concern, and each expressed confidence she or he could be impartial. Attorney St. John's failure to ask a specific question that would have been largely cumulative of other questions does not render his performance deficient. As we have stated, attorneys need not question jurors in any particular manner to be effective. Accordingly, the petitioner's claim fails to satisfy the performance prong of Strickland ; we need not reach the issue of prejudice. The petitioner further argues, without analysis, that Attorney St. John should have "asked that [J.B.] be excused for cause or should have exercised a peremptory challenge." To the extent the petitioner is attempting to raise a distinct claim of ineffective assistance, we disagree. This court has consistently recognized that decisions about whether to peremptorily strike particular jurors are matters of trial strategy. See Smith v. Commissioner of Correction , 116 Conn.App. 383, 389, 975 A.2d 751, cert. denied, 293 Conn. 925, 980 A.2d 912 (2009) ; Beverly v. Commissioner of Correction , 101 Conn.App. 248, 252, 922 A.2d 178, cert. denied, 283 Conn. 907, 927 A.2d 916 (2007) ; Ziel v. Commissioner of Correction , 89 Conn.App. 371, 378, 873 A.2d 239, cert. denied, 275 Conn. 920, 883 A.2d 1254 (2005). This deference soundly recognizes that a trial attorney is in the best position to determine whether a particular venireperson can fairly hear his client's cause. Here, J.B. repeatedly indicated that, despite her training and work as a nurse, she would try to be fair and had never known anyone who had been the victim of sexual assault. Given these assurances, any claim by the petitioner that Attorney St. John's failure to strike J.B. was outside the realm of reasonable trial strategy lacks merit. B The petitioner next argues that Attorney St. John performed deficiently by failing to request a more thorough investigation into juror bias or misconduct after one of the jurors raised concerns during deliberations about another juror's "personal past." We disagree. The jury began deliberating on May 15, 2006. The following morning, on May 16, 2006, Judge Cremins brought one of the jurors, L.B., into the courtroom because she had "expressed a concern." The following exchange ensued: "The Court: If the concern is something not related to deliberations, I want you to tell me what that is. If it's the other, if the concern relates to the deliberations, that's not anything that we can discuss. Okay. Let's first of all tell me which it relates to? "[L.B.]: Well, it came out during deliberations; however, I think it really doesn't concern deliberations. I think it could affect the deliberations, but it's not really a result of the deliberations . "The Court: Let me ask you a couple of questions. Is it something related to someone's health? "[L.B.]: No. . "The Court: It's not related to personality? "[L.B.]: No. "The Court: Is it related at all to their punctuality or their participation? "[L.B.]: No. "The Court: So, it sounds like it's related then to your deliberation discussion. "[L.B.]: It's her. It's, I know, I think, if I say these two words it might clear it up for both of us. "The Court: I, again, if the concern you have relates to anything related to the deliberations, whether it's the person's attitude, their participation, their position, their advocacy, that's not something we can discuss. So, if you think it falls into any one of those categories- "[L.B.]: You may make it hard.... "The Court: I think it sounds like it might be related to the deliberations in terms of those things that I mentioned. "[L.B.]: I think it can affect deliberations. I don't know. That's it. "The Court: Well, okay. "[L.B.]: It's not a cause because of deliberations. It's a personal past thing, someone's personal past is what it is. It is my concern how it might relate. "The Court: Okay. All right.... I will ask you to step outside for just a moment. Thank you." (Emphasis added.) Outside the presence of L.B., Judge Cremins stated that he did not "see any reason why we should not continue." The prosecutor and Attorney St. John agreed with Judge Cremins. L.B. returned to the courtroom, and the court informed her that it would not inquire any further into her concern and instructed her to continue in the deliberations. The jury returned a guilty verdict the following day. In his habeas petition, the petitioner alleged that L.B. had been referring to a female juror who previously had been the victim of sexual assault, and that Attorney St. John rendered ineffective assistance by failing to request a more searching inquiry into the potential bias. The habeas court rejected this claim, concluding that it was pure speculation to suppose that L.B. had been referring to a juror who had been the victim of sexual assault, especially in light of each of the jurors' representations during voir dire that none of her or his past experiences impacted her or his ability to be fair and impartial. Additionally, citing Warger v. Shauers , - U.S. -, 135 S.Ct. 521, 190 L.Ed.2d 422 (2014), the habeas court disagreed that Attorney St. John performed deficiently by failing to request a more thorough inquiry into L.B.'s concerns. The habeas court emphasized that Warger , while not binding in the present case, reflects the principle that "trial courts and litigants must exercise great caution when asked to intrude upon the sanctity of deliberations." Accordingly, the habeas court concluded that Attorney St. John had to "tread lightly" in determining how extensively to inquire into L.B.'s concerns, and that, because the stated bases for L.B.'s concerns were vague, Attorney St. John's failure to request a more extensive investigation did not amount to deficient performance. We agree with the habeas court's ultimate determination that the petitioner failed to satisfy the performance prong of Strickland . As an initial matter, we note that the petitioner made little effort at the habeas trial to overcome the presumption that Attorney St. John's decision not to pursue further questioning of L.B. was based upon reasonable professional judgment. See Gaines v. Commissioner of Correction , supra, 306 Conn. at 679-80, 51 A.3d 948. The petitioner did not question Attorney St. John about it, nor did he elicit an opinion from Attorney Kaatz about whether the response was constitutionally adequate. In any event, our review of the record convinces us that, under the circumstances, Attorney St. John's decision that further inquiry was unnecessary was not objectively unreasonable. L.B. explained during her brief colloquy with Judge Cremins that she was concerned about an unnamed female juror's "personal past" and how it "might relate" to deliberations. Attorney St. John was not required to infer from these statements that the jury's deliberations were infected by actual bias or misconduct. Rather, L.B.'s statements could easily have been construed as suggesting merely that the unnamed juror's past experiences had informed her understanding of the case, which is entirely proper. "[J]urors . are not expected to lay aside matters of common knowledge or their own observations and experiences, but rather, to apply them to the facts as presented to arrive at an intelligent and correct conclusion." (Internal quotation marks omitted.) State v. Warholic , 278 Conn. 354, 365, 897 A.2d 569 (2006). Indeed, Attorney St. John stated following the colloquy that he believed a further investigation was unnecessary because "when [jurors] come into this building . they bring their life experiences with them, and they bring those life experiences so they can utilize that in terms of judging credibility of witnesses." Attorney St. John cannot have performed deficiently for failing to investigate statements that he reasonably interpreted to be innocuous. We certainly do not agree with the petitioner's argument that L.B.'s reference to the female juror's "personal past" should have alerted Attorney St. John to the fact that the juror had been the victim of sexual assault and was therefore biased. L.B.'s statements did not suggest that any of the jurors had been the victim of a crime, and even if they did, a juror's status as a victim or concealment of information during voir dire does not mean that the juror cannot be impartial. "It is actual bias, rather than bias that is implied on the basis of a juror's status [as a victim] or on the basis of a juror's dishonesty during voir dire, that is dispositive in raising a claim of bias from the realm of speculation to the realm of fact." State v. Myers , 244 Conn. 683, 689-90, 711 A.2d 704 (1998). Each juror repeatedly stated during voir dire that she or he could return a fair and impartial verdict based on the evidence, assurances upon which Attorney St. John was entitled to rely. Cf. State v. Ziel , 197 Conn. 60, 66, 495 A.2d 1050 (1985) ("it was not unreasonable for the trial court to assume that the voir dire examination would disclose any prejudice upon the part of a prospective juror" [internal quotation marks omitted] ). The petitioner has therefore failed to establish deficient performance. As our Supreme Court has recognized, "to perform effectively, counsel need not recognize and raise every conceivable . claim." (Internal quotation marks omitted.) Ledbetter v. Commissioner of Correction , 275 Conn. 451, 460, 880 A.2d 160 (2005), cert. denied sub nom. Ledbetter v. Lantz , 546 U.S. 1187, 126 S.Ct. 1368, 164 L.Ed.2d 77 (2006). Put simply, while Attorney St. John could have requested additional questioning of L.B., we do not believe that, under these circumstances, he was constitutionally required to do so to be an effective trial counsel. The petitioner's reliance on State v. Brown , 235 Conn. 502, 668 A.2d 1288 (1995), is misplaced. In Brown , our Supreme Court invoked its supervisory authority to hold that "a trial court must conduct a preliminary inquiry, on the record, whenever it is presented with any allegations of jury misconduct in a criminal case, regardless of whether an inquiry is requested by counsel." (Footnote omitted.) Id., at 526, 668 A.2d 1288. The trial court has discretion to order additional proceedings, or a full evidentiary hearing, depending on what is disclosed during the preliminary inquiry. Id. The petitioner was not entitled to a Brown inquiry because L.B. stated that her concern related to the unnamed juror's "personal past"-that is, something that arose before that juror was subject to voir dire. Brown does not require an inquiry into allegations of juror bias or misconduct where the purported taint accrued prior to voir dire because, in those situations, "voir dire itself provides a means to uncover [the] bias." State v. Ross , 269 Conn. 213, 248, 849 A.2d 648 (2004). This court has explained that Brown "operates in the sphere of juror misconduct claims, while the voir dire process properly allows counsel to investigate fully bias, preconceived notions and the like. The voir dire process is designed to weed out those who are unfit to serve because of prejudicial notions." State v. Malave , 47 Conn.App. 597, 606, 707 A.2d 307 (1998), aff'd, 250 Conn. 722, 737 A.2d 442 (1999), cert. denied, 528 U.S. 1170, 120 S.Ct. 1195, 145 L.Ed.2d 1099 (2000) ; see also State v. Ross , supra, at 247 n.23, 849 A.2d 648. In addition to the voir dire questions posed by Attorney St. John and the prosecutor, Judge Prescott's questions to the panel were designed to reach any partiality or bias. We therefore conclude that Attorney St. John was not deficient for failing to pursue a Brown inquiry because the petitioner was not entitled to any such inquiry. Accordingly, the habeas court properly concluded that the petitioner failed to demonstrate deficient performance under Strickland . C The petitioner next argues that the habeas court improperly precluded him from calling the jurors as witnesses in his habeas trial to establish that juror bias existed in his criminal trial. This argument relates solely to the petitioner's ability to establish the prejudice prong of Strickland . Because, however, we are affirming the decision of the habeas court with regard to this claim of ineffective assistance on the basis of the performance prong; see parts I A and B of this opinion; the issue of prejudice is not germane to our discussion. "A court evaluating an ineffective assistance claim need not address both components of the Strickland test if the [claimant] makes an insufficient showing on one." (Internal quotation marks omitted.) Ouellette v. Commissioner of Correction , 154 Conn.App. 433, 448 n.9, 107 A.3d 480 (2014). Accordingly, we need not address the merits of this argument. II The petitioner next claims that Attorney St. John rendered ineffective assistance by failing to object to the jury instructions provided by Judge Cremins regarding the proper use of constancy of accusation evidence. We are not persuaded. The following additional facts are relevant to our discussion of this claim. During the petitioner's criminal trial, the state introduced testimony from three constancy of accusation witnesses, T, B, and S, who each testified about their conversations with the victim in early 2004 in which the victim reported that she had been sexually assaulted on multiple occasions by the petitioner. See State v. Antwon W ., supra, 118 Conn.App. at 193-94, 982 A.2d 1112. Prior to the testimony of T, Judge Cremins instructed the jury as follows: "Ladies and gentlemen, before this testimony begins, I want to explain a couple of things to you. There are times when evidence is admitted for a limited purpose. You can use it for one purpose, but you can't use it for another purpose. The testimony here is going to be one of those situations. So, I want to tell you, at this point, the purpose for which you can use the testimony that [T] is about to give. The evidence by this witness is admitted solely to corroborate or not corroborate the complainant's testimony in court. It is to be considered by you only in determining the weight and credibility you will give to the complainant's testimony given here in court. This evidence of out-of-court statements by the complainant of an alleged sexual assault against her, that is, the complainant, by the [petitioner], is not to be considered by you to prove the truth of the matter asserted, that is, the proof of what is said in those out-of-court statements, but it is to be presented for you to consider in assessing the credibility for you to give to the complainant's in-court testimony. " (Emphasis added.) Judge Cremins repeated a similar limiting instruction before B and S testified, and again after S testified. After the close of evidence, Judge Cremins charged the jury, in relevant part, as follows: "Constancy of accusation. The complainant testified here in court before you. Her testimony in court you may use as evidence and proof of the facts asserted in that testimony and give it the weight you find is reasonable. The state offered evidence of out-of-court statements made by the complainant to other persons that the [petitioner] sexually assaulted her. This court's recollection of those persons to whom the alleged victim made such statements are [T], [B] and [S]. Each of these people testified as to the statements the complainant made to each of them regarding the [petitioner's] alleged sexual assaulting of her. This evidence by each of these witnesses is admitted solely to corroborate or not corroborate the complainant's testimony in court. It is to be considered by you only in determining the weight and credibility you will give to the complainant's testimony given here in court. "This evidence of out-of-court statements by the complainant of a sexual assault against her by the [petitioner] is not to be considered by you to prove the truth of the matter asserted, the truth of what is said, in those out-of-court statements, but it is presented for you to consider in assessing the credibility you will give to the complainant's in-court testimony. "In determining whether these out-of-court statements are corroborative or not corroborative of the complainant's testimony in court, you should consider all the circumstances under which these out-of-court statements were made and to whom, and whether the statements made to those persons were or were not consistent with the complainant's testimony in court. "To the extent you find what she said outside the courtroom is consistent with her testimony in court, you may find the complainant's testimony in court to be corroborated or supported. To the extent you find what the complainant has said outside the courtroom is inconsistent with her testimony in court, you may consider the degree of inconsistency which you may find, and you may consider the reasons you may find for the inconsistency in evaluating her testimony given here in court." (Emphasis added.) Attorney St. John did not object to this jury instruction or to any of the limiting instructions provided by Judge Cremins in connection with the testimony of T, B, and S. In his habeas petition, the petitioner alleged that Attorney St. John provided ineffective assistance by failing to object to the foregoing charge and limiting instructions, which he asserted encouraged the jury to consider the constancy of accusation testimony for substantive purposes, rather than for the limited purpose of corroborating only the fact and timing of the victim's complaint. The habeas court rejected this claim, finding that the petitioner failed to demonstrate prejudice. The habeas court ruled that, even if the instructions suggested that the constancy of accusation testimony could be used to corroborate the victim's testimony as to matters beyond the mere fact and timing of her complaint, any overbreadth "was very minor and insubstantial, considering all the other evidence in this case, and had no discernible effect on the jury's deliberations." The habeas court further found that the constancy of accusation evidence was properly limited to only those details necessary to associate the victim's reports to the charged assaults, and that the instructions "played no role in persuading the jurors to accept or reject the victim's accusations against the petitioner ." The petitioner claims that the habeas court erred in concluding that the jury instructions did not prejudice him. He argues that the language, repeated in each instruction, that the evidence was admitted to "corroborate or not corroborate the victim's testimony in court" encouraged the jury to consider the evidence for substantive purposes, in violation of State v. Troupe , 237 Conn. 284, 677 A.2d 917 (1996). In Troupe , our Supreme Court concluded that constancy of accusation witnesses "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." Id., at 304, 677 A.2d 917. We agree with the habeas court that, even if we were to assume that Attorney St. John's failure to object to the challenged language of the instructions amounted to deficient performance, the petitioner failed to demonstrate prejudice. To establish prejudice under the Strickland test, habeas petitioners "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.... [T]he question is whether there is a reasonable probability that, absent the [alleged] errors, the [fact finder] would have had a reasonable doubt respecting guilt.... "In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or the jury.... Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect. Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.... [T]he ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged.... The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." (Citations omitted; internal quotation marks omitted.) Gaines v. Commissioner of Correction , supra, 306 Conn. at 688-89, 51 A.3d 948. As an initial matter, we disagree that, considered in their entirety, the jury instructions were likely to have misled the jury into considering the constancy of accusation evidence for substantive purposes. See Hickey v. Commissioner of Correction , 162 Conn.App. 505, 521, 133 A.3d 489 (2016) ("[t]he whole charge must be considered from the standpoint of its effect on the [jurors] in guiding them to the proper verdict . and not critically dissected in a microscopic search for possible error" [internal quotation marks omitted] ). Despite any arguable imprecision in the language providing that the constancy evidence may be considered as "corroborating or not corroborating the victim's testimony in court," the instructions also provided that the victim's out-of-court statements are "not to be considered by you to prove the truth of the matter asserted, that is, the proof of what is said in those out-of-court statements ." The use of this language, which clearly distinguishes between constancy of accusation evidence and substantive evidence, diminishes the likelihood that the instructions misled the jury and prejudiced the petitioner. See State v. Daniel W. E ., 322 Conn. 593, 613-14, 142 A.3d 265 (2016). Furthermore, we agree with the habeas court's finding that, considering the totality of the evidence admitted in the petitioner's criminal trial, any overbreadth in the constancy of accusation instructions had no effect on the jury's decision to credit the testimony of the victim, who testified in graphic detail about four instances in which the petitioner sexually assaulted her. Attorney St. John attempted to impeach the victim's credibility by emphasizing that she did not report the assaults until months after they allegedly occurred, and had struggled to recall certain details surrounding the assaults. The victim's inability to recall extended only to minor details, however, and her statement to the police, which was admitted into evidence without limitation as a full exhibit, showed that she remained consistent with regard to the details of the assaults themselves. More significantly, substantial evidence corroborated the victim's testimony that she delayed in reporting the assaults not because she had fabricated them, but because she was afraid of the petitioner and thought that the assaults were her fault. Diane Edell, a clinical social worker and expert in the field of child sexual abuse, testified that child victims do not typically disclose their abuse immediately, but, rather, do so reluctantly and incrementally, often after a significant passage of time. This dynamic is especially prevalent, Edell explained, where the victim's assailant is a close family member, because the victim retains a sense of loyalty toward the assailant and does not want to get them into trouble. Consistent with the testimony of the victim and Edell, T and S testified that the victim was crying and seemed reluctant and afraid to tell them about the assaults. Sara Kasper, the physician who treated the victim after she reported the assaults to the police, testified that the victim identified her "cousin" as the person who assaulted her and became emotional when discussing the details of the abuse. B also testified that, during the summer of 2003-when the assaults were still ongoing-the victim indicated that she was frightened of the petitioner and was afraid to visit her uncle's house if the petitioner were there. B recalled one occasion during that time period when, while bringing the victim to her uncle's house, the victim started to cry after learning that the petitioner would be there. Accordingly, the state's case against the petitioner was strong even without the constancy of accusation evidence because the credibility of the victim's testimony was bolstered by independent sources. See State v. Samuels , 273 Conn. 541, 565, 871 A.2d 1005 (2005) (improper use of constancy of accusation evidence not prejudicial where state's case relied on independent sources of evidence); State v. Kelly , 256 Conn. 23, 40, 770 A.2d 908 (2001) (same). As this court has observed, "[t]he stronger the case, the less probable it is that a particular error caused actual prejudice." (Internal quotation marks omitted.) Weinberg v. Commissioner of Correction , 112 Conn.App. 100, 115, 962 A.2d 155, cert. denied, 291 Conn. 904, 967 A.2d 1221 (2009). We therefore conclude that the petitioner failed to demonstrate a reasonable probability that, had Attorney St. John objected and obtained jury instructions that conformed more precisely to the limitations of Troupe , the result of his criminal trial would have been different. Accordingly, the habeas court properly rejected this claim of ineffective assistance of counsel. III The petitioner next claims that "the habeas court erred in denying the claim of ineffective assistance of counsel. Trial counsel failed to adequately [cross-examine] and otherwise impeach the [victim]." We decline to review this claim because it was inadequately briefed. "We repeatedly have stated 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). In his brief, the petitioner began by observing that "the direct and cross-examinations of the [victim] were of paramount importance" because the state's case "hinged" on the victim's credibility. He then sets forth numerous paragraphs of case law discussing the Strickland performance standard in the context of cross-examinations. The petitioner makes no attempt, however, to analyze how Attorney St. John's cross-examination or impeachment of the victim fell below the objective standard of reasonableness. He does not identify any subject matter that Attorney St. John could have explored but failed to explore. The only substantive discussion concerns Attorney St. John's failure to object to evidence adduced by the prosecutor during the victim's direct examination, an entirely distinct theory of ineffective assistance. The petitioner's claim as it relates to inadequate cross-examination is entirely unsupported by analysis or citation to the record. Accordingly, we decline to review it. IV The petitioner's next claim is that Attorney St. John rendered ineffective assistance because he failed to provide the petitioner with adequate legal advice regarding whether to accept the state's plea offers. Specifically, he claims that Attorney St. John failed to "render any advice, candid or otherwise, that [the petitioner] should accept any [plea] offers made." A careful review of the petitioner's brief, however, reveals that his claim on appeal relates solely to the performance prong of Strickland , whereas the habeas court rejected this claim of ineffective assistance on the basis of the prejudice prong. Crediting Attorney St. John's testimony that the petitioner expressed a "strong desire" to have the jury decide the case, the habeas court concluded that the petitioner failed to demonstrate that he would have accepted any plea offer had Attorney St. John recommended that he do so. Because the petitioner has not challenged the habeas court's finding with regard to prejudice, he cannot prevail on this claim. See Fullenwiley v. Commissioner of Correction , 163 Conn.App. 761, 765, 134 A.3d 1259, cert. denied, 321 Conn. 907, 135 A.3d 279 (2016). V The petitioner's final claim is that Attorney St. John was ineffective because he "failed to conduct an adequate investigation which would have led to available exculpatory evidence." The petitioner's brief discusses three pieces of allegedly overlooked evidence. The first concerns a witness, D, whom the petitioner claims could have impeached part of the victim's testimony. The habeas court correctly found that the petitioner failed to demonstrate prejudice with regard to this claim because D did not testify at the habeas trial. This court has explained that the failure to elicit testimony in the habeas court from allegedly exculpatory witnesses precludes a finding of prejudice because "[w]ithout their testimony, the habeas court [cannot] evaluate them as witnesses, nor [can] it assess the import of their testimony." Henderson v. Commissioner of Correction , 129 Conn.App. 188, 194, 19 A.3d 705, cert. denied, 303 Conn. 901, 31 A.3d 1177 (2011) ; see also Townsend v. Commissioner of Correction , 116 Conn.App. 663, 668, 975 A.2d 1282 (petitioner failed to show prejudice where only testimony at habeas trial regarding exculpatory witness came from petitioner), cert. denied, 293 Conn. 930, 980 A.2d 916 (2009). The petitioner also argues that Attorney St. John failed to investigate a third party culpability witness who he refers to as "Tootsie." Although the petitioner testified about this witness at the habeas trial and mentioned the issue in his posttrial brief, the petitioner failed to specifically allege the failure to call this witness in his second amended habeas petition. Accordingly, the habeas court was not obligated to consider the claim, nor is this court on appeal. "Claims raised for the first time in posttrial briefs are not reviewable by the habeas court or by this court on appeal." Davis v. Commissioner of Correction , 160 Conn.App. 444, 454 n.7, 124 A.3d 992, cert. denied, 319 Conn. 957, 125 A.3d 1012 (2015). We also note that, although the habeas court did not rule on this claim, the petitioner failed as a matter of law to demonstrate prejudice because Tootsie did not testify at the habeas trial, thus making it impossible for the habeas court to assess the significance of Tootsie's potential testimony. See Townsend v. Commissioner of Correction , supra, 116 Conn.App. at 668, 975 A.2d 1282. Finally, the petitioner cites Attorney St. John's failure to offer into evidence the victim's records from the Department of Children and Families. The habeas court found that the petitioner abandoned this claim because he failed to address it in his posttrial brief. The petitioner has not challenged the habeas court's finding of abandonment. Accordingly, we decline to address this claim. The judgment is affirmed. In this opinion the other judges concurred. Judge Cremins presided over the evidentiary portion of the victim's criminal trial and sentencing. Judge Prescott presided over jury selection. The petitioner was convicted of three counts of sexual assault in the first degree in violation of General Statutes § 53a-70(a)(1), and three counts of sexual assault in the first degree in violation of § 53a-70(a)(2). State v. Antwon W., supra, 118 Conn.App. at 181-82, 982 A.2d 1112. On June 22, 2015, the trial court, Fasano, J., granted the petitioner's motion to correct an illegal sentence, concluding that the petitioner's sentences under § 53a-X70 (a) (1) and (2) violated his double jeopardy rights because he was sentenced twice for the same offense. Accordingly, the court ordered that the petitioner's conviction of the three counts of sexual assault in the first degree under § 53a-70(a)(2) be dismissed and that the sentences imposed on that conviction be vacated. Thereafter, the defendant filed a second motion to vacate an illegal sentence, asserting that the vacation of his conviction of those three counts rendered the total effective sentence imposed by Judge Cremins illegal. The court, Fasano, J., denied that motion on December 9, 2015, reasoning that the sentencing court did not rely on any of the vacated charges in imposing the petitioner's sentence. The petitioner's appeal from that decision is pending before this court. The petitioner also alleged claims of judicial misconduct and actual innocence. The habeas court deemed those claims abandoned because they were not briefed or otherwise discussed by the petitioner in the habeas proceedings. The petitioner also alleged that his trial counsel was ineffective by failing to object to the state's filing of a substitute information prior to the start of jury selection that added a number of additional charges; by failing to adequately prepare defense witnesses prior to trial; by failing to object to expert testimony offered by the state; by introducing evidence damaging to the defense; and by performing inadequately during closing argument. The habeas court found each of those claims to be without merit, and the petitioner has not challenged those findings in this appeal. The petitioner also alleged that his trial counsel was ineffective for failing to provide him with adequate legal advice about whether to testify at his criminal trial, and by failing to obtain the victim's records from the Department of Children and Families. The habeas court found that those claims had been abandoned and did not address them. We note our Supreme Court's recent decision in Hinds v. Commissioner of Correction, 321 Conn. 56, 136 A.3d 596 (2016), in which the court declined to address whether the cumulative error doctrine was applicable in habeas proceedings because the cumulative effect of the claimed improprieties would not have justified relief under that doctrine. Id., at 97, 136 A.3d 596 ("We are not persuaded that improprieties of this magnitude present a colorable basis for application of the cumulative error rule applied by the federal courts. Therefore, we need not consider whether our case law [declining to adopt the cumulative error rule] is in conflict with federal law."). The petitioner also contends that Attorney St. John rendered ineffective assistance by failing to object to the prosecutor's improper attempts during voir dire to implant bias into potential jurors' minds by posing questions that previewed the state's theory of the case. See State v. Lugo, 266 Conn. 674, 684, 835 A.2d 451 (2003) ("[A]ll too frequently such inquiries [during voir dire] represent a calculated effort on the part of counsel to ascertain before the trial starts what the reaction of the venire[person] will be to certain issues of fact or law or, at least, to implant in his mind a prejudice or prejudgment on those issues. Such an effort transcends the proper limits of the voir dire and represents an abuse of the statutory right of examination." [Internal quotation marks omitted.] ). That claim of ineffective assistance, however, is not reviewable in this appeal because, although the petitioner raised the issue in his posttrial reply brief, he failed to allege it in his second amended petition for a writ of habeas corpus. See Davis v. Commissioner of Correction, 160 Conn.App. 444, 454 n.7, 124 A.3d 992 ("[c]laims raised for the first time in posttrial briefs are not reviewable by the habeas court or by this court on appeal"), cert. denied, 319 Conn. 957, 125 A.3d 1012 (2015) ; Oliphant v. Commissioner of Correction, 146 Conn.App. 499, 528, 79 A.3d 77 ("[a] habeas court is not required to consider a claim that was not alleged [in the operative petition for habeas relief]"), cert. denied, 310 Conn. 963, 83 A.3d 346 (2013). We identify jurors by their initials to protect their privacy. See State v. Dorans, 261 Conn. 730, 749 n.23, 806 A.2d 1033 (2002). His assertion that one of the selected jurors previously had been the victim of sexual assault is based upon a concern raised by one of the jurors during the jury's deliberations, which we discuss in part I B of this opinion. Indeed, reviewing courts are limited in their ability to assess the reasonableness of trial counsel's tactics during voir dire because those tactics may often be dictated by a particular juror's demeanor, tone, and other physical characteristics not visible in the paper record. See State v. Miller, supra, 163 Conn.App. at 776, 137 A.3d 105 ("demeanor plays an important part" in determining potential jurors' impartiality [internal quotation marks omitted] ). That trial courts are accorded broad discretion in controlling the manner and scope of voir dire examinations; see State v. Rios, 74 Conn.App. 110, 114, 810 A.2d 812 (2002), cert. denied, 262 Conn. 945, 815 A.2d 677 (2003) ; reflects this reality. As the United States Court of Appeals for the Fifth Circuit has observed: "Written records give us only shadows for measuring the quality of such efforts. Indeed, we recognize this cold fact of life by our [deferential] standard for reviewing the rulings of judges presiding over jury selection.... The point is not that we review claims of ineffectiveness by a similar standard but rather that the standard by which we review decisions by trial judges accepts the reality that the selection process is more an art than a science, and more about people than about rules."Romero v. Lynaugh, supra, 884 F.2d at 878-79. The petitioner relies on Attorney Kaatz' testimony at the habeas trial that "there were some very serious omissions" in Attorney St. John's voir dire examinations, particularly his failure to ask the prospective jurors whether they had been the victim of a crime. The habeas court observed in its memorandum of decision, however, that Attorney Kaatz' "critiques of Attorney St. John's trial performance reflect more disagreement over litigation style and personal preference than negligent representation." Although the habeas court made that observation in an unrelated section of its memorandum of decision, it is evident that the habeas court did not accord any weight to Attorney Kaatz' opinion that Attorney St. John's trial decisions were objectively unreasonable. We cannot reevaluate that determination in this appeal. "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.) Saunders v. Commissioner of Correction, 137 Conn.App. 493, 502, 48 A.3d 728, cert. denied, 307 Conn. 920, 54 A.3d 182 (2012). In Warger, the United States Supreme Court held that rule 606 (b) of the Federal Rules of Evidence, which precludes evidence from being offered "about any statement made or incident that occurred during the jury's deliberations," bars the admission of "juror testimony during a proceeding in which a party seeks to secure a new trial on the ground that a juror lied during voir dire [in order to conceal bias]." (Internal quotation marks omitted.) Warger v. Shauers, supra, 135 S.Ct. at 525. The court reasoned that the plain text of the rule reflected the "federal approach" to impeachment of jury verdicts in that it "prohibit[s] the use of any evidence of juror deliberations, subject only to the express exceptions for extraneous information and outside influences." (Emphasis in original.) Id., at 527. Extraneous information, the court explained, consists of information "derive[d] from a source 'external' to the jury," such as "publicity and information related specifically to the case the jurors are meant to decide, while 'internal' matters include the general body of experiences that jurors are understood to bring with them to the jury room." Id., at 529. The petitioner in Warger sought to admit an affidavit averring that a juror made statements during deliberations suggesting that she had lied during voir dire about her impartiality and ability to award damages for negligence in an automobile crash. Id., at 524. The court concluded that the affidavit contained " 'internal' " information, and was therefore inadmissible, because it contained information that may have informed the juror's "general views about negligence liability for car crashes," but no information providing her or the rest of the jury with information about the specific car crash at issue in the case. Id., at 529. The respondent urges us to apply the restrictive "federal approach" adopted by the court in Warger because rule 606 (b) of the Federal Rules of Evidence is "virtually identical" to Practice Book § 42-33 and "the principles set forth in Warger exist independently in our jurisprudence." We offer no opinion on these arguments. The petitioner claimed in his direct appeal that the instruction provided in Judge Cremins' final charge to the jury misstated the law on the proper use of constancy of accusation evidence. See State v. Antwon W., supra, 118 Conn.App. at 200-201, 982 A.2d 1112. Because the claim was unpreserved and was not constitutional in nature, this court declined to review it 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). See State v. Antwon W., supra, at 201, 982 A.2d 1112. This court also declined to grant relief under the plain error doctrine. Id., at 202, 982 A.2d 1112 ; see Practice Book § 60-5. The petitioner claimed in his direct appeal that Judge Cremins abused his discretion in admitting the constancy of accusation testimony. State v. Antwon W., supra, 118 Conn.App. at 192, 982 A.2d 1112. In rejecting that claim, this court explained: "The 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. See, e.g., General Statutes (Rev. to 1969) § 53a-68, which concerned certain sexual offenses and provided in relevant part: 'A person shall not be convicted of any offense under this part, or of an attempt to commit such offense, solely on the uncorroborated testimony of the alleged victim, except as hereinafter provided. Corroboration may be circumstantial .' 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, supra, 237 Conn. at 293-306, 677 A.2d 917, our Supreme Court reviewed the state of the constancy of accusation doctrine from the common law to the present, reaffirming its basic elements. The court acknowledged that the necessity of the doctrine is to counter 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.' Id., at 303, 677 A.2d 917. The court detailed the rule, concluding 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.' Id., at 304-305, 677 A.2d 917 ; see also Conn. Code Evid. § 6-11 (c). "Turning now to the facts of the present case, we do not conclude that the court abused its discretion in allowing the constancy of accusation testimony to be admitted. The testimony of T, B and S was preceded by the victim's testimony covering the facts of the assaults and the persons to whom she had reported them. The constancy witnesses' testimony regarding the victim's out-of-court statements properly was limited to the fact that the victim had complained, the timing of each complaint and necessary details connecting the complaints to the assaults. Importantly, the testimony contained no extraneous details of the assaults, and it pertained only to the approximate time and place the assaults had occurred and the defendant's identity as the perpetrator. Such testimony is squarely within the parameters set forth in Troupe. " (Citations omitted; footnote omitted; internal quotation marks omitted.) State v. Antwon W., supra, 118 Conn.App. at 195-97, 982 A.2d 1112. Judge Cremins included this or similar language in the limiting instructions he provided prior to the testimony of T, B, and S, and in his final charge to the jury. Although Judge Cremins omitted this language from the instruction provided after the testimony of S, this omission is inconsequential, given that the jury had been instructed three times previously that the constancy evidence could not be considered for substantive purposes and was subsequently instructed to that effect in the final charge. In Daniel W. E., our Supreme Court suggested that, "to ensure clarity in future cases," the standard criminal jury instruction on constancy of accusation evidence, as well the corresponding § 6-11(c) of the Connecticut Code of Evidence, should be modified to explain that such evidence "is admissible only for the purpose of negating any inference that, because there was a delay in reporting the offense, the offense did not occur, and, therefore, such evidence may be used only in considering whether the complaint was made, and not to corroborate the substance of the complaint." State v. Daniel W. E., supra, 322 Conn. at 616, 142 A.3d 265. The court concluded, however, that the jury instruction provided on constancy of accusation evidence did not misstate the law regarding the proper use of such evidence. See id., at 612-13, 142 A.3d 265. The instructional language at issue in Daniel W. E. is largely similar to the language utilized in the present case. Unlike the present case, however, the instructions at issue in Daniel W. E. also contained language providing that constancy evidence is "only admitted for the limited purpose of corroborating what the complaining witness, [the victim], has testified to in court with respect only to the fact and timing of her complaint, the time and place of the alleged sexual assaults, and the identity of the alleged perpetrator." (Emphasis added; internal quotation marks omitted.) Id., at 606, 142 A.3d 265. The testimony from T and S regarding the victim's demeanor and tone while disclosing the abuse is not considered constancy of accusation evidence and, therefore, is admissible regardless of the limitations of Troupe. See State v. Burney, 288 Conn. 548, 557-58, 954 A.2d 793 (2008). The victim's statements to Dr. Kasper were admitted not under the constancy of accusation doctrine but under the medical treatment exception to the hearsay rule. See State v. Dollinger, 20 Conn.App. 530, 534-35, 568 A.2d 1058, cert. denied, 215 Conn. 805, 574 A.2d 220 (1990). Contrary to the petitioner's assertion that the habeas court "erred in denying" this claim, the habeas court never addressed it in its memorandum of decision. In his brief, the petitioner refers to the records as "the information contained in petitioner's exhibit 24."

12489955

JAMES E. v. COMMISSIONER OF CORRECTION

James E. v. Comm'r of Corr.

2017-07-25

SC 19854

593

597

163 A.3d 593

163

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

2021-09-08T21:16:17.237805+00:00

Fastcase

JAMES E. v. COMMISSIONER OF CORRECTION

JAMES E. v. COMMISSIONER OF CORRECTION SC 19854 Supreme Court of Connecticut. Argued April 6, 2017 Officially released July 25, 2017 James E. Mortimer, with whom, on the brief, was Michael D. Day, Farmington, for the appellant (petitioner). Steven R. Strom, assistant attorney general, with whom, on the brief, was George Jepsen, attorney general, for the appellee (respondent). Rogers, C.J., and Palmer, Eveleigh, McDonald, Espinosa, Robinson and Vertefeuille, Js. In accordance with our policy of protecting the privacy interests of the victims of the crime of risk of injury to a child, we decline to identify the victim or others through whom the victim's identity may be ascertained. General Statutes § 54-86e. 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, Robinson and Vertefeuille. Although Justices Palmer and Espinosa were not present when the case was argued before the court, they have read the briefs and appendices, and listened to a recording of the oral argument prior to participating in this decision.

2053

12699

McDONALD, J. The sole issue in this appeal is whether the habeas court properly dismissed the petition for writ of habeas corpus filed by the petitioner, James E., alleging that a 2013 amendment to General Statutes (Rev. to 2013) § 54-125a repealing a provision advancing certain inmates' parole eligibility dates by earned risk reduction credit violated the ex post facto clause of the United States constitution. See Public Acts 2013, No. 13-3, § 59 (P.A. 13-3). The habeas court dismissed the petition for lack of jurisdiction, determining that because the provision at issue had been enacted after the date of the petitioner's offenses and the parole eligibility provision in effect when the petitioner committed the offenses for which he is incarcerated was identical to the challenged 2013 provision, the petitioner suffered no increase in punishment that would constitute a violation of the ex post facto clause. On appeal, the petitioner claims that the proper comparison for purposes of the ex post facto analysis should have been between the provision in effect at the time of his sentencing and the challenged provision thereafter enacted, which would have reflected that he has suffered an increase in punishment. For the reasons set forth in Perez v. Commissioner of Correction , 326 Conn. 357, 374-75, 378-80, - A.3d -, 2017 WL 3128381 (2017), we disagree. Accordingly, we affirm the judgment of the habeas court. The facts surrounding the criminal offenses giving rise to the present habeas action are set forth in State v. James E. , 154 Conn.App. 795, 798-800, 112 A.3d 791 (2015), cert. granted, 321 Conn. 921, 138 A.3d 282 (2016), which resulted in the petitioner's conviction of two counts of assault of an elderly person in the first degree in violation of General Statutes § 53a-59a, reckless endangerment in the first degree in violation of General Statutes § 53a-63(a), and risk of injury to a child in violation of General Statutes (Rev. to 2009) § 53-21(a)(1). The following additional procedural and statutory history is relevant to the present appeal. The petitioner committed the offenses for which he is incarcerated in 2010. At that time, the relevant parole eligibility provision of General Statutes (Rev. to 2009) § 54-125a(b)(2) provided in relevant part: "A person convicted of . (B) an offense . where the underlying facts and circumstances of the offense involve the use, attempted use or threatened use of physical force against another person shall be ineligible for parole under subsection (a) of this section until such person has served not less than eighty-five per cent of the definite sentence imposed." Thereafter, in July, 2011, while the petitioner's criminal case was pending before the trial court, General Statutes § 18-98e went into effect, pursuant to which inmates were eligible to earn risk reduction credit toward a reduction of their sentences. The respondent, the Commissioner of Correction, was vested with discretion to award such credit and to revoke any or all credit. The legislature simultaneously amended General Statutes (Rev. to 2011) § 54-125a to take such credit into account to proportionately advance an inmate's parole eligibility date. Public Acts 2011, No. 11-51, § 25 (P.A. 11-51). The provision applicable to the petitioner provided in relevant part: "A person convicted of . (B) an offense . where the underlying facts and circumstances of the offense involve the use, attempted use or threatened use of physical force against another person shall be ineligible for parole under subsection (a) of this section until such person has served not less than eighty-five per cent of the definite sentence imposed less any risk reduction credit earned under the provisions of section 18-98e ." (Emphasis added.) General Statutes (Rev. to 2011) § 54-125a(b)(2), as amended by P.A. 11-51, § 25. In March, 2012, the petitioner was sentenced to a total effective sentence of twenty years incarceration, execution suspended after ten years, and three years of probation. State v. James E. , supra, 154 Conn.App. at 800, 112 A.3d 791. In 2013, after the petitioner began serving his sentence, the legislature repealed the language in the relevant parole eligibility provision of § 54-125a(b)(2) that required the parole eligibility date to be calculated on the basis of the definite sentence as reduced by earned risk reduction credit. See P.A. 13-3, § 59. As a result, although such credit continued to be available under § 18-98e to reduce an inmate's sentence, the original sentence controlled for purposes of determining parole eligibility, unaffected by such credit. Subsequently, the petitioner commenced the present habeas action, claiming that the 2013 amendment to the parole eligibility provision violated the ex post facto clause of the United States constitution because eliminating application of earned risk reduction credit to the parole eligibility date increased the period of time that inmates like him would be incarcerated before they could be released on parole. The respondent moved to dismiss the habeas petition for lack of subject matter jurisdiction. After a hearing, the habeas court granted the respondent's motion to dismiss on the ground that the petitioner had failed to allege a violation of the ex post facto clause, and, therefore, the court lacked subject matter jurisdiction. Relying on this court's analysis in Johnson v. Commissioner of Correction , 258 Conn. 804, 786 A.2d 1091 (2002), the court determined that the 2013 parole eligibility provision did not increase the punishment imposed on the petitioner because it was identical to the provision that was in place at the time that the petitioner committed the offenses giving rise to his incarceration. This appeal followed. The petitioner claims that the habeas court improperly limited its analysis to the parole eligibility provision that was in place at the time that the petitioner committed the offenses to determine whether the challenged provision created a genuine risk that the petitioner would be incarcerated longer under the latter. The petitioner, relying on Lynce v. Mathis , 519 U.S. 433, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997), asserts that the habeas court also may compare the provision in place at the time of his sentencing to the challenged provision to determine whether the ex post facto clause has been violated. The ex post facto claim raised by the petitioner in the present case is identical to one of the claims raised in Perez v. Commissioner of Correction , supra, 326 Conn. at 357, 163 A.3d 597, which we also have decided today. The petitioner in the present case and the petitioner in Perez are identically situated. Both committed their offenses prior to the enactment of the 2011 amendment permitting earned risk reduction credit to be applied to the calculation of parole eligibility and were sentenced prior to July 1, 2013, when the legislature repealed that provision. In Perez v. Commissioner of Correction , supra, at 374-75, 378-80, 163 A.3d 597 we concluded that the habeas court lacked subject matter jurisdiction over the ex post facto claim because the challenged 2013 provision was identical to the provision in place when that petitioner committed his offense, and relied on Johnson v. Commissioner of Correction , supra, 258 Conn. at 817, 786 A.2d 1091, as deeming the date of the offense the proper point of comparison. See id. (The ex post facto clause "forbids the imposition of punishment more severe than the punishment assigned by law when the act to be punished occurred. Critical to relief under the [e]x [p]ost [f]acto [c]lause is not an individual's right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated." [Internal quotation marks omitted.] ). We distinguished the circumstances presented in Perez from those in Lynce v. Mathis , supra, 519 U.S. at 448-49, 117 S.Ct. 891, in which the United States Supreme Court concluded that the habeas court had jurisdiction to consider an ex post facto claim that the challenged statute increased the petitioner's punishment from that imposed pursuant to the statute in effect on the date of his sentencing. Although the petitioner in Lynce raised a claim based on the statute in effect at sentencing, the court held that jurisdiction existed based on a comparison of the challenged statute and the statute in effect at the time of the offense, which the court determined was essentially the same as the statute in effect at the time of sentencing. The same fact that made Lynce distinguishable from Perez is also found in the present case, namely, that, in contrast to the ongoing good time credit scheme in Lynce , the petitioner in the present case was ineligible for any form of earned risk reduction credit at the time of his offense. Therefore, for the reasons set forth in Perez , we conclude that the habeas court lacked subject matter jurisdiction over the petitioner's ex post facto claim in the present case. The judgment is affirmed. In this opinion the other justices concurred. The habeas court granted the petitioner's petition for certification to appeal pursuant to General Statutes § 52-470(g). The petitioner subsequently appealed from the judgment of the habeas 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. General Statutes § 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 . 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.... "(d) Any credit earned under this section may only be earned during the period of time that the inmate is sentenced to a term of imprisonment and committed to the custody of the commissioner and may not be transferred or applied to a subsequent term of imprisonment...." We note that § 18-98e was amended in 2015; see Public Acts 2015, No. 15-216, § 9; that amendment, however, is not relevant to this appeal and we refer to the current revision of the statute.

12489975

J. Burke MANDABLE et al. v. PLANNING AND ZONING COMMISSION OF the TOWN OF WESTPORT et al.

Mandable v. Planning & Zoning Comm'n of Westport

2017-05-16

AC 38369

69

74

163 A.3d 69

163

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-09-08T21:16:17.237805+00:00

Fastcase

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

J. Burke MANDABLE et al. v. PLANNING AND ZONING COMMISSION OF the TOWN OF WESTPORT et al.

J. Burke MANDABLE et al. v. PLANNING AND ZONING COMMISSION OF the TOWN OF WESTPORT et al. AC 38369 Appellate Court of Connecticut. Argued January 4, 2017 Officially released May 16, 2017 Alan R. Spirer, Westport, for the appellants (plaintiffs). Peter V. Gelderman, Westport, for the appellees (named defendant et al.). Daniel J. Krisch, Hartford, with whom, on the brief, was Eric D. Bernheim, Westport, for the appellees (defendant Norman Kramer et al.). DiPentima, C.J., and Prescott and Lavery, Js.

2477

15691

LAVERY, J. The dispositive issue in this appeal is whether two lot line adjustment maps were improperly recorded in the Westport land records by the defendants Norman Kramer and Karen Kramer (Kramers) because the maps qualify as "resubdivisions," as that term is defined in General Statutes § 8-18, and thus required approval by the defendant Planning and Zoning Commission of the Town of Westport (commission) to be valid. The plaintiffs, J. Burke Mandable and Paula K. Mandable, appeal from the judgment of the trial court denying their request for declaratory relief and dismissing their appeal from the decision of the commission, in which the commission declined to consider their challenge to two maps that the Kramers recorded with approval from the defendant Laurence Bradley, the planning and zoning director of Westport, but not from the commission. On appeal, the plaintiffs claim that the trial court erred in concluding that the Kramers were not required to obtain the commission's approval because their maps were not "resubdivisions" under § 8-18. We affirm the judgment of the trial court. The following facts, as found by the court in its memorandum of decision, and procedural history are pertinent to this appeal. In 1929, before the town of Westport (town) adopted subdivision regulations, a map numbered 682 (1929 map) was filed in the Westport Land Records. The 1929 map encompassed the properties now known as 10 Wakeman Road and 11 Wakeman Road in Westport. The plaintiffs own 11 Wakeman Road and the Kramers own 10 Wakeman Road. In 2010, the Kramers submitted a map to Bradley for his review. The map purported to consolidate two parcels of land into a single lot at 10 Wakeman Road. In accordance with § 45-10 of the Westport Zoning Regulations, Bradley signed and dated the map, making it eligible for recording in the land records, and affixed it with the following notation: "[T]his plan is neither a subdivision nor a resubdivision as defined by the General Statutes of Connecticut and the [town] and may be recorded without prior approval of the [commission]. This stamp allows this map to be filed in the Westport Land Records. The presence of this stamp is not an endorsement of the accuracy of the map by the [town] or any board, commission, agency or official agent or employee of the town." The map was recorded in the land records in June, 2010. In 2013, the Kramers submitted a second map to Bradley for his review, which purported to divide 10 Wakeman Road into two lots. Bradley signed, dated, and stamped the map with the same notation, and the map was recorded in May, 2013. In January, 2014, after learning of the two lot line adjustment maps, the plaintiffs filed with the commission a "Petition for Determination of Re-Subdivision for Property Located at 10 Wakeman Road, Westport, Connecticut" (petition). In a letter dated January 20, 2014, the commission refused to consider the petition on the grounds that the plaintiffs' opportunity to appeal Bradley's actions "expired long ago" and that it was "unaware of any authority" upon which to consider the petition. The plaintiffs filed a two count amended complaint against the defendants in the trial court. The first count appealed the commission's refusal to consider their petition. The second count sought a declaratory judgment determining that, inter alia, the maps recorded by the Kramers were "resubdivisions" under § 8-18 and, therefore, required approval by the commission. The court rejected the plaintiffs' statutory argument in a memorandum of decision dated June 4, 2015. Relying on the plain language of § 8-18, the trial court determined that "there can be no 'resubdivision' unless there has first been a 'subdivision,' and the division of land prior to the adoption of subdivision regulations is not a subdivision." The court concluded that because the Kramers' maps did not modify a subdivision-that is, they altered the 1929 map that had been filed prior to the town's adoption of subdivision regulations-they were not resubdivisions and, therefore, did not require the commission's approval to be valid. Therefore, the court dismissed the plaintiffs' appeal and denied their request for declaratory relief. The plaintiffs claim that the court misconstrued § 8-18 in determining that the term "resubdivision" did not encompass the Kramers' maps. Specifically, the plaintiffs contend that § 8-18 defines "resubdivision" to include not only changes to maps of approved subdivisions , but also to changes to recorded maps that do not qualify as subdivisions because they were recorded before the town's subdivision regulations were adopted. The defendants respond that, under the plain language of the statute, a map cannot qualify as a resubdivision unless it modifies a subdivision. We agree with the defendants. "[I]ssues of statutory construction raise questions of law, 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.... General Statutes § 1-2z directs this court to first consider the text of the statute and its relationship to other statutes to determine its meaning. If, after such consideration, the meaning is plain and unambiguous and does not yield absurd or unworkable results, we shall not consider extratextual evidence of the meaning of the statute.... Only if we determine that the statute is not plain and unambiguous or yields absurd or unworkable results may we consider extratextual evidence of its meaning such as the legislative history and circumstances surrounding its enactment.... The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation.... We presume that the legislature did not intend to enact meaningless provisions.... [S]tatutes must be construed, if possible, such that no clause, sentence or word shall be superfluous, void or insignificant ." (Citations omitted; footnote omitted; internal quotation marks omitted.) Marchesi v. Board of Selectmen , 309 Conn. 608, 614-15, 72 A.3d 394 (2013). Turning to the relevant statutory provisions, General Statutes § 8-25 (a) recognizes that "the filing or recording of a subdivision plan without . approval [from the commission] shall be void." Section 8-18 provides in relevant part that "[a]s used in this chapter . 'subdivision' means the division of a tract or parcel of land into three or more parts or lots made subsequent to the adoption of subdivision regulations by the commission, for the purpose . of sale or building development . and includes resubdivision; 'resubdivision' means a change in a map of an approved or recorded subdivision or resubdivision if such change (a) affects any street layout shown on such map, (b) affects any area reserved thereon for public use or (c) diminishes the size of any lot shown thereon and creates an additional building lot, if any of the lots shown thereon have been conveyed after the approval or recording of such map ." (Emphasis added.) Our analysis begins and ends with the plain language of § 8-18-specifically the language providing that resubdivision means a change in a map "of an approved or recorded subdivision ." (Emphasis added.) The words "approved" and "recorded" both modify the word "subdivision." Thus, resubdivision means a change to either an approved subdivision or a recorded subdivision. In either case, however, a map is not a resubdivision unless it alters a "subdivision," which, as defined in the preceding clause, is a division of land into three or more parts made subsequent to the adoption of subdivision regulations. See Stamford Ridgeway Associates v. Board of Representatives , 214 Conn. 407, 431, 572 A.2d 951 (1990) ("[i]t is a familiar principle of statutory construction that where the same words are used in a statute two or more times they will ordinarily be given the same meaning in each instance" [internal quotation marks omitted] ). As the trial court succinctly put it, "there can be no 'resubdivision' unless there has first been a 'subdivision,' and the division of land prior to the adoption of subdivision regulations is not a subdivision." The text of § 8-18 is not reasonably susceptible to any other interpretation. Attempting to avoid this result, the plaintiffs focus on the phrase "approved or recorded" in § 8-18, specifically the word "or," which they contend supports the interpretation that "resubdivision" encompasses changes to approved subdivisions as well as maps that are not subdivisions because they were recorded before the subdivision regulations were adopted. We disagree. That construction completely ignores and would render meaningless the word "subdivision," which, as previously explained, is the object of the phrase "approved or recorded subdivision ." General Statutes § 8-18"must be construed, if possible, such that no clause, sentence or word shall be superfluous, void or insignificant ." (Internal quotation marks omitted.) Marchesi v. Board of Selectmen , supra, 309 Conn. at 615, 72 A.3d 394. The plaintiffs' proposed construction is also untenable in light of the principle that "[t]he legislature is always presumed to have created a harmonious and consistent body of law.... 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.) Sokaitis v. Bakaysa , 293 Conn. 17, 23, 975 A.2d 51 (2009). Section 8-18 provides that " 'subdivision' means the division of a tract or parcel of land into three or more parts or lots made subsequent to the adoption of subdivision regulations . and includes resubdivision ." (Emphasis added.) If "resubdivision" meant maps recorded prior to the adoption of subdivision regulations, as the plaintiffs suggest, then the first half of the definition of "subdivision" would be meaningless, a result the legislature could not have intended. Having resolved that question of statutory construction, we conclude that the plaintiffs cannot prevail. They do not contend that the Kramers' maps modified a "subdivision" within the meaning of § 8-18. Nor would any such argument be availing, for the Kramers' maps purported to alter the 1929 map, which had been recorded before the town adopted its subdivision regulations. To be a subdivision, "[t]he division of land must occur subsequent to the adoption of subdivision regulations by the planning commission.... Accordingly, any divisions of the land prior to the adoption of subdivision regulations don't count, and the first division there-after, namely into two lots, is exempt as a so-called free cut." (Internal quotation marks omitted.) Lost Trail, LLC v. Weston , 140 Conn.App. 136, 145 n.8, 57 A.3d 905, cert. denied, 308 Conn. 915, 61 A.3d 1102 (2013), quoting R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) § 10.9, p. 290. Because the Kramers' maps do not alter a subdivision, they cannot, as we have explained, be considered resubdivisions, and are therefore exempt from the requirement of approval by the commission. Accordingly, the court properly dismissed the plaintiffs' appeal and denied their request for declaratory relief. The judgment is affirmed. In this opinion the other judges concurred. General Statutes § 8-18 provides in relevant part: "As used in this chapter . 'subdivision' means the division of a tract or parcel of land into three or more parts or lots made subsequent to the adoption of subdivision regulations by the commission, for the purpose, whether immediate or future, of sale or building development expressly excluding development for municipal, conservation or agricultural purposes, and includes resubdivision; 'resubdivision' means a change in a map of an approved or recorded subdivision or resubdivision if such change (a) affects any street layout shown on such map, (b) affects any area reserved thereon for public use or (c) diminishes the size of any lot shown thereon and creates an additional building lot, if any of the lots shown thereon have been conveyed after the approval or recording of such map ." Joint references herein to the Kramers, the commission and Bradley are to the defendants. The plaintiffs also claim that the court erred in rejecting their argument that the commission improperly delegated the authority to Bradley to determine whether a map submitted for filing in the land records qualified as a subdivision or resubdivision. The plaintiffs conceded at oral argument that it would be unnecessary to reach this claim if we determined that the Kramers' maps were not resubdivisions. Because we conclude that the Kramers' maps were not resubdivisions, we do not address this claim. Section 45-10 of the Westport Zoning Regulations provides in relevant part: "In instances where a division of land or adjustment of a property line is involved, the proposed record map will be subject to an administrative review by the Planning and Zoning Director . to determine that the division of land or property line adjustment is in conformance with the applicable zoning regulations. After this determination has been made, a stamp signed by the Director . will be placed upon the proposed record map. The record map is then eligible for filing within the Westport Land Records." In support of count one, the plaintiffs alleged that the commission acted illegally, arbitrarily, and in an abuse of its discretion by failing to review their claims that (1) Bradley erroneously determined that neither of the Kramers' maps were resubdivisions requiring commission approval, and (2) the commission illegally delegated authority to Bradley to determine whether maps submitted for filing constitute subdivisions. The plaintiffs also sought a declaratory judgment determining that the commission illegally delegated authority to Bradley to determine whether maps submitted for filing constitute subdivisions. The trial court rejected this argument in its June 4, 2015 memorandum of decision. See footnote 3 of this opinion. With respect to the court's dismissal of the plaintiffs' appeal from the commission's refusal to hear their petition, the court observed that, while it could have remanded the case to the commission for consideration of the merits of the plaintiffs' claims, such an additional step was unnecessary because the issues presented pure questions of law and were based upon undisputed facts. Thus, the court dismissed the plaintiffs' appeal rather than remand the case to the commission. Because the text of § 8-18 is unambiguous, we decline the plaintiffs' invitation to delve into the legislative history of the statute or the public policies it was designed to implement. See Marchesi v. Board of Selectmen, supra, 309 Conn. at 614-15, 72 A.3d 394.

12489997

STATE of Connecticut v. Tauren WILLIAMS-BEY

State v. Williams-Bey

2017-05-09

AC 37430

31

32

164 A.3d 31

164

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-09-08T21:16:17.237805+00:00

Fastcase

STATE of Connecticut v. Tauren WILLIAMS-BEY

STATE of Connecticut v. Tauren WILLIAMS-BEY AC 37430 Appellate Court of Connecticut. Reconsidered April 13, 2017 Officially released May 9, 2017 Heather Clark, assigned counsel, for the appellant (defendant). Michele C. Lukban, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, Vicki Melchiorre, senior assistant state's attorney, and Melissa E. Patterson, assistant state's attorney, for the appellee (state). Lavine, Alvord and Beach, Js. This case was originally decided on August 23, 2016, by the same three member panel of this court. Thereafter, our Supreme Court, sua sponte, directed this court to " reconsider its ruling that the trial court did have jurisdiction over the motion to correct an illegal sentence in light of our holding in State v. Delgado, 323 Conn. 801, [151 A.3d 345] (2016), and State v. Boyd, 323 Conn. 816, [151 A.3d 355] (2016)." The listing of judges reflects their seniority status on this court as of the date of reconsideration.

419

2609

PER CURIAM. This court originally issued its decision in the present case on August 23, 2016. See State v. Williams-Bey , 167 Conn.App. 744, 144 A.3d 467 (2016), petition for cert. filed (Conn. September 12, 2016) (No. 160154). In our decision, we concluded that the form of the trial court's judgment was improper and remanded the case "with direction to render judgment denying the defendant's motion to correct an illegal sentence." Id., at 781, 144 A.3d 467. Several months later, our Supreme Court issued its decision in State v. Delgado , 323 Conn. 801, 151 A.3d 345 (2016), and thereafter, on February 7, 2017, issued the following order. "No action is taken on the defendant-appellant [Tauren Williams-Bey's] petition for certification to appeal filed September 12, 2016, at this time. It is hereby ordered, sua sponte, that the Appellate Court's decision in State v. Tauren Williams-Bey , 167 [Conn.App.] 744, 144 A.3d 467 (2016), is remanded to that court with direction to reconsider its ruling that the trial court did have jurisdiction over the motion to correct an illegal sentence in light of our holding in State v. Delgado , 323 Conn. 801, 151 A.3d 345 (2016), and State v. Boyd , 323 Conn. 816, [151 A.3d 355] (2016)." Upon reconsideration, we are constrained by Delgado to conclude that the trial court properly dismissed the defendant's motion to correct an illegal sentence and that its judgment should be affirmed. See State v. Delgado , supra, 323 Conn. at 801, 151 A.3d 345. The trial court's dismissal of the defendant's motion to correct an illegal sentence is affirmed.

12490075

John GIROLAMETTI, Jr., et al. v. MICHAEL HORTON ASSOCIATES, INC., et al. John Girolametti, Jr., et al. v. VP Buildings, Inc., et al.

Girolametti v. Michael Horton Assocs., Inc.

2017-06-06

AC 38208, (AC 38093), (AC 38094), (AC 38095), (AC 38097), (AC 38098), (AC 38099)

731

764

164 A.3d 731

164

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-09-08T21:16:17.237805+00:00

Fastcase

John GIROLAMETTI, Jr., et al. v. MICHAEL HORTON ASSOCIATES, INC., et al.

John GIROLAMETTI, Jr., et al. v. MICHAEL HORTON ASSOCIATES, INC., et al. John Girolametti, Jr., et al. v. VP Buildings, Inc., et al. AC 38208, (AC 38093), (AC 38094), (AC 38095), (AC 38097), (AC 38098), (AC 38099) Appellate Court of Connecticut. Argued December 8, 2016 Argued December 9, 2016 Officially released June 6, 2017 Brian J. Donnell, with whom, on the brief, was Michael G. Caldwell, for the appellants in AC 38208 and the appellees in AC 38093, AC 38094, AC 38095, AC 38097, AC 38098, and AC 38099 (plaintiffs in both cases). Daniel J. Krisch, with whom was Frederick E. Hedberg, for the appellee in AC 38208 (defendant in the first case Rizzo Corporation). Deborah Etlinger, with whom, on the brief, was Matthew Horowitz, for the appellant in AC 38093 (defendant in the first case Lindade Construction, Inc.). Anita C. Di Gioia, for the appellant in AC 38094 (defendant in the first case Dominic Quaraglia Engineering, Inc.). Kevin M. Godbout, for the appellant in AC 38095 (named defendant in the first case). Jared Cohane, with whom, on the brief, was Luke R. Conrad, for the appellant in AC 38097 (defendant in the first case Test-Con, Inc.). Curtis L. Brown, pro hac vice, with whom was Davis S. Hardy, for the appellant in AC 38098 (defendant in the second case Bluescope Buildings of North America, Inc., et al.). Sean R. Caruthers, for the appellant in AC 38099 (defendant in the second case Pat Munger Construction Company, Inc.). Sheldon, Mullins and Bishop, Js.

15954

102175

BISHOP, J. These seven appeals arise from disputes regarding the construction of an expansion to a Party Depot Store (store) located in Danbury. The owners of the store, the plaintiffs John Girolametti, Jr., and Cindy Girolametti, brought actions against the general contractor, Rizzo Corporation (Rizzo), and seven subcontractors and sub-subcontractors who worked on the construction project, on various claims relating to the quality of the work provided. All eight defendants filed motions for summary judgment. The owners of the store appeal from the court's judgment granting Rizzo's motion for summary judgment. The subcontractors and sub-subcontractors appeal from the court's judgment denying all of their motions for summary judgment. Although each appeal involves some unique facts and implicates the interests of parties specific to that appeal, the factual backdrop to these appeals is sufficiently common to enable us, on review, to set forth the facts that underlie them in one background statement. Additional facts will be noted, as appropriate, in our discussion of each appeal. I FACTS AND PROCEDURAL HISTORY In 2007, the plaintiffs, John Girolametti, Jr., and Cindy Girolametti, were the owners of property located at 43 South Street in Danbury. Later, on March 4, 2008, the Girolamettis transferred title to that property to 43 South Street, LLC, an entity of which they are the sole members. The Girolamettis are also the sole shareholders of Party Depot, Inc., an entity that leased the property from 43 South Street, LLC, on February 27, 2008. Although the Girolamettis and all of their foregoing entities are parties to these appeals, John Girolametti, Jr., has acted on behalf of all such parties in regard to the Party Depot project since its inception. Accordingly, for economy of language, we refer to the Girolamettis and their entities as Girolametti throughout our discussion of the appeals unless otherwise appropriate. Similarly, we refer to the Party Depot project simply as the project. A The Project In June of 2007, Girolametti submitted a proposed building contract to the defendant Rizzo, a Connecticut corporation located in Danbury, under which Rizzo would serve as the general contractor for the construction of an expansion of the store. The project was to be designed by architect Russell J. Larrabee and structurally engineered by Richard Marnicki of Marnicki Associates, LLC. Between the date on which the contract was first proposed by Girolametti, June 22, 2007, and the date on which it was signed by Rizzo, November 12, 2007, several changes were made to the project. Most notably, the parties agreed to alter the project's original design by using a pre-engineered building (PEB), which was to be added to the existing structure. Due to this change, Girolametti and Marnicki could not come to terms as to Marnicki's services for the value engineering requirements of the anticipated PEB, and Marnicki left the project. As a result of his departure, Marnicki, whose design specifications for the project had previously been submitted to Danbury's municipal authorities, contacted the city with instructions not to use his structural drawings for permitting purposes. The contract ultimately signed by Rizzo and Girolametti was on an American Institute of Architects "Standard Form of Agreement Between Owner and Contractor" and provided for a contract price of $2,435,100. The agreement included, inter alia, a provision requiring the submission of all disputes regarding the project between the owner and the contractor to binding arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association. The contract also had an article concerning subcontractors, which provided in relevant part: "By an appropriate agreement, written where legally required for validity, [Rizzo] shall require each subcontractor, to the extent of the work to be performed by the subcontractor, to be bound to [Rizzo] by the terms of the contract documents and to assume toward [Rizzo] all the obligations and responsibilities which [Rizzo], by these documents, assumes toward [Girolametti] and [Larrabee]. Said agreement shall preserve and protect the rights of [Girolametti] and [Larrabee] under the contract documents with respect to the work to be performed by the subcontractor so that the sub-contracting thereof will not prejudice such rights, and shall allow to the subcontractor, unless specifically provided otherwise in the [Rizzo]-subcontractor agreement, the benefit of all rights, remedies and redress against [Rizzo] that [Rizzo], by these documents, has against [Girolametti]. Where appropriate, [Rizzo] shall require each subcontractor to enter into similar agreements with his sub-subcontractors. [Rizzo] shall make available to each proposed subcontractor, prior to the execution of the subcontract, copies of the contract documents to which the subcontractor will be bound by this paragraph 5.3, and identify to the subcontractor any terms and conditions of the proposed subcontract which may be at variance with the contract documents. Each subcontractor shall similarly make copies of such documents available to his sub-subcontractors." As plans were evolving from an architect designed and individually engineered building to the purchase of a PEB for the project addition, Rizzo, in July of 2007, entered into a subcontract with the defendant Michael Horton Associates, Inc. (Horton), a Branford corporation engaged in the business of providing professional structural engineering services. Under this contract, Horton was to design the lower level parking garage structure and the supported floor slab at grade level with the understanding that the superstructure of the building above grade level would be designed by the PEB manufacturer. Horton also agreed to develop a snow drift load plan for the existing building roof structure, to include an analysis of the existing roof framing and a design for any needed framing reinforcement in this area. The contract amount for Horton's services was $23,000. Consistent with the understanding between Girolametti and Rizzo that the project would involve a PEB, Rizzo entered into a $402,000 subcontract with the defendant Pat Munger Construction Company, Inc. (Munger), a Connecticut corporation located in Branford, for the purchase and erection of a pre-engineered steel building for the project. The subcontract provided, inter alia, that Munger would provide Rizzo and Larrabee with proposed shop drawings, as furnished by the building manufacturer for the purpose of completely describing the details of the PEB construction. In a portion of the agreement regarding Munger's potential liability, the parties agreed that Munger would be liable to Rizzo "for any direct costs [Rizzo] incurs as a result of [Munger's] failure to perform this subcontract in accordance with this Agreement. [Munger's] failure to perform includes the failure to perform of its subcontractors of any tier and any [suppliers]." Pursuant to its subcontract with Rizzo, Munger, in turn, entered into a sub-subcontract with Varco Pruden Buildings, Inc. (VP), an Ohio corporation that later merged with the defendant BlueScope Buildings North America, Inc. (BlueScope), for the purchase of the PEB. At the time, Munger was an authorized builder of VP manufactured buildings. In conjunction with this order, the defendant Steven Oakeson, an employee of BlueScope and a licensed professional engineer, signed and sealed the final erection drawings for the PEB ordered by Munger for the project. Rizzo also subcontracted with the defendant Lindade Corporation (Lindade), located in Bridgeport, to perform construction services in connection with the project. Generally, Lindade's undertaking involved carpentry services in both the existing building and the anticipated addition. The contract price for Lindade's services was $245,988. Notably, Lindade's agreement with Rizzo contained the following provisions. Section 1 (b) of the agreement provides: "[Lindade] assumes toward [Rizzo] all obligations, risks, and responsibilities for the Work, which [Rizzo] assumes toward [Girolametti] in the Contract Documents, and shall be bound to [Rizzo] in the same manner and to the same extent [Rizzo] is bound to [Girolametti] by the Contract Documents." Section 2 (f) of the agreement provides: "[Lindade] acknowledges that [Girolametti's] payment to [Rizzo] for any work performed by [Lindade] is an express condition precedent to any . payment to [Lindade from Rizzo] and that [Rizzo] is under no obligation to make any partial or final payments to [Lindade] until and unless [Girolametti] first pays [Rizzo]. ." Section 4 (b) of the agreement provides: "[Lindade] shall be liable to [Rizzo] for any costs [Rizzo] incurs as a result of [Lindade's] failure to perform this subcontract in accordance with its terms. [Lindade's] failure to perform includes the failure to perform of its subcontractors of any tier and all [suppliers]. [Lindade's] liability includes, but is not limited to, (1) damages and other delay costs payable by [Rizzo] to [Girolametti] ." Section 9 (a) of the agreement provides: "If, any action by [Girolametti] or involving the Contract Documents is reason for any dispute between [Rizzo] and [Lindade], [Lindade] agrees to be bound to [Rizzo] as [Rizzo] is bound to [Girolametti] by the terms of the Contract Documents and by any preliminary and final decisions or determinations made by the party, board or court the Contract Documents authorize, or by law, whether or not [Lindade] is a party to such proceedings. ." Lindade, in turn, entered into a sub-subcontract with the defendant Domenic Quaraglia Engineering, Inc. (Quaraglia), a Massachusetts corporation, for structural engineering services in connection with the project. Specifically Quaraglia undertook to design and detail the infill stud wall and canopy roof along one wall of the building in accordance with architectural and structural drawings. The contract price for Quaraglia's services was $3825. The last party to these appeals is the defendant Test-Con Inc. (Test-Con), a Connecticut corporation with its principal place of business in Danbury. Girolametti retained Test-Con while the project was underway to perform construction material inspection and testing services as periodically requested by Girolametti, for which Girolametti, in turn, was obligated to pay Test-Con an hourly fee based on the particular scope and focus of inspection and testing requested. B The Arbitration Work on the project proceeded and was completed by November 3, 2008, the date on which the city of Danbury awarded a certificate of occupancy for the store. The parties, however, had disputes regarding their respective rights and obligations, for which Rizzo sought resolution through arbitration. Accordingly, on April 29, 2009, Rizzo applied for arbitration through the American Arbitration Association, claiming that Girolametti owed it further sums beyond the contract price for extra work performed and costs incurred on the project. In response, Girolametti filed a counterclaim, seeking compensation of $406,431 for the cost of repairing Rizzo's alleged defects and completing the project and for certain credits claimed by Girolametti, and the additional sum of $354,572 for lost income caused by Rizzo's alleged failure to complete the project in a timely and proper manner. Before the commencement of the arbitration, both parties filed memoranda of law. In its submission to the arbitrator, Girolametti alleged that Rizzo was responsible for multiple construction defects. Girolametti claimed that Rizzo had "failed to provide a pre-engineered structure that complied with the intent of the original design" and that "some of the most fundamental construction elements were completely eliminated." Additionally, while the arbitration was pending, Marnicki provided Girolametti with a report concerning his review of the construction, with particular regard to design issues concerning loading factors and the building's load carrying capacity. The arbitration hearings commenced in December, 2009, and were concluded on December 15, 2010, after thirty-five days of hearings. The record reflects that on December 8, 2010, the thirty-third day of the hearings, Girolametti made the decision to no longer participate in the hearings, despite the urging of the arbitrator that Girolametti proceed with the presentation of his damages claims. On March 28, 2011, the arbitrator issued his award, in which he ordered Girolametti to pay Rizzo $508,597 for sums due, after accounting for credits due to Girolametti on the basis of evidence during arbitration, with interest to run at the rate of 5 percent per annum until the award was fully paid. The arbitrator also ordered Rizzo to provide Girolametti with close out materials including warranties from the contractor and the subcontractors. With respect to claims made by Girolametti, the arbitrator stated: "[Girolametti] made a conscious and informed decision to no longer attend the scheduled [American Arbitration Association] hearings and intentionally refused to present any evidence or expert witnesses to explain or otherwise justify any alleged damages. The only conclusion that can be drawn from this decision is that either [Girolametti] did not incur any damages due to [Rizzo's] construction of the project, or [Girolametti] was unable to prove any of the damages [he] alleged in [his] prehearing brief." Nonetheless, the arbitrator did discuss and assess Girolametti's claims as part of his written award. With respect to structural issues, the arbitrator rejected Girolametti's claim that the second floor of the building was not being occupied due to safety concerns. Rather, the arbitrator found that Girolametti was not permitted by Danbury zoning regulations to use the second floor for any purpose, and in fact that the city, after conducting an inspection, had found the structure to be safe with no reason to restrict or remove its certificate of occupancy. The arbitrator concluded: "[Girolametti] is not entitled to any damages or credits for structural issues." C The Underlying Cases The dispute between Girolametti and Rizzo that began in arbitration ultimately metastasized into litigation involving Girolametti and Rizzo and several other entities that performed work on the project. On December 15, 2010, while the arbitration hearings were still in progress, Girolametti filed a declaratory judgment action in the Danbury Superior Court, seeking a determination that its contract with Rizzo was void, and therefore that it was not obliged to submit its dispute with Rizzo to arbitration. See Girolametti v. Rizzo Corp. , Superior Court, judicial district of Danbury, Docket No. CV-11-6005230-S, 2013 WL 452764 (January 3, 2013). While the declaratory judgment action was pending, the arbitrator issued his award, on March 28, 2011. Thereafter, Rizzo applied, in the declaratory judgment action, to have the court confirm the award. Id. The court granted Rizzo's application and confirmed the arbitration award. Id. The court's judgment later was affirmed by this court. See Girolametti v. Rizzo Corp. , 152 Conn.App. 60, 97 A.3d 55 (2014). Also, on May 18, 2011, more than thirty days after receiving notice of the arbitration award, and after the court had confirmed the award, Girolametti filed an application in the Danbury Superior Court to vacate that award on the basis of various alleged improprieties. See Girolametti v. Rizzo Corp. , 52 Conn.Supp. 592, 77 A.3d 217 (2012). Thereafter, Rizzo filed a motion to dismiss the application to vacate because of its untimeliness, which the court granted. Id., at 601, 77 A.3d 217. On appeal, this court affirmed the court's judgment of dismissal. See Girolametti v. Rizzo Corp. , 144 Conn.App. 77, 70 A.3d 1162 (2013). Two actions that have since been consolidated underlie the present appeals. By complaint filed March 22, 2011, after the arbitration hearings had concluded but before the issuance of the arbitration award, Girolametti brought an action in the Danbury Superior Court against Horton, alleging that Horton had been negligent in the performance of engineering services in connection with the project. Through an apportionment complaint, Horton brought into the litigation as apportionment defendants Rizzo, VP, Quaraglia, Lindade, and Test-Con. Thereafter, Girolametti filed a fourth amended complaint, dated August 7, 2014, in which he made direct claims against Horton, Rizzo, Quaraglia, Lindade, and Test-Con. Second, on November 30, 2011, Girolametti brought an action in the Danbury Superior Court against VP, BlueScope, Oakeson, Munger, and Rizzo. Thereafter, on July 16, 2014, Girolametti filed a third amended complaint in that matter, in which he removed direct claims against Rizzo, but maintained direct claims against VP, BlueScope, Oakeson, and Munger. At the heart of many of Girolametti's claims in these underlying cases are the design and construction of the steel joists, engineered by a subcontractor of VP, Commercial Metals Company, to support the second floor of the building (defective joists claim). Each joist is comprised of two parallel steel bars that are connected by computer designed web reinforcements, which create a structural beam. Steel decking and a reinforced concrete slab sit on top of the structural beams. Girolametti alleged that the joists' design was defective, did not comply with the project's design requirements, and lacked the required loading capacity. Girolametti further alleged that many of the contractors, subcontractors, and sub-subcontractors were aware of these alleged defects and intentionally hid them from Girolametti. In the actions underlying these appeals, each of the defendants moved for summary judgment against Girolametti on the grounds of res judicata, collateral estoppel and, in one instance, Girolametti's failure to timely move to vacate the award. In response, the court granted the motion filed by Rizzo but denied the motions for summary judgment filed by the other defendants on the ground that they lacked privity with Rizzo by virtue of not having been parties to the arbitration. These appeals followed. II APPLICABLE LEGAL PRINCIPLES Having set forth the common facts and procedural history of these appeals, we now detail the legal principles that are germane, albeit with varying emphasis, to the claims presented on appeal. A Standard of Review We address first our standard of review. "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact. . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent. . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the non-moving party has no obligation to submit documents establishing the existence of such an issue. . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue. . [I]t is only [o]nce [the] defendant's burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial." (Citation omitted; internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America , 310 Conn. 304, 319-20, 77 A.3d 726 (2013). The scope of our review of the trial court's decision to grant or deny a defendant's motion for summary judgment is plenary. Id., at 313, 77 A.3d 726. The applicability of the doctrines of res judicata and collateral estoppel present questions of law over which we employ plenary review. Lighthouse Landings, Inc. v. Connecticut Light & Power Co. , 300 Conn. 325, 345, 347, 15 A.3d 601 (2011). Additionally, as one of the appeals raises the issue of the court's subject matter jurisdiction on the basis of Girolametti's failure to timely file a motion to vacate the arbitration award, we note that "because [a] determination regarding a trial court's subject matter jurisdiction is a question of law, our review is plenary." (Internal quotation marks omitted.) Ungerland v. Morgan Stanley & Co. , 132 Conn.App. 772, 775, 35 A.3d 299 (2012). B Finality of Judgments Because all but one of the appeals concern the trial court's denial of motions for summary judgment, we first address legal principles pertaining to finality of judgments before proceeding to a discussion of the substantive issues on appeal. Although, as a general matter, this court only has jurisdiction to hear appeals from final judgments, there are particular circumstances in which we may hear an appeal from an otherwise interlocutory judgment. The trial court's denial of a motion for summary judgment raising a claim of res judicata or collateral estoppel presents such an instance. Because one purpose of the doctrines of res judicata and collateral estoppel is to avoid unnecessary and duplicative litigation, we treat the denial of a motion for summary judgment based on the doctrines of collateral estoppel or res judicata as a final judgment for appeal purposes. Wheeler v. Beachcroft, LLC. , 320 Conn. 146, 149 n.3, 129 A.3d 677 (2016) ; Santorso v. Bristol Hospital , 308 Conn. 338, 344, 63 A.3d 940 (2013) ; see State v. Osuch , 124 Conn.App. 572, 583, 5 A.3d 976 ("[a]pplication of [res judicata] . effectuates public policy by promoting judicial economy and avoiding inconsistent judgments"), cert. denied, 299 Conn. 918, 10 A.3d 1052 (2010). Finally, regarding the issue of finality of judgments, although normally the court's denial of a motion for summary judgment on grounds other than those that fully conclude the rights of the parties would not be considered a final judgment for appeal purposes, if summary judgment is sought primarily on the basis of res judicata or collateral estoppel but the movants move unsuccessfully for summary judgment on an alternative ground as well, the court may review the denial of such a claim along with the denial of the res judicata defense when the two are inextricably intertwined with one another. Santorso v. Bristol Hospital , supra, 308 Conn. at 354 n.9, 63 A.3d 940. We turn now to a review of the legal principles germane to the substance of the issues on appeal. C Collateral Estoppel and Res Judicata In each of the underlying cases, Girolametti sought damages against a business entity that performed services relating to the project. Also, in each case, the defendant moved for summary judgment on the primary basis of collateral estoppel and/or res judicata. We first note that "[a]n arbitration award is accorded the benefits of the doctrine of res judicata in much the same manner as the judgment of a court." (Internal quotation marks omitted.) Fink v. Golenbock , 238 Conn. 183, 196, 680 A.2d 1243 (1996). Accordingly, we now turn to a discussion of those interrelated doctrines. "The doctrines of res judicata and collateral estoppel protect the finality of judicial determinations, conserve the time of the court, and prevent wasteful relitigation"; (internal quotation marks omitted) Virgo v. Lyons , 209 Conn. 497, 501, 551 A.2d 1243 (1988) ; and they "have been described as related ideas on a continuum." (Internal quotation marks omitted.) Efthimiou v. Smith , 268 Conn. 499, 506, 846 A.2d 222 (2004). "[C]ollateral 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." Id."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. . If an issue has been determined, but the judgment is not dependent upon the determination of the issue, the parties may relitigate the issue in a subsequent action. Findings on nonessential issues usually have the characteristics of dicta." (Citations omitted; emphasis in original; internal quotation marks omitted.) Dowling v. Finley Associates, Inc. , 248 Conn. 364, 374, 727 A.2d 1245 (1999) ; see also Efthimiou v. Smith , supra, 268 Conn. at 506-507, 846 A.2d 222. Furthermore, "[t]o invoke collateral estoppel the issues sought to be litigated in the new proceeding must be identical to those considered in the prior proceeding. . Both issue and claim preclusion express no more than the fundamental principle that once a matter has been fully and fairly litigated, and finally decided, it comes to rest." (Citations omitted; internal quotation marks omitted.) Mazziotti v. Allstate Ins. Co. , 240 Conn. 799, 812-13, 695 A.2d 1010 (1997). If a party cannot succeed on a claim of collateral estoppel, though, it may be able to preclude claims on the basis of res judicata. "[T]he doctrine of res judicata, or claim preclusion, [provides that] a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action [between the same parties or those in privity with them] on the same claim. A judgment is final not only as to every matter which was offered to sustain the claim, but also as to any other admissible matter which might have been offered for that purpose . The rule of claim preclusion prevents reassertion of the same claim regardless of what additional or different evidence or legal theories might be advanced in support of it." (Citations omitted; emphasis in original; internal quotation marks omitted.) Fink v. Golenbock , supra, 238 Conn. at 191, 680 A.2d 1243. In order for res judicata to apply, "four elements must be met: (1) the judgment must have been rendered on the merits by a court of competent jurisdiction; (2) the parties to the prior and subsequent actions must be the same or in privity; (3) there must have been an adequate opportunity to litigate the matter fully; and (4) the same underlying claim must be at issue." Wheeler v. Beachcroft, LLC , supra, 320 Conn. at 156-57, 129 A.3d 677. "We have adopted a transactional test as a guide to determining whether an action involves the same claim as an earlier action so as to trigger operation of the doctrine of res judicata. [T]he claim [that is] extinguished [by the judgment in the first action] includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose. What factual grouping constitutes a transaction, and what groupings constitutes a series, are to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage. . In applying the transactional test, we compare the complaint in the second action with the pleadings and the judgment in the earlier action." (Citations omitted; internal quotation marks omitted.) Fink v. Golenbock , supra, 238 Conn. at 191-92, 680 A.2d 1243. A reviewing court has the authority to determine whether the transactional test is satisfied by comparing the factual underpinnings of the claims to determine if they are sufficiently similar. Id., at 197, 680 A.2d 1243 ; see also Orselet v. DeMatteo , 206 Conn. 542, 546, 539 A.2d 95 (1988). Although related, the doctrines of res judicata and collateral estoppel are not identical. Our Supreme Court has explained the difference between these two related preclusion doctrines in this manner: "Although the doctrines of collateral estoppel and res judicata are conceptually related, in practice their application may yield distinct results. Unlike collateral estoppel, under which preclusion occurs only if a claim actually has been litigated, [u]nder the doctrine of res judicata, or claim preclusion, a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action on the same claim . [or any claim based on the same operative facts that] might have been made . [T]he appropriate inquiry with respect to [claim] preclusion is whether the party had an adequate opportunity to litigate the matter in the earlier proceeding ." (Emphasis in original; internal quotation marks omitted.) Connecticut National Bank v. Rytman , 241 Conn. 24, 43-44, 694 A.2d 1246 (1997). Having set forth the general applicable law of collateral estoppel and res judicata, we next address the legal principles pertaining to the specific arguments raised on appeal regarding these two preclusion doctrines. 1 Fraud In his appeal from the court's granting of Rizzo's motion for summary judgment, Girolametti argues, inter alia, that his claims could not be barred against Rizzo because Rizzo fraudulently procured the arbitration award. Additionally, Girolametti argues in each of the other six appeals that the court's denials of the defendants' motions for summary judgment were appropriate because the fraud committed by the defendants precluded their use of collateral estoppel and/or res judicata. Accordingly, we turn now to a discussion of fraud as it relates to those two preclusion doctrines. Implicit in the determination that a prior judgment has been validly rendered is the notion that it was not procured by fraud or collusion, as new litigation will not be barred if the former judgment was procured through such means. See Weiss v. Weiss , 297 Conn. 446, 470, 998 A.2d 766 (2010) ("Res judicata does not apply to judgments obtained through fraud or collusion. . A party may not, however, circumvent the doctrine by merely alleging fraud." [Citation omitted; emphasis in original.] ); Powell v. Infinity Ins. Co. , 282 Conn. 594, 600, 922 A.2d 1073 (2007) ( "[t]he doctrine of res judicata holds that an existing final judgment rendered upon the merits without fraud or collusion . is conclusive of causes of action and of facts or issues thereby litigated as to the parties . in all other actions" [emphasis added; internal quotation marks omitted] ). Additionally, "unless a defendant had fraudulently concealed the relevant facts, the discovery of additional facts following . judgment does not block the application of res judicata . [when the] facts and events themselves arose prior to the filing of the original complaint [and] it was only [the plaintiff's] awareness of these facts that came later." (Internal quotation marks omitted.) C & H Management, LLC v. Shelton , 140 Conn.App. 608, 619, 59 A.3d 851 (2013). A party that seeks to vacate an arbitration award must do so within the statutorily mandated thirty days, even if the party asserts fraud as a basis for the vacation. Wu v. Chang , 264 Conn. 307, 312-13, 823 A.2d 1197 (2003). "[ General Statutes §] 52-420 (b) requires that a motion to vacate an arbitration award be filed within thirty days of the notice of the award to the moving party. If the motion is not filed within the thirty day time limit, the trial court does not have subject matter jurisdiction over the motion." (Internal quotation marks omitted.) Id., at 312, 823 A.2d 1197. "The statutory framework governing the arbitration process expressly covers claims of fraud. Specifically, General Statutes § 52-418 (a) requires the court to make an order vacating [an arbitration] award if it finds . [that] the award has been procured by corruption, fraud , or undue means . Under § 52-420 (b), however, a party seeking an order to vacate an arbitration award on grounds of corruption, fraud or undue means-or on any other ground set forth in § 52-418-must do so within the thirty day limitation period set forth in § 52-420 (b). In other words, once the thirty day limitation period of § 52-420 (b) has passed, the award may not thereafter be attacked on any of the grounds specified in . § 52-418... including fraud." (Citation omitted; emphasis in original; internal quotation marks omitted.) Id., at 313, 823 A.2d 1197. 2 Privity In six of these appeals, the court denied the defendant's motion for summary judgment on the ground that the moving party, the subcontractor or sub-subcontractor, lacked privity with Rizzo. For that reason, we briefly discuss the contours of the concept of privity. Our Supreme Court has opined: "Privity is a difficult concept to define precisely. . There is no prevailing definition of privity to be followed automatically in every case. It is not a matter of form or rigid labels; rather it is a matter of substance. In determining whether privity exists, we employ an analysis that focuses on the functional relationships of the parties. Privity is not established by the mere fact that persons may be interested in the same question or in proving or disproving the same set of facts. Rather it is, in essence, a shorthand statement for the principle that collateral estoppel should be applied only when there exists such an identification in interest of one person with another as to represent the same legal rights so as to justify preclusion." (Citation omitted.) Mazziotti v. Allstate Ins. Co. , supra, 240 Conn. at 813-14, 695 A.2d 1010. Our Supreme Court has further stated: "While it is commonly recognized that privity is difficult to define, the concept exists to ensure that the interests of the party against whom collateral estoppel [or res judicata] is being asserted have been adequately represented because of his purported privity with a party at the initial proceeding. . A key consideration in determining the existence of privity is the sharing of the same legal right by the parties allegedly in privity." (Internal quotation marks omitted.) Ventres v. Goodspeed Airport , LLC , 301 Conn. 194, 206-207, 21 A.3d 709 (2011). a Mutuality In the six appeals brought by the subcontractors and sub-subcontractors, Girolametti argues that the court was correct in holding that collateral estoppel does not apply on privity grounds because each defendant was not a party to the arbitration and, therefore, lacked mutuality with Girolametti. Accordingly, we discuss the concept of mutuality, which is related to the notion of privity. "Historically, the mutuality of parties rule meant that parties who were not actually adverse to one another in a prior proceeding could not assert collateral estoppel against one another in a subsequent action." Aetna Casualty & Surety Co. v. Jones , 220 Conn. 285, 300, 596 A.2d 414 (1991). That doctrine, however, is no longer followed in Connecticut. Our Supreme Court held in Jones , an appeal dealing with the issue of collateral estoppel: "We . join those jurisdictions that have concluded that the mutuality of parties rule is unsound. To allow a party who has fully and fairly litigated an issue at a prior trial to avoid the force of a ruling against him simply because he later finds himself faced by a different opponent is inappropriate and unnecessary. First, the mutuality of parties rule systematically diminishes the stability of judgments. . The rule allows a single party to present antithetic claims on identical issues in separate actions and to obtain favorable decisions in both solely because his opponent has changed. Additionally, increasingly important notions of judicial economy are served by the abandonment of the doctrine of mutuality. . In light of the scarcity of judicial time and resources, the repeated litigation of issues that have already been conclusively resolved by a court carries a considerable price tag in both money and time. Finally, we perceive no sound reason . to adhere to the doctrine of mutuality." (Citations omitted.) Id., at 302, 596 A.2d 414. In short, the teaching in more recent developments in the law of collateral estoppel, as it relates to the identity of parties or similarity of interests, is that so long as the party to the original suit had a full and fair opportunity to litigate the issue and the issue was finally and necessarily decided by the court, or an arbitrator, the party against whom that issue was initially decided may not relitigate the same issue against a third party in a subsequent action. See id. b Defensive Collateral Estoppel In all six of the appeals by the subcontractors and sub-subcontractors, the defendants argue that the court erred in denying their motions for summary judgment because each defendant was asserting collateral estoppel defensively, and, therefore, privity with Rizzo was not required. Accordingly, we turn now to a discussion of the defensive use of collateral estoppel. Indeed, a party asserting the defense of collateral estoppel need not establish privity. As a panel of this court has previously noted: "Collateral estoppel may be invoked against a party to a prior adverse proceeding or against those in privity with that party." (Internal quotation marks omitted.) Young v. Metropolitan Property & Casualty Ins. Co. , 60 Conn.App. 107, 114, 758 A.2d 452, cert. denied, 255 Conn. 906, 762 A.2d 912 (2000). "[Collateral estoppel] may be invoked offensively, in support of a party's affirmative claim against his opponent, or defensively, in opposition to his opponent's affirmative claim against him. . [Defensive collateral estoppel] occurs when a defendant in a second action seeks to prevent a plaintiff from relitigating an issue that the plaintiff had previously litigated in another action against the same defendant or a different party. . It is well established that privity is not required in the context of the defensive use of collateral estoppel ." (Citation omitted; internal quotation marks omitted.) Marques v. Allstate Ins. Co. , 140 Conn.App. 335, 340-41, 58 A.3d 393 (2013). II APPEALS Having reviewed the factual and procedural history of these appeals and the legal principles that govern them, we turn now to our consideration of each appeal. A AC 38208 Rizzo In AC 38208, Girolametti appeals from the decision granting Rizzo's motion for summary judgment in which Rizzo alleged that Girolametti's claims against it regarding the defective joists on the second floor of the building were barred by collateral estoppel and/or res judicata. The court granted Rizzo's motion on the basis of res judicata. Girolametti claims on appeal that the court erred in granting Rizzo's motion for summary judgment. Specifically, Girolametti argues that res judicata does not apply to his defective joists claim for two reasons: (1) it does not relate to the contract claims brought in the arbitration and, therefore, was not fully and fairly litigated; and (2) Rizzo's fraudulent concealment of the defective joists bars the application of res judicata. Additionally, Girolametti claims that the court erred in interpreting his fraudulent concealment claim as an untimely attempt to vacate the arbitration award. He further claims that the court erred in not finding that, as a result of Rizzo's fraudulent concealment of the defect, his defective joists claim did not accrue until March, 2013, pursuant to General Statutes § 52-595. Lastly, Girolametti claims that Rizzo waived its right to arbitrate the defective joists claim because Rizzo did not submit the issue to the arbitrator and it did not notify Girolametti of the defects. Rizzo argues that the court properly held that Girolametti's claims against it were barred by the doctrine of res judicata because the claims Girolametti now asserts either were raised, or could have been raised, in the arbitration. We agree with Rizzo. In the case underlying this appeal, Girolametti brought an eleven count amended complaint, dated August 7, 2014, against Horton, Rizzo, Quaraglia, Lindade, and Test-Con. The counts brought directly against Rizzo claimed the following: (1) that Rizzo was guilty of an intentional breach of duty and fraudulently concealed a cause of action; (2) that Rizzo tortiously interfered with Girolametti's business expectations; and (3) that Rizzo had committed a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. At the heart of Girolametti's claims was his assertion that the steel joists designed, fabricated, and installed to support the building's second floor were defectively designed and did not conform to design specifications. Additionally, Girolametti alleged that although Rizzo had learned by November, 2010, of this defect, and that it required remediation, Rizzo had fraudulently kept this information from Girolametti. In response, Rizzo filed a motion for summary judgment in which it asserted that all of Girolametti's claims against it were barred as a matter of law by the doctrines of collateral estoppel and/or res judicata because the issues and claims made by Girolametti in the litigation previously had been resolved in binding arbitration. In response, Girolametti alleged that his specific claim of the defective joists design had not been litigated in the arbitration. Girolametti asserted, as well, that his claim that Rizzo had obtained the arbitration award by fraudulent conduct raised genuine issues of material fact which, if proven favorably to the plaintiff, would make inapplicable the preclusion doctrines of res judicata and collateral estoppel. Both parties submitted documentation to the court in connection with the motion for summary judgment, and the matter was thoroughly briefed by each party. By memorandum of decision dated May 5, 2015, the court, Agati, J. , granted Rizzo's motion for summary judgment on the grounds that the claims made by Girolametti in the litigation were barred by the doctrine of res judicata and that Girolametti's fraud claim was controlled by the time limiting factors set forth in the statutory scheme related to the vacation of arbitration awards. In its assessment of Rizzo's claim of res judicata, the court applied the transactional test to assess the availability of a res judicata defense to the claims now being made in litigation, and, in doing so, the court concluded that the claims presently made by Girolametti in litigation involved the same claims that either were advanced or could have been advanced by Girolametti in arbitration. Additionally, as to Girolametti's claim that res judicata should not bar the present action because the arbitration award had been procured by fraud, the court pointed to the conclusion of our Supreme Court in Wu v. Chang , supra, 264 Conn. at 307, 823 A.2d 1197, as discussed in Bloomfield v. United Electrical, Radio & Machine Workers of America, Connecticut Independent Police Union, Local 14 , 285 Conn. 278, 939 A.2d 561 (2008), that claims of fraud do not toll the running of the statutory time period for filing an application to vacate an arbitration award. This appeal followed. Our review of the arbitration award supports the court's conclusion that Girolametti had a full and fair opportunity to present his claims against Rizzo concerning the building project. We agree, as well, with the court's thorough analysis of the doctrine of res judicata and its applicability to the facts at hand by use of the transactional test. Finally, we agree with the court's assessment that the application of the statutory scheme regarding the vacation of arbitration awards to claims of fraud was a correct application of the law. Accordingly, we conclude that the court did not err in granting Rizzo's motion for summary judgment. B AC 38095 Horton In AC 38095, the defendant Horton appeals from the denial of its motion for summary judgment in which it alleged that Girolametti's claims against it were all barred by collateral estoppel and/or res judicata. The court denied Horton's motion on the basis that Horton was not in privity with Rizzo and, therefore, could not avail itself of the arbitration decision, to which it was not a party. On appeal, Horton argues that the court erred in denying its motion for summary judgment because Girolametti's claims against it are barred by the doctrines of res judicata and/or collateral estoppel. We agree with Horton that the court erred in not concluding that the claims against it by Girolametti were barred by res judicata. In the case underlying this appeal, Girolametti asserted three claims against Horton, a subcontractor to Rizzo on the project. In his eleven count, fourth amended complaint dated August 7, 2014, Girolametti alleged that Horton: (1) was negligent in the performance of design and engineering services for the project; (2) made negligent misrepresentations regarding the engineering and construction of the project on documentation submitted to the city of Danbury and project participants and during the arbitration process; and (3) intentionally made these misrepresentations to the same parties and in the same contexts. In response, Horton filed its answer and interposed several special defenses, including, inter alia, that Girolametti's claims should be barred by the doctrines of collateral estoppel and/or res judicata and that Girolametti's claims were time barred. Horton filed a motion for summary judgment based upon each of these arguments. In response, Girolametti filed an objection to Horton's motion. After the issues were briefed and argued, the court, Agati, J. , by notice dated May 13, 2015, denied Horton's motion. The court, in its memorandum of decision, states in part: "[Horton] argues that it should prevail on the theory of collateral estoppel because the arbitration decision that adjudicated the issues between [Girolametti] and . Rizzo precludes [Girolametti] from litigating against [Horton] because [it] was in privity with Rizzo." Following its discussion of the facts, the court concluded: "The court concludes that [Horton] is not in privity with Rizzo, and therefore, issues of fact exist rendering the granting of summary judgment inappropriate." After receiving this decision, Horton filed a motion to reargue, claiming, inter alia, that the court had failed to address its claim of res judicata. In this motion, Horton argued that it was entitled to summary judgment on this alternative ground. The court denied Horton's motion to reargue on June 16, 2015, and this appeal followed. On appeal, Horton claims that the court incorrectly held that it needed to be in privity with Rizzo for it to benefit from the preclusive effect of the doctrine of collateral estoppel and that the court failed to reach its alternative claim that the plaintiff should be barred from this litigation by application of the doctrine of res judicata. We agree with Horton. At the outset, and as noted in our general legal discussion, set forth previously, privity is not a requirement for the defensive use of collateral estoppel. Marques v. Allstate Ins. Co. , supra, 140 Conn. App. at 340-41, 58 A.3d 393. That is, if an issue already has been decided adversely to a current litigation party in previous litigation, that party is barred from reasserting that issue against any other party, regardless of whether the other party is in privity with a party to the prior litigation. Id. The rationale for this rule is that once an issue has been fully and fairly litigated by a party, if the resolution of that issue was necessary to the ruling against him in the prior litigation, notions of fairness and judicial economy serve to prevent the party from once again attempting to litigate that issue. Id., at 339-40, 58 A.3d 393. In the case at hand, however, we agree with the trial court that summary judgment on the basis of collateral estoppel was not warranted, not for reasons related to a lack of privity, but because the record does not disclose that the design and construction defect issue raised by Girolametti in this action was fully and fairly litigated in the arbitration, much less that its resolution adverse to Girolametti was necessary to the arbitration award. From our review of the record, it is clear that the arbitrator found for Rizzo, in part, because Girolametti defaulted in his proof. As previously noted, in making his award, the arbitrator noted: "[Girolametti] made a conscious and informed decision to no longer attend the scheduled [American Arbitration Association] hearings and intentionally refused to present any evidence or expert witnesses to explain or otherwise justify any alleged damages. The only conclusion that can be drawn from this decision is that either [Girolametti] did not incur any damages due to [Rizzo's] construction of the project, or [Girolametti] was unable to prove any of the damages [he] alleged in [his] prehearing brief." From this recitation, we cannot conclude that the issue asserted by Girolametti in this litigation as to the design and construction of the PEB was specifically decided by the arbitrator at all, much less that its determination was necessary to the ultimate award. We conclude, however, that the court incorrectly denied Horton's motion for reconsideration, in which Horton requested that summary judgment be granted on the ground of res judicata. As noted previously, a proper application of the doctrine of res judicata requires that the claim made in the present action be the same as one the claimant made in a prior action or one that the claimant had an adequate opportunity to make in the prior action. Wheeler v. Beachcroft, LLC , supra, 320 Conn. at 156-57, 129 A.3d 677. The record provides ample uncontestable evidence that Girolametti claimed, in the arbitration, that the PEB had not been designed and engineered properly by Rizzo with regard to the loading capacity of the second floor. The record equally is clear that Girolametti was informed by Marnicki during the arbitration process that further examination and testing would be required to assess the adequacy of the design engineering and construction for the building's anticipated use. Girolametti, however, chose not to adduce evidence in support of this claim. Contrary to the trial court's conclusion, we find privity in the relationship between Horton and Rizzo. As noted, Rizzo subcontracted with Horton to provide structural engineering services in conjunction with the PEB. To whatever extent Horton may have failed to meet its obligation to Rizzo resulting in any design or engineering defects in the project, these claims implicated Rizzo's overarching obligations to Girolametti under the contract. Rizzo and Horton shared the same legal rights, binding them in privity for purposes of the project. Ventres v. Goodspeed Airport, LLC , supra, 310 Conn. at 207, 21 A.3d 709. In short, Girolametti's present claims against Horton are simply a restatement of claims Girolametti either did make or had the full and fair opportunity to make against Rizzo in the arbitration. Applying the transactional test, we conclude that the subject of Girolametti's claim against Horton in the present litigation relates directly to the subject of the arbitration, and thus, that the claim asserted herein is the same as one that Girolametti either did assert or could have asserted in the arbitration. On that basis, summary judgment should have been granted on the ground of res judicata. C AC 38093 Lindade In AC 38093, the defendant Lindade appeals from the denial of its motion for summary judgment, in which it alleged that Girolametti's claims against it were all barred by collateral estoppel and/or res judicata. The court denied Lindade's motion on the basis that Lindade was not in privity with Rizzo and, therefore, could not avail itself of the arbitration decision, to which it was not a party. On appeal, Lindade argues that the court erred in denying its motion for summary judgment because Girolametti's claims against it are barred by the doctrines of res judicata and collateral estoppel. We agree with Lindade that the court erred in not concluding that the claims against it by Girolametti were barred by res judicata. In the case underlying this appeal, Girolametti asserted a negligence claim against Lindade, a subcontractor to Rizzo on the project, in the eleven count, fourth amended complaint dated August 7, 2014. Girolametti claimed, in essence, that Lindade negligently failed to ensure that construction standards and state laws were followed concerning the project by its crew and its sub-subcontractor, Quaraglia. Girolametti alleged, as well, that Lindade performed work without proper design or municipal approvals, failed to construct portions of the building in conformity with the design and construction requirements of the Connecticut Building Code and industry standards, negligently constructed certain portions of the project, and failed to deliver its warranty to the plaintiff, and failed to inform Girolametti of the project's many deficiencies in design and construction of which it had knowledge. Girolametti claimed that, as a result of Lindade's alleged negligence, it had suffered damages because portions of the building had been designed and built in a deficient manner and remained unremedied when remediation could have been accomplished by entities other than the plaintiff. In response, following its answer and assertion of special defenses, on November 3, 2014, Lindade moved for summary judgment on the basis of res judicata and/or collateral estoppel. Following briefing and oral argument, the court, Agati, J. , denied Lindade's motion by order dated May 13, 2015. In its order the court stated: "The court concludes that [Lindade] is not in a privity position so as to avail itself of the arbitration decision adjudicating the issues between [Girolametti] and Rizzo, and therefore, issues of fact exist rendering the granting of summary judgment inappropriate." Thereafter, Lindade filed a motion to reargue in which it argued that privity is not required for the defensive use of collateral estoppel and that the court had misapplied the law of privity as it relates to the doctrine of res judicata. By judicial notice, the court denied the defendant's motion to reargue. This appeal followed. Although we agree with Lindade's assertion that in accordance with our decisional law a party asserting collateral estoppel as a defense need not demonstrate privity, we conclude that collateral estoppel is not available to Lindade in these particular circumstances. Here, we cannot conclude from the record that a substantive decision on the merits of the issues raised by Girolametti's design and construction claims was necessary to the arbitration award in favor of Rizzo because of the arbitrator's conclusion that Girolametti, in essence, had defaulted in proving his claims by abandoning the arbitration. We conclude, however, that the court incorrectly denied Lindade's motion for summary judgment on the basis of res judicata because Girolametti had a full and fair opportunity to assert, in the arbitration against Rizzo, all of the claims it now makes against Lindade. Contrary to the court's conclusion, we conclude that Lindade was in privity with Rizzo with regard to the claims later asserted against Lindade, and we conclude that those claims meet the transactional test as well. In essence, every claim presently asserted by Girolametti against Lindade could have been made against Rizzo in the arbitration because Lindade, as a subcontractor to Rizzo, undertook to perform certain services for the project that were the overarching responsibility of Rizzo pursuant to Rizzo's contract with Girolametti. The record reveals that on December 26, 2007, Rizzo and Lindade entered into a contract that made reference to the contract between Rizzo and Girolametti and contained the following pertinent provisions: "[A]ll documents comprising the prime contract are on file in [Rizzo's] office, and [Lindade] represents it has had the sufficient opportunity to read and examine the prime contract and that it has read and examined it and fully and completely understands it." It further provides: "[Rizzo] desires to subcontract certain work specified in the contract documents and described herein, and [Lindade] desires to perform this work at the prices and upon the terms and conditions set forth herein." The subcontract between Rizzo and Lindade also provides: "[Lindade] assumes toward [Rizzo] all obligations, risks, and responsibilities for the work, which [Rizzo] assumes toward [Girolametti] in the contract documents, and should be bound to [Rizzo] in the same manner and to the same extent [that Rizzo] is bound to [Girolametti] by the contract documents." Finally, the agreement provides that Lindade would be responsible to pay Rizzo any sums that Rizzo became obligated to pay Girolametti for any damages incurred due to Lindade's failure to fulfill its obligations adequately under the subcontract. On the basis of this record, it is clear that Lindade is in privity with Rizzo with respect to the claims presently made by Girolametti against Lindade. To afford Girolametti this opportunity to assert claims directly against Lindade that he had the full and fair opportunity to litigate in arbitration against Rizzo would defeat the core purpose of res judicata regarding the finality of judgments and the degree of closure necessary to an efficient and just dispute resolution system. All the requirements for the application of the doctrine of res judicata are met, and, therefore, summary judgment should have been granted on that basis. D AC 38094 Quaraglia In AC 38094, the defendant Quaraglia appeals from the denial of its motion for summary judgment, in which it alleged that Girolametti's claims against it were all barred by collateral estoppel and/or res judicata. The court denied Quaraglia's motion on the basis that Quaraglia was not in privity with Rizzo and, therefore, could not avail itself of the arbitration decision, to which it was not a party. On appeal, Quaraglia argues that the court erred in denying its motion for summary judgment because Girolametti's claims against it are barred by the doctrines of res judicata and/or collateral estoppel. We agree with Quaraglia that the court erred in not concluding that the claims against it by Girolametti were barred by res judicata. In the case underlying this appeal, Girolametti asserted a negligence claim against Quaraglia, a subcontractor to Lindade and sub-subcontractor to Rizzo on the project, in the eleven count, fourth amended complaint dated August 7, 2014. In essence, Girolametti alleged that Quaraglia had performed engineering services for the project in which it knew or should have known that Girolametti would rely on it to act properly and professionally and in compliance with applicable law, codes, and Girolametti's programmatic requirements. Girolametti alleged that Quaraglia negligently failed to meet its responsibilities by: not coordinating its work and communicating with others; not filing required documentation with Girolametti, his agents, or the city; not adequately performing site observations or assuring that engineering standards and applicable legal requirements were being met; preparing inadequate designs for the cold-formed steel stud framing dormers and canopy; and failing to certify that aspects of the project were not code compliant. Included in Girolametti's allegations was his assertion that Quaraglia owed it a duty to act reasonably, independent of any contractual undertakings with Lindade, Rizzo or other defendants. Girolametti alleged that as a consequence of Quaraglia's negligence, it had suffered damages because portions of the project were designed and constructed in a deficient manner and not remediated when they could have been by parties other than Girolametti. In response to this complaint, Quaraglia filed an answer and special defenses in which it alleged, inter alia, that Girolametti's claims were barred by the doctrines of collateral estoppel and/or res judicata. Thereafter, Quaraglia filed a motion for summary judgment in which it reasserted those claims. By order dated May 13, 2015, the court, Agati, J. , denied the motion. In its order, the court stated the following: "[Quaraglia] argues that it should prevail on the theory of collateral estoppel because the arbitration decision that adjudicated the issues between [Girolametti] and [Rizzo] precludes [Girolametti] from litigating against [Quaraglia] because [it] was in privity with Rizzo." Following its legal analysis, the court concluded: "The court concludes that [Quaraglia] is not in privity with Rizzo, and therefore, issues of fact exist rendering the granting of summary judgment inappropriate." Thereafter, on June 1, 2015, Quaraglia filed a motion to reargue in which it alleged, inter alia, that the court had misapplied the law regarding collateral estoppel and that the court had failed, entirely, to address the res judicata basis for its motion for summary judgment. By order dated June 16, 2015, the court denied Quaraglia's motion to reargue. This appeal followed. The record reflects that Lindade, a subcontractor to Rizzo, retained Quaraglia as a sub-subcontractor for the project. The agreement between Lindade and Quaraglia provided for Quaraglia to "design and detail the infill stud wall and canopy roof located along the [building's] south wall." The agreement further specified that Quaraglia would "perform analyses, design and prepare shop drawings of the light gauge metal studs for load bearing exterior curtain wall framing and canopy roof, for the above mentioned project, as indicated on the architectural and structural drawings. The work [limit] is defined on the architectural drawings A-102 south wall (Front wall elevation only, along the coordinate line D), and related drawings." Finally, and relevant to our assessment of the issues on appeal, the agreement provided that "a structural engineer licensed in the state of Connecticut will sign and seal the computations and shop drawings" and that "computations and shop drawings will comply with . local building codes." On the basis of this scope of work, Quaraglia claims that it was entitled to summary judgment because the issues raised against Quaraglia in this action already were decided adversely to Girolametti in the arbitration and that, even if the precise issues now asserted by Girolametti were not raised in the arbitration, Girolametti had a full and fair opportunity to litigate these issues in its arbitration with Rizzo, with whom Quaraglia claims to be in privity. We assess first Quaraglia's collateral estoppel claim. The record reflects that in the prior litigation, Quaraglia's performance was, indeed, the subject of testimony and claims during the arbitration hearings. On August 23, 2010, Marnicki testified to his concerns regarding the structural integrity of the canopy roof and the front wall of the PEB system, which he indicated had been Quaraglia's responsibility. He further testified on August 25, 2010, that as part of his review of the project and his perception of its inadequacies he reviewed a drawing from Quaraglia which, Marnicki indicated, had provided signed and sealed structural drawings for the steel stud wall design of the PEB. Marnicki then expressed his concerns that Quaraglia had utilized the wrong drawings in arriving at its design calculations for the front wall of the building. In short, it is a fair reading of Marnicki's testimony that he criticized the work of Quaraglia on the basis that Quaraglia had utilized drawings that Marnicki had prepared for a different building design and not the PEB that Girolametti and Rizzo ultimately had agreed to build and, as a consequence, the construction of the building in the area of Quaraglia's responsibility was defective. On the basis of this testimony and additional detail as reflected in the record of the arbitration hearings, it is apparent that the issues now asserted by Girolametti against Quaraglia specifically were addressed in arbitration. Additionally, as noted, for purposes of collateral estoppel, if the issues presently claimed by Girolametti in regard to Quaraglia's work on the project were raised and decided in the arbitration, and if such a decision was necessary to the arbitral award, it is not significant that Quaraglia was not party to the arbitration. As noted in our general discussion of the law, Connecticut has abandoned the mutuality rule, with the result that one who was not a party to prior litigation in which an issue was raised and necessarily decided may, nevertheless, prevent relitigation of that issue. Aetna Casualty & Surety Co. v. Jones , supra, 220 Conn. at 302, 596 A.2d 414. Additionally, as previously noted, one seeking to make defensive use of collateral estoppel need not establish privity in order to successfully preclude further litigation of an issue. Marques v. Allstate Ins. Co. , supra, 140 Conn.App. at 341, 58 A.3d 393. The impediment to Quaraglia's assertion of collateral estoppel, however, lies in the language of the arbitration award from which we cannot conclude that resolution of the issues specifically related to Quaraglia's performance was necessary to the award in favor of Rizzo. Rather, as we have noted, the arbitrator found against Girolametti on the basis of Girolametti's default of the arbitration process. Accordingly, we agree with the trial court that Girolametti's claims against Quaraglia were not barred by collateral estoppel. Summary judgment, nevertheless, is appropriate on the basis of res judicata if Girolametti had a full and fair opportunity in the arbitration to litigate the claims it presently makes against Quaraglia. Wheeler v. Beachcroft, LLC , supra, 320 Conn. at 156-57, 129 A.3d 677. Contrary to the court's conclusion, the record in this instance supports Quaraglia's claim of privity. As noted, Girolametti and Rizzo had a master contract for the project which contemplated that Rizzo would be bound by its subcontractors' work. Lindade, in turn, as a subcontractor to Rizzo, was obligated to Rizzo for the reasonable fulfillment of its subcontractual duties in connection with the project. So, too, by operation of basic contract law, Quaraglia was liable to Rizzo for the faithful completion of its responsibilities to the project as outlined in the Quaraglia-Lindade engagement letter. As our Supreme Court determined in Mazziotti v. Allstate Ins. Co. supra, 240 Conn. 799, 695 A.2d 1010, and, as previously noted in this opinion, in order to assess whether privity exists, the court's task is to focus on the functional relationship between the parties and privity should be found where "there exists such an identification in interest of one person with another as to represent the same legal rights so as to justify preclusion." Id., at 814, 695 A.2d 1010. As the record reflects, in the arbitration between Girolametti and Rizzo, Girolametti adduced evidence of Quaraglia's alleged failures in meeting its responsibilities on the project as part of its effort to recover damages from Rizzo because, if Quaraglia had been found wanting in its performance, Girolametti would have been able to recover attendant damages directly from Rizzo under the terms of the master contract. In short, for purposes of the application of res judicata, Rizzo and Quaraglia were in privity. Finally, in regard to Quaraglia's res judicata claim, it is plain from the record that Girolametti had an ample opportunity to present and did present evidence regarding Quaraglia's alleged failures of performance at the arbitration proceeding. And, to the extent Girolametti did not present evidence of all of his claims against Quaraglia, the record of the arbitration demonstrates that Girolametti was prevented from doing so only by his decision to abandon the arbitration process. Girolametti should be prevented by res judicata from now asserting the same claims directly against Quaraglia that it did or could have asserted against Rizzo in the arbitration. All the requirements for the application of the doctrine of res judicata are met, and, therefore, summary judgment should have been granted on that basis. E AC 38097 Test-Con In AC 38097, the defendant Test-Con appeals from the denial of its motion for summary judgment, in which it alleged that Girolametti's claims against it were all barred by collateral estoppel. The court denied Test-Con's motion on the basis that Test-Con was not in privity with Rizzo and, therefore, could not avail itself of the arbitration decision, to which it was not a party. On appeal, Test-Con argues that the court erred in denying its motion for summary judgment because Girolametti's claims against it are barred by the doctrine of collateral estoppel. Specifically, Test-Con argues that privity is not required for the defensive use of collateral estoppel. We agree with Test-Con that the court erred in denying its motion for summary judgment on the basis of Test-Con's lack of privity with Rizzo. We conclude that further proceedings are required. In the case underlying this appeal, Girolametti directed three counts against Test-Con in his eleven count, fourth amended complaint dated August 7, 2014, alleging negligence, breach of contract, and negligent misrepresentation. As noted in the factual background of this opinion, Girolametti directly hired Test-Con to perform construction material inspection and testing services related to the project while it was underway. Accordingly, Test-Con, unlike all the other defendant subcontractors and sub-subcontractors, was not in any chain of responsibility relating to Rizzo's obligations under its general contract with Girolametti. In short, its obligations regarding the project were solely to Girolametti. In his negligence claim against Test-Con, Girolametti alleged, generally, that Test-Con negligently performed its task of testing, observing, and reporting with respect to the construction of the project. More specifically, Girolametti alleged that Test-Con failed to comply with applicable codes as well as Girolametti's programmatic requirements, and failed to report to Girolametti the various discrepancies in the construction and design of the building, particularly as it related to the second floor, and to steel fabrications, masonry, and the front wall of the foundation. Girolametti claimed, as well, that Test-Con submitted an inaccurate and misleading final report concerning the adequacy of the project's construction and design characteristics. In his breach of contract count against Test-Con, Girolametti essentially repeated his negligence allegations, adding that, as a result of Test-Con's breach of contract, Girolametti had suffered damages on the basis that the building was deficiently constructed and that, as a result of Test-Con's failure to test adequately and to report accurately, Girolametti was misled into not rejecting work that should have been remediated by others and into not making warrantees and other claims for deficient construction. In his negligent misrepresentation count against Test-Con, Girolametti alleged that Test-Con knowingly made false representations about the design and construction of the project to Girolametti, the city of Danbury, and other project participants. Girolametti further alleged that it relied on these representations and suffered monetary harm. After filing responsive pleadings, Test-Con filed a motion for summary judgment on the basis of collateral estoppel. In sum, Test-Con alleged in its motion that Girolametti should be precluded from asserting against Test-Con in this action claims that had been made and decided in the arbitration between Girolametti and Rizzo. By identical written orders dated May 13, 2015, the court denied Test-Con's motion for summary judgment, issuing one order for each of the two underlying cases in which Girolametti asserted claims against Test-Con. In its orders, the court stated: "The court concludes that [Test-Con] is not in a privity position so as to avail itself of the arbitration decision adjudicating the issues between [Girolametti] and Rizzo, and therefore, issues of fact exist rendering the granting of summary judgment inappropriate." On May 29, 2015, Test-Con filed a motion to reargue and reconsider in which it alleged, inter alia, that in its decision, the court had failed to recognize that proof of privity is not required for the defensive use of collateral estoppel. Subsequently, by order dated June 16, 2015, the court denied the defendant's motion to reargue and reconsider. This appeal followed. At the outset, we note that Test-Con did not have a contractual relationship with Rizzo or with any of Rizzo's subcontractors or sub-subcontractors. Rather, Test-Con was retained directly by Girolametti for work on the project. For this reason alone, Test-Con could not assert the defense of res judicata because, in the arbitration with Rizzo, Girolametti only could make claims against Rizzo for which Rizzo could be held accountable either directly by its own contract or by reason of its responsibility for the performance of its subcontractors and sub-subcontractors. In short, the record reveals no basis on which Girolametti could have made any claim in the arbitration against Rizzo for the alleged misfeasance or malfeasance of Test-Con. It is likely in recognition of this fact that Test-Con did not move for summary judgment on the basis of res judicata. In regard to collateral estoppel, however, as Test-Con pointed out in the trial court and in its brief to this court, privity is not required for the defensive application of collateral estoppel if the outcome was necessary to the prior litigation, which, in this case, was the arbitration. The reasoning is apparent. Once an issue has been fully and fairly decided, the party against whom the issue was decided should not be permitted to relitigate the same issue against any party in subsequent litigation. Thus, to the extent that the trial court denied Test-Con's motion on the basis of a lack of privity, we disagree with the court's reasoning. The record is not adequate for us to determine whether the specific claims Girolametti has asserted against Test-Con in the present action were decided, in their entirety, in the arbitration award. In coming to this conclusion, we are not persuaded by Test-Con's claim that since the arbitrator decided that the building met all applicable building codes and was given a certificate of occupancy, the arbitrator, by implication, determined that no construction design or engineering defects existed with respect to the project, as we believe this could be an overbroad interpretation of the award. We cannot conclude, on the basis of this record, that Test-Con is correct as a matter of law. As noted, the issues in arbitration were those between Girolametti and Rizzo and Rizzo's several subcontractors and sub-subcontractors. It is not clear to us that in making his award, the arbitrator necessarily determined the issues between Test-Con and Girolametti. We believe, therefore, that the parties should be given the opportunity to further develop a factual record, and to argue the issue of collateral estoppel before the trial court, without having to concern themselves with the issue of privity, which appears to be the basis on which the court denied the motion. Accordingly, we conclude that the trial court erred in denying Test-Con's motion for summary judgment on the basis of privity, and that further proceedings are warranted for the court to make a determination concerning collateral estoppel on its merits. F AC 38099 Munger In AC 38099, defendant Munger appeals from the denial of its motion for summary judgment, in which it alleged, inter alia, that Girolametti's claims against it were all barred by collateral estoppel and/or res judicata. The court denied Munger's motion on the basis that Munger was not in privity with Rizzo and, therefore, could not avail itself of the arbitration decision, to which it was not a party. On appeal, Munger argues, inter alia, that the court erred in denying its motion for summary judgment because Girolametti's claims against it are barred by the doctrines of res judicata and/or collateral estoppel. We agree with Munger that the court erred in not concluding that the claims against it by Girolametti were barred by res judicata. In the case underlying this appeal, Girolametti asserted, in his multicount July 16, 2014 third amended complaint, direct claims against Munger, including negligence and negligent misrepresentation. Girolametti also included Munger, along with VP, BlueScope, and Oakeson, in his direct claims of: (1) intentional breach of duty and fraudulent concealment of a cause of action; (2) tortious interference with business expectations; and (3) violation of CUTPA. In the negligence count, Girolametti asserted, inter alia, that Munger negligently failed to comply with local and state codes and regulations, as well as Girolametti's programmatic requirements. Specifically, he contended that Munger failed to: perform site observations properly; prepare and file construction drawings and documentation properly; ensure a proper design and construction for the second floor concrete slab; notify Girolametti that the second floor slab was deficient in its load carrying capacity; and notify Girolametti of the deficiencies of the second floor joists and decking. In his negligent misrepresentation claim against Munger, Girolametti essentially mirrored the allegations in the negligence count and added assertions that Munger negligently made representations that it knew to be false about the engineering and construction of the project to the city of Danbury and project participants. Girolametti asserted that it was harmed by these representations because the deficiencies of the project's design and construction were not remediated when they could have been. Munger, on November 3, 2014, filed a supplemental motion for summary judgment and supporting memorandum of law asserting that Girolametti's claims against it were all barred by the doctrines of collateral estoppel and/or res judicata as well as time-barred by the applicable statute of limitations. Additionally, Munger asserted that Girolametti's defense of fraudulent concealment was invalid. The court, Agati, J. , denied Munger's motion by written notice on May 13, 2015. As to Munger's collateral estoppel and res judicata arguments, the court stated: "The court concludes that [Munger] is not in privity with Rizzo, and, therefore, issues of fact exist rendering the granting of summary judgment inappropriate." Munger filed, on June 1, 2015, a motion for reconsideration and reargument in which it argued that privity is not required for the defensive use of collateral estoppel and that the court had misapplied the law of privity as it relates to the doctrine of res judicata. The court denied Munger's motion by judicial notice on June 16, 2015. This appeal followed. In regard to Munger's collateral estoppel claim, although we agree that privity is not required for the defensive use of collateral estoppel, we cannot conclude that this doctrine bars Girolametti's claims against Munger. We come to that determination because the record makes it plain that with scheduled hearing dates remaining, Girolametti chose to cease participating in the arbitration process. In commenting on Girolametti's decision to abandon the process, the arbitrator concluded only, as we have noted, that either Girolametti "did not incur any damages due to [Rizzo's] construction of the project, or . was unable to prove any of the damages [Girolametti] alleged in [his] prehearing brief." The arbitrator further observed, with specific reference to any structural issues, that an inspection of the building by the city of Danbury revealed that the building complied with all requirements for a certificate of occupancy. Thus, the arbitrator concluded that Girolametti was not entitled to any damages or credits for structural issues. As a consequence of the arbitrator's observations concerning Girolametti's abandonment of the arbitration process, we are not able to conclude that the arbitrator's conclusions regarding the structural soundness of the building were necessary to the portion of his award in which no damages were awarded to Girolametti. In short, on the basis of on this record, the absence of any award to Girolametti for claimed damages could have resulted simply from Girolametti's default, without a decision on the merits. For this reason, we agree with the trial court that collateral estoppel does not preclude Girolametti's claims in this appeal. Girolametti's claims are barred, however, by res judicata. Contrary to the trial court's conclusion, we find privity in the relationship between Munger and Rizzo. To the extent that Girolametti had been successful in proving any structural or engineering inadequacies of the PEB, which Munger supplied, Rizzo would have been liable to Girolametti under the terms of their contract. Thus, Rizzo and Munger shared the same legal rights, binding them in privity for purposes of the project. See Ventres v. Goodspeed Airport, LLC , supra, 301 Conn. at 207, 21 A.3d 709. Additionally, the record demonstrates that Girolametti had a full and fair opportunity to litigate in the arbitration any claims regarding the inadequacy of the building's second floor loading capacity. Indeed, the record reflects that during the arbitration, Marnicki provided Girolametti with information regarding his concerns about the lack of design and inspection by VP, Munger's sub-subcontractor, of the second floor joists and slab. Applying the transactional test, we conclude that the subject of Girolametti's claim against Munger in the present litigation relates directly to the subject of the arbitration and, thus, the claim asserted herein is the same claim that Girolametti either did or could have asserted in the arbitration. Under those circumstances, Girolametti's claim that he did not have a full and fair opportunity to litigate his claim regarding structural issues falls short. Here, all the requirements for the application of the doctrine of res judicata are met, and, therefore, summary judgment should have been granted on that basis. G AC 38098 BlueScope and Oakeson In AC 38098, defendants BlueScope and Oakeson appeal from the denial of their motion for summary judgment, in which they alleged that Girolametti's claims against them were all barred by collateral estoppel and/or res judicata. The court denied BlueScope and Oakeson's motion on the basis that they were not in privity with Rizzo and, therefore, could not avail themselves of the arbitration decision, to which they were not parties. On appeal, BlueScope and Oakeson argue that the court erred in denying their motion for summary judgment because Girolametti's claims against them are barred by the doctrines of res judicata and/or collateral estoppel. We agree with BlueScope and Oakeson that the court erred in not concluding that the claims against them by Girolametti were barred by res judicata. In the case underlying this appeal, Girolametti asserted, in his multicount, July 16, 2014 third amended complaint, direct claims against VP, BlueScope, and Oakeson. In one count, Girolametti asserted that VP, a sub-subcontractor to Rizzo on the project, had performed negligently in the preparation of construction drawings without due regard to Girolametti's design and engineering parameters, particularly after learning the building's specific joist loading requirements; failed to ensure proper building design, particularly as to the second floor concrete slab; failed to conduct necessary site observations; failed to file requisite documentation with relevant parties; and failed, in various ways, to conduct oversight and coordination of the project. In a separate count, Girolametti asserted that VP negligently made misrepresentations regarding the construction and engineering of the project building to the city of Danbury and project participants. Girolametti also asserted direct negligence and negligent misrepresentation count against BlueScope, and in his count regarding negligent misrepresentation, Girolametti characterized BlueScope as a "successor, parent company, or an otherwise affiliated company with the defendant, VP." In the main, Girolametti's allegations against BlueScope mirrored the claims it asserted against VP. The same reasonably can be said with regard to Girolametti's direct allegations of negligence and negligent misrepresentation against Oakeson, except that claims against Oakeson alleged his failures in the performance of his duties as a registered and licensed professional engineer with regard to the design and engineering of the building and his representations in that regard to interested parties. Girolametti also included VP, BlueScope, and Oakeson, along with Munger, in its direct claims of: (1) intentional breach of duty and fraudulent concealment of a cause of action; (2) tortious interference with business expectations; and (3) violation of CUTPA. In response to Girolametti's claims, BlueScope and Oakeson, on September 29, 2014, filed a joint motion for summary judgment, asserting, inter alia, that the plaintiff's claims were barred by the doctrines of res judicata and/or collateral estoppel. In support of their preclusion defenses, these defendants attached documentary evidence that Marnicki had opined, during the arbitration, that he had many concerns with the building, including that the second floor could not support certain point loads and that the PEB design did not conform to the parameters prescribed by Horton. BlueScope and Oakeson argued, in their memorandum of law in support of their motion, that since the arbitrator had determined that Rizzo had met the building code requirements of the city of Danbury, the issue of the building's second floor loading capacity actually had been determined in arbitration. In response, Girolametti argued, inter alia, that the "issue of the negligent design, fabrication, and certification of the defective second floor joists" was not raised during the arbitration. By order dated May 13, 2015, the court, Agati, J. , denied the motion for summary judgment filed by BlueScope and Oakeson. The court stated: "The court concludes that the[se] defendants are not in privity with Rizzo, and therefore, issues of fact exist rendering the granting of summary judgment inappropriate." This appeal followed. Our analysis of the defendants' claims of res judicata and collateral estoppel parallels our analysis regarding Horton's appeal, set forth in AC 38095. Although we agree with the defendants that the issue of the loading capacity of the second floor of the building was litigated in arbitration and that, in that litigation, Girolametti presented evidence related to the joists undergirding the second floor, and that the arbitrator opined that Girolametti had failed to prove that the building suffered from engineering or design defects, for purposes of collateral estoppel, we are not able to confirm that the arbitrator's conclusion regarding the building's design and engineering integrity was necessary to his award. We come to that determination because of the unique circumstances of this arbitration. Here, the record makes it plain that with scheduled hearing dates remaining, Girolametti chose to cease participating in the process. In commenting on Girolametti's decision to abandon the arbitration process, the arbitrator concluded, only, that either Girolametti "did not incur any damages due to [Rizzo's] construction of the project, or . was unable to prove any of the damages [Girolametti] alleged in [his] prehearing brief." The arbitrator further observed, without specific reference to any structural issues, that an inspection of the building by the city of Danbury revealed that the building complied with all requirements for a certificate of occupancy. Thus, the arbitrator concluded that Girolametti was not entitled to any damages or credits for structural issues. As a consequence of the arbitrator's observations concerning Girolametti's abandonment of the arbitration process, we are not able to conclude that the arbitrator's conclusions regarding the structural soundness of the building were necessary to the portion of his award in which no damages were awarded to Girolametti. In short, on the basis of this record, that outcome could have resulted simply from Girolametti's default without a decision on the merits. For this reason, we agree that collateral estoppel does not preclude Girolametti's claims in this appeal. On the other hand, Girolametti's claims are barred by res judicata. Contrary to the trial court's conclusion, we find privity in the relationship among BlueScope and Oakeson and Munger and, in turn, between Munger and Rizzo. Indeed, during the arbitration, substantial evidence was adduced by Girolametti against Rizzo of the claimed inadequacy of the PEB purchased for the project by Munger from BlueScope. To the extent that Girolametti had been successful in proving any structural or engineering inadequacies of the PEB, and not-withstanding any attendant failure of performance by Munger or BlueScope, Rizzo would have been liable to Girolametti on the basis of the terms of their contract. Thus, Rizzo, Munger, and BlueScope shared a community of interest in the enterprise, which is a hallmark of any privity analysis. Ventres v. Goodspeed Airport, LLC , supra, 301 Conn. at 207, 21 A.3d 709 ("[a] key consideration in determining the existence of privity is the sharing of the same legal right by the parties allegedly in privity" [internal quotation marks omitted] ). Finally, the record demonstrates that Girolametti had a full and fair opportunity to litigate any claims regarding the inadequacy of the building's second floor loading capacity. The record discloses even that the city of Danbury suggested to him that he retain an engineer to closely examine the project. Although Girolametti did not hire the engineer as suggested, the city of Danbury did in order to provide an independent review of the project. Shortly thereafter, as the arbitration was proceeding, Marnicki, the city's engineer, and the city's building official toured the project to review items on a report put together by Marnicki. Under those circumstances, Girolametti's claim that he did not have a full and fair opportunity to litigate his claim regarding structural issues falls short. Here, all the requirements for the application of the doctrine of res judicata are met, and, therefore, summary judgment should have been granted on that basis. III SUMMARY In AC 38208, the judgment in favor of Rizzo is affirmed. In AC 38095, the judgment is reversed and the case is remanded with direction to render summary judgment in favor of Horton on the basis of res judicata. In AC 38093, the judgment is reversed and the case is remanded with direction to render summary judgment in favor of Lindade on the basis of res judicata. In AC 38094, the judgment is reversed and the case is remanded with direction to render summary judgment in favor of Quaraglia on the basis of res judicata. In AC 38097, the judgment is reversed and the case is remanded to the trial court for a hearing on Test-Con's motion for summary judgment for that court to determine whether the claims advanced by Girolametti against Test-Con were, in fact, resolved in the arbitration proceeding, and, if so, whether their resolution was necessary to the arbitration award. In AC 38099, the judgment is reversed and the case is remanded with direction to render summary judgment in favor of Munger on the basis of res judicata. In AC 38098, the judgment is reversed and the case is remanded with direction to render summary judgment in favor of BlueScope and Oakeson on the basis of res judicata. In this opinion the other judges concurred. In AC 38098, there are two defendants that filed a combined motion for summary judgment: BlueScope Buildings North America, Inc. (BlueScope) and Steven Oakeson. Therefore, while there are eight defendants, there are only seven appeals. In addition, for the purposes of this summary, we will count the defendant Test-Con, Inc., as among the subcontractors. As will be discussed in this opinion, however, Test-Con, Inc., contracted with the plaintiffs directly. In AC 38208, Girolametti appeals from the decision granting summary judgment in favor of defendant general contractor Rizzo. In AC 38093, the defendant subcontractor Lindade Corporation appeals from the denial of its motion for summary judgment. In AC 38094, the defendant sub-subcontractor Domenic Quaraglia Engineering, Inc., appeals from the denial of its motion for summary judgment. In AC 38095, the defendant subcontractor Michael Horton Associates, Inc., appeals from the denial of its motion for summary judgment. In AC 38097, the defendant Test-Con, Inc., appeals from the denial of its motion for summary judgment. In AC 38098, the defendant sub-subcontractor BlueScope and its employee, Oakeson, appeal from the denial of their motion for summary judgment. In AC 38099, the defendant subcontractor Pat Munger Construction Company, Inc., appeals from the denial of its motion for summary judgment. In his brief, Girolametti also claims that the court erroneously barred his warranty transfer claim in which he argues that Rizzo failed to comply with its obligations to deliver third-party warranties. At oral argument before this court, however, the plaintiff's counsel acknowledged that Girolametti did in fact receive the warranties from third parties in March, 2013, during discovery while the cases were pending in trial court. Accordingly this claim is moot and we need not address it further. Girolametti brought direct claims against VP in both of the cases underlying these appeals, but VP is not a party to any of these appeals. In the report, Marnicki noted that the building calculations had been completed and that "[a] complete set of building calculations are needed to see if all applied loads were accounted for." Marnicki further noted on November 30, 2009, that he did not have any information from VP regarding the support details of the structure, and whether it could "support units within stress and deflection limits" and asked Girolametti to supply that information. Further, Marnicki noted: "The VP [drawings] make reference that the end floor joist shop [drawing] needs to be followed. The joist shop [drawings] are not in the box nor did I see [them] in the building [department] file at the time of my visit. The VP [drawing] BJ-1 has no [information] as to floor joist size or bridging. This information is needed to construct the building and to check the installation against." Finally, as to this Marnicki communication, he notes: "Final VP [second] floor joist [drawings] BJ-2 lists joist strut forces adding up to 130,000 [pounds]. There still has not been shown a structural design of the [second] floor slab that both supports the design gravity loads and acts as a diaphragm to transfer to shown seismic loads. This needs to be provided ASAP to show that the building can support all lateral loads. The 130,000 [pounds] of seismic loads are transferred [through] the VP building frames to the first floor and need to be collected by the first floor as designed by Horton." The Marnicki report contained several other notations regarding the building's design and the need for specific information regarding its load carrying capacity. The award provides that interest would be due at the rate of "5 percent per day, or $69.67 per day," though it seems clear that this was a scrivener's error, and based on his calculations, the arbitrator intended to write 5 percent per annum. (Emphasis added.) Horton also brought into the litigation as apportionment defendants Larrabee and Aschettino Associates LLC, neither of which are parties to these appeals. Additionally, Horton filed a second apportionment complaint in which it brought the city of Danbury into the litigation as an apportionment defendant. The city is not a party to these appeals. Pending before the trial court is an action that Girolametti brought directly against Larrabee, Aschettino, Commercial Metals Company, and Brady Broom. Also pending before the trial court is an action that Girolametti brought directly against the city of Danbury and two of its employees, Leo Null and Edward Shullery. Although these two cases have been consolidated with the actions against Test-Con, Horton, and VP, they are not a part of these appeals. Rizzo also argues, as an alternative ground for affirmance, that Girolametti waived the claims it now asserts against Rizzo because John Girolametti, Jr., chose not to participate further in the arbitration hearing. Because we affirm the court's determination on the basis of res judicata, we need not address this claim. See footnote 4 of this opinion. Lindade previously had filed a motion for summary judgment and memorandum of law in support of its motion on February 28, 2014, in response to Girolametti's third amended complaint. Subsequently, Girolametti filed its fourth amended complaint, and, on November 3, 2014, Lindade filed a supplement to its motion for summary judgment moving the court for summary judgment on that new complaint. In its supplement, Lindade incorporated by reference its February 28, 2014 motion and memorandum of law. Girolametti also brought a separate action against Test-Con in which he alleged also claims of negligence, breach of contract, and negligent misrepresentation. The matters were later consolidated. In its motion, Test-Con moved for summary judgment on all counts against it by Girolametti in both civil actions. See footnote 10 of this opinion. The court denied the motion in separate, yet identical, decisions. Test-Con appealed both decisions. Because the claims against Test-Con are the same in each of the underlying cases, Test-Con's arguments for summary judgment are the same for each underlying case, and the court's decisions are identical, we will address the two denials together. Munger also argues that the court erred in denying its motion for summary judgment because Girolametti's claims against it are all barred by the applicable statute of limitations. Because we reverse the trial court's judgment on the basis of res judicata, we need not address this claim. Munger previously had filed a motion for summary judgment and memorandum of law in support of its motion on April 25, 2014, in response to Girolametti's second amended complaint in this matter. Subsequently, Girolametti filed its third amended complaint, and, on November 3, 2014, Munger filed a supplement to its motion for summary judgment moving the court for summary judgment on that third amended complaint. The record reflects that, at the time of the project, VP was a PEB manufacturer. At some point not evident from the record, VP merged with BlueScope with the result that VP became a division of BlueScope. Thus, we treat BlueScope as the corporate entity at interest in this appeal. BlueScope, as the umbrella organization, sells PEBs. Pursuant to the terms of its agreement with Rizzo, Munger ordered a PEB from BlueScope while Oakeson was a BlueScope employee. As a professional engineer licensed in the state of Connecticut, Oakeson signed and sealed the final erection drawings for the PEB that had been engineered, fabricated and delivered in an unassembled condition to the project site. In our discussion we do not separately analyze the posture of Oakeson because, as an employee of BlueScope, his liability, if any, would parallel that of his employer for purposes of claims made by Girolametti.

12490089

Luther E. THURLOW, et. al. v. Lee Ann HULTEN, et. al. Lee Ann Hulten, et. al. v. Luther E. Thurlow, et. al.

Thurlow v. Hulten

2017-06-06

AC 37568

858

879

164 A.3d 858

164

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-09-08T21:16:17.237805+00:00

Fastcase

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

Luther E. THURLOW, et. al. v. Lee Ann HULTEN, et. al.

Luther E. THURLOW, et. al. v. Lee Ann HULTEN, et. al. Lee Ann Hulten, et. al. v. Luther E. Thurlow, et. al. AC 37568 Appellate Court of Connecticut. Argued March 21, 2017 Officially released June 6, 2017 Richard S. Cody, with whom, on the brief, was Jon B. Chase, for the appellants-appellees (plaintiffs in the first case, defendants in the second case). Michael S. Bonnano, for the appellees-appellants (defendants in the first case, plaintiffs in the second case). DiPentima, C.J., and Sheldon and Blue, Js.

11398

66565

PER CURIAM. This appeal and cross appeal arise out of two actions brought to the trial court, which were consolidated for trial, stemming from a property dispute between adjoining landowners in Canterbury. In the first action, Luther E. Thurlow, Anthony Denning, and Steven Pelletier (Thurlow parties), claimed that Lee Ann Hulten and Linda K. Dieters (Hulten parties), had interfered with their right to access their landlocked property via easements over the Hulten parties' property, comprised of two separate parcels, lot A and lot B. The Thurlow parties claimed an express easement over lot A and an easement by necessity or an easement by implication over lot B. The Thurlow parties claimed that they had sustained damages as a result of the actions of the Hulten parties in restricting their use of the easements. In the second action, the Hulten parties claimed that the Thurlow parties had been trespassing on their property and sought to quiet title to the disputed property. The Hulten parties denied the existence of any easement over their property, but claimed that, even if an easement existed, it was limited to lot A. They thus sought to enjoin the Thurlow parties from using the claimed easement over lot B. The Hulten parties also sought to quiet title as to the size and boundaries of lot B and to recover damages for the unauthorized cutting and removal of timber from land they claimed to be part of lot B. The trial court found that the Thurlow parties had an express easement over a path off of Gooseneck Hill Road that ran through the Hulten parties' property, lot A. It rejected the Thurlow parties' claim that they had an easement by necessity or by implication running from the northern border of lot A across lot B, to its northern border with the Thurlow parties' landlocked property, and it denied the Thurlow parties' request for an injunction preventing the Hulten parties from blocking access to the claimed easement. The court further determined that to the extent that the Hulten parties have blocked the Thurlow parties from accessing the easement, the Thurlow parties failed to establish that they had suffered any harm. The Thurlow parties filed this appeal from the judgment of the trial court, and the Hulten parties filed a cross appeal. In their appeal, the Thurlow parties claim that the trial court erred in finding that they did not have an easement by necessity or by implication over lot B; that the court erred in failing to enjoin the Hulten parties from blocking their use of the express easement over lot A; and that the court erred in precluding them from submitting evidence in support of their claim that they had suffered damages when the Hulten parties blocked them from accessing firewood on their property. In their cross appeal, the Hulten parties claim that the trial court incorrectly determined the boundaries of lot B. Having examined the record on appeal and considered the briefs and the arguments of the parties, we conclude that the judgment of the trial court should be affirmed. Because the court's memorandum of decision fully addresses the arguments raised in the present appeals, we adopt its thorough and well reasoned decision as a proper statement of the facts and the applicable law on these issues. See Thurlow v. Hulten , 173 Conn.App. at 698, 164 A.3d 858 (2014) (appendix). It would serve no useful purpose for this court to repeat the analysis contained in the trial court's decisions. See Riley v. Pierson , 126 Conn.App. 486, 492, 12 A.3d 581 (2011). The judgment is affirmed. APPENDIX Luther E. Thurlow et al. v. Lee Ann Hulten et al. Superior Court, Complex Litigation Docket at Hartford File No. X04-CV-05-4059315-S Lee Ann Hulten et al. v. Luther E. Thurlow et al. Superior Court, Complex Litigation Docket at Hartford File No. X04-CV-09-4050303-S Memorandum filed October 15, 2014 Proceedings Memorandum of decision in action in first case, inter alia, to quiet title, and, in second case, for, inter alia, declaratory judgment. Judgment in part for the plaintiffs in the first case, defendants in the second case, and in part for the defendants in the first case, plaintiffs in the second case . Richard S. Cody and Jon B. Chase , for the plaintiffs in the first case, defendants in the second case. Michael S. Bonnano , for the defendants in the first case, plaintiffs in the second case. Opinion BRIGHT, J. I INTRODUCTION This case arises out of a property dispute between adjoining landowners in Canterbury. The plaintiffs in the 2005 action, Luther E. Thurlow, Anthony Denning and Steven Pelletier ("Thurlow Parties"), claim that the defendants in that action, Lee Ann Hulten and Linda K. Dieters ("Hulten Parties"), have interfered with the Thurlow Parties' rights to access their lots from Gooseneck Hill Road via an easement over the Hulten Parties' property. The Hulten Parties deny that the Thurlow parties have such an easement. In the 2009 action, the Hulten Parties claim that the Thurlow Parties have been trespassing on their property because the Thurlow Parties have misidentified the boundaries of one of their lots that abuts the Hulten Parties' property. The Thurlow Parties dispute this claim. Thus, the Hulten Parties have asked the court to resolve this boundary dispute by ruling on their quiet title action in the 2009 action. The specific claims asserted by the parties are as follows. In the 2005 action, the First Count of the Thurlow Parties' Amended Substituted Complaint dated September 17, 2013, seeks to quiet title in their alleged easement over the Hulten Parties' property. The Fourth Count seeks an injunction prohibiting the Hulten Parties from obstructing the easement. In the Fifth Count, the Thurlow Parties claim that the Hulten Parties have trespassed on their easement. The Sixth Count claims that the Hulten Parties have negligently breached a duty they owed to the plaintiffs by not allowing them to haul wood they cut on their property over the easement. The Seventh Count alleges that this same conduct constitutes a conversion of the Thurlow Parties' cut wood. The Eighth Count alleges that the Hulten Parties have tortiously interfered with Denning's business relations by not letting him remove the cut wood. Finally, the Ninth Count alleges that the Hulten Parties have tortiously interfered with the Thurlow Parties' contractual relationship with the parties that sold them the lot, which is supposed to benefit from the alleged easement. The Hulten Parties have denied the existence of an easement. They also dispute the Thurlow Parties' claimed scope of any such easement. In the 2009 action, in Count One of the Third Amended Complaint dated May 19, 2011, the Hulten Parties seek a declaratory judgment that the easement claimed in the 2005 action, if proven to exist, is limited to only a portion of the Hulten Parties' property, described as Lot A. They allege that the easement does not extend over what they identify as Lot B. In Count Two, the Hulten Parties seek an injunction prohibiting the Thurlow Parties from using the alleged easement on Lot B. In Count Three, the Hulten Parties seek to quiet title as to the size and boundaries of Lot B. Count Four seeks damages for the Thurlow Parties' unauthorized cutting and removal of timber from what the Hulten Parties believe is their Lot B. In response, the Thurlow Parties have asserted counterclaims in the 2009 action claiming an easement by necessity and/or an easement by implication over Lot B. They also dispute the Hulten Parties' claims as to the boundaries of Lot B. The court severed the parties' claims for damages and instead went forward with a trial on the primary questions that underlie all of the claims. First, do the Thurlow Parties have an easement over the property of the Hulten Parties? Second, if so, what is the scope and precise location of the easement? Third, what are the proper boundaries of the Hulten Parties' Lot B? Resolution of these questions would necessarily resolve a number of the counts of the parties' complaints and counterclaims and could resolve all of the claims asserted. The trial proceeded before the court over three days. The court heard from a number of witnesses, including Denning, Hulten, Raymond Hulten (Hulten's husband), John Dieters (Dieters' husband), Alexander Osiper (an abutting landowner), Kristen Estabrooks (Thurlow Parties' title searcher), Bruce Woodis (Thurlow Parties' expert land surveyor), and Gerald Stefon (Hulten Parties' expert land surveyor). The court also received hundreds of exhibits, including deeds and maps relating not just to the lots at issue but to several abutting properties. Some of these records date back to the 1700s. Following trial, the parties submitted posttrial briefs, supplemental briefs and reply briefs. The court also conducted two site visits, one before trial and one after all of the briefs had been filed. II FINDINGS OF FACT Based on all of the evidence submitted, the court makes the following findings of fact. The court first addresses the facts as they relate to the Thurlow Parties' claim of an easement from Gooseneck Hill Road to reach their property. The Thurlow Parties are owners of a lot, approximately 9.33 acres in size, located west of Route 169, north of Gooseneck Hill Road, west of Lisbon Road and south of Phinney Lane in the town of Canterbury. Exhibit 1. The parties have referred to this lot as the Rainsford Lot, or Lot 21. Id. The property is bordered on the east by property owned by Donald Minski. It is bordered on the north (Lot 20), south (Lot 30), and east (Lot 31) by other lots owned by the Thurlow Parties. The parties agree that exhibit 1 accurately sets forth the dimensions of Lot 21. The Thurlow Parties acquired their rights in Lot 21 from Leonard Montesi, Steven Marien and Kenneth Thomas in two deeds on April 10, 2003. A warranty deed conveyed title to Lot 21 as set forth in schedule A to the deed. Exhibit 77. That deed made no mention of an easement or right-of-way over any other property, even though it is undisputed that Lot 21 is landlocked and does not have direct access onto a public road or highway. A second quitclaim deed conveyed to the Thurlow Parties any interest the grantors had not only in the property itself but also to a "second tract or right of way as deeded to Frank Tillinghast by Mrs. George Bromley Adm. of Estate of Joseph Farnum and is described as follows;-A right of way from my house across two lots and through wood; and following the path thence to what is called the Rainsford Wood lot, for the purpose of going to and from said lot, cut and cart wood and timber standing on said lot and occupying said lot, always putting up bars on said lot." Exhibit 78. The right-of-way language incorporated in exhibit 78 does in fact quote from a deed from Mrs. George Bromley on December 24, 1903, purporting to grant a right-of-way from her house to the Rainsford Lot for the purposes set forth in exhibit 78. Exhibit 70. At the time of this grant, Mrs. Bromley, as administratrix for the estate of Joseph Farnum, owned property abutting Gooseneck Hill Road that is now owned by the Hulten Parties and is described by them as Lot A. Exhibit 159 accurately sets forth the boundaries and dimensions of the property owned by Mrs. Bromley at the time she granted the right-of-way to the Rainsford lot in 1903 and of Lot A as owned by the Hulten Parties today. That lot is identified on exhibit 159 as "Property of Lee Ann Hulten & Linda K. Dieters 2nd Tract." Exhibit 159. It is undisputed that Bromley did not own either Lot B or Lot 30, whether as described by the Thurlow Parties (exhibits 2 and 144E) or by the Hulten Parties (exhibit 159, fourth tract). Furthermore, there is no evidence that the owners of the property between Bromley's property and the Rainsford Lot (Lot 21) ever gave Bromley or her predecessor in title a right-of-way to cross their property to reach Lot 21. Consequently, Bromley could not grant in exhibit 70 an express right-of-way over land that she did not own. For this same reason, the Thurlow Parties could not acquire an express right-of-way across Lot B, even as they define it, when they acquired Lot 21 because neither the grantors of that lot, nor their predecessors in interest, had ever received an expressed right-of-way beyond what is now described as Lot A. For the above reasons, the court finds that the Thurlow Parties have an expressed right-of-way across Lot A (the second tract on exhibit 159) to access Lot 21 provided that they have some other rights to cross Lot B and Lot 30 to get to Lot 21. The Thurlow Parties argue that they have either an easement by implication or an easement by necessity to cross Lot B. In particular, the Thurlow Parties argue that there is evidence of a well-worn path that travels from Gooseneck Hill Road, through Lots A and B, Lot 30 and onto Lot 21. In fact, the parties have stipulated that the path shown on an aerial photograph (exhibit 13A) in 1934 running from Gooseneck Hill Road, through the Hulten Parties' property and Lot 30, to Lot 21 has been in existence continually from 1934 until the present. Furthermore, the court credits the Thurlow Parties' expert's testimony that that path, also identified on exhibit 144E, is most likely the right-of-way described in the deed from Mrs. Bromley to Tillinghast in 1903. The court further finds that this path represents the location of the right-of-way, to the northern border of Lot A, as opposed to the more westerly path depicted on Lot A (second tract) on exhibit 159. There is no evidence, though, that any owner of Lot 21, prior to the Thurlow Parties, ever used the path to access Lot 21. Hulten testified that during her fifty-four years living on Lot A and Lot B, she has walked the path, but only up to the border of what the Thurlow Parties claim is the southern boundary of Lot 30. Exhibit 2. The court received no evidence of anyone other than the owners of Lot B using the path as it exists on that lot. The Thurlow Parties suggest that because the path has been traveled uninterrupted from Gooseneck Hill Road to Lot 21 for decades, the court should infer that the various owners of the lots between those two points always intended that the owners of Lot 21 would have an easement over the entire path to and from Gooseneck Hill Road. Other than the existence of the path itself, there is no evidence to support this suggestion. No witness testified to such use and no documents prove it. The only possible evidence of such intended use was the February 11, 1918 deed from Stephen Finn to Michael and James Shea that created Lot 30. Exhibit 29. After describing the property to be conveyed, the deed describes the grant of "the right of way to and from said land as the path now runs." Id. At the time of this grant, Finn also owned Lot B. Thus, the right-of-way included in exhibit 29 could be read as granting the right to use the path heading south toward Gooseneck Hill Road. The problem with such an interpretation is that Finn did not own Lot A, and therefore could not grant a right-of-way to continue on the path to the road. He did, however, own the land abutting Lot 30 to the south, including Lot B, and running all the way east to Route 169. The evidence established that there is a path that runs easterly over the land owned by Finn in 1918 out to Route 169. The evidence further showed that there is a path that runs from the lower part of what the Thurlow Parties claim is Lot 30, briefly over a neighbor's (Osiper) property onto the land formerly owned by Finn and connecting with the path that runs to Route 169. Exhibit 2. In addition, one could travel from the bottom of Lot 30, as claimed by the Thurlow Parties, unto Lot B and travel east to access the path to Route 169. Based on all of the above, the court concludes that the more reasonable interpretation of the right-of-way in the deed from Finn to Shea is that it expresses a right-of-way from Lot 30, easterly to Route 169. This is the same conclusion reached by the Thurlow Parties' expert, Woodis. On his map designating his conclusions as to the proper boundaries of Lot 30, Woodis set forth his interpretation of the right-of-way language in exhibit 29. After quoting the right-of-way language from the deed, Woodis concluded that "the existing path from Lot # 30 to Route # 169 substantially fits this description and is in fair condition." Exhibit 2, n.5. For these reasons, the court finds that exhibit 29 does not express an intent to create an easement from Lot 30 south over Lot B toward Gooseneck Hill Road. Denning did testify about the path to Route 169 and his attempted use of the path. In addition, the court walked part of the path. Denning testified that the path was difficult to travel and that he damaged his truck while trying to traverse it. In addition, when the court walked the path in June of this year, it noticed a number of areas where the path was either wet or swampy. Furthermore, Osiper, the landowner immediately north of the path, described a swampy area along the path where it bordered his property. These facts are somewhat at odds with Woodis' overall description of the path as being in fair condition. In addition, the court heard no evidence regarding the condition of the path when Finn created the right-of-way in 1918. Furthermore, the court was presented with no evidence as to whether the portions of the path that were wet or swampy could be maintained or improved to make the path more suitable for its intended use. Consequently, the evidence that part of the path to Route 169 is currently wet or difficult to pass does not undermine this court's conclusion, based on the entire record, that it is the right-of-way Finn intended to create in 1918. In connection with the Thurlow Parties' easement by necessity claim, the court also heard evidence regarding access to Lot 21 from Phinney Lane to the north. Denning admitted using a path that runs from Lot 21 north to Phinney Lane to remove timber he cut from Lot 21 and the surrounding lots owned by the Thurlow Parties. He testified, though, that it was less convenient than going south to Gooseneck Hill Road. He also claimed that a temporary bridge had to be built to allow passage to Phinney Lane, and other temporary structures that required permits had to be built to cross wetlands. By contrast, John Dieters testified that he walked from Lot 21 north to Phinney Lane in the spring of 2013 and took pictures of the condition of the path. He testified that the path was well traveled and, at approximately twenty feet wide, was wide enough for a truck or tractor. His pictures confirmed his testimony. Exhibit 153C. The court reached the same conclusion when it walked the path to Phinney Lane in June of this year. In fact, the condition of the path to Phinney Lane was at least as good for travel, if not better, than the path to Gooseneck Hill Road. Unlike the path that leads to Route 169, the path to Phinney Lane was nowhere wet or swampy. Nor was there any indication of water having retreated from the property recently. There was simply no indication whatsoever that the path could not be used to haul timber from Lot 21. For these reasons, the court finds the path from Lot 21 to Phinney Road to be an acceptable alternative route for the Thurlow Parties to access Lot 21. The court now turns to the facts relating to the Hulten Parties' claims relating to the boundaries of Lot B. The Hulten Parties acquired what they refer to as Lot B from Margaret Davignon on December 30, 1992, by a quitclaim deed. Exhibit 65. The deed actually conveyed five separately described tracts. The Fourth Tract is what the Hulten Parties refer to as Lot B. It is described as: "Bounded northerly by land, now or formerly of Shea Brothers and land now or formerly of Andrew Lutzyk; Easterly by land now or formerly of E. LaVerne Kilpatrick at a stone wall on the easterly side of this 25 acre lot; southerly by land formerly of Ira Smart and land formerly of Kuzzyk and Olenik; Westerly by land now or formerly of Rose Salpietro; This described tract contains about twenty-five (25) acres of land." Id. This description has remained unchanged in the chain of title for Lot B since the property was first conveyed by E. LaVerne Kilpatrick in 1928 to Kuzzyk and Olenik from Kilpatrick's larger parcel that he had acquired from Stephen Finn and which extended to Route 169. Exhibit 59A. The history of the entire parcel that Finn first acquired and then conveyed to the Shea brothers and Kilpatrick is at the heart of the parties' boundary dispute. On November 12, 1889, Simeon Vinton and Nathan White conveyed a large parcel, known as the Ensworth Farm, to Finn. Exhibit 34. The deed conveying the parcel included a detailed description that set forth a mathematical calculation of the property. The parties agree that the property conveyed to Finn is accurately set forth in the blue area of the compilation plan prepared by Stefon and entered into evidence as exhibit 94. The total area of the parcel was 147 acres and 127 rods. On February 11, 1918, Finn conveyed a portion of the Ensworth Farm, in particular what the parties call Lot 30, to Michael and James Shea. Unfortunately, Finn did not describe his grant to the Shea brothers with the same precision as Vinton and White used in conveying the property to Finn. Finn described the grant as: "One certain tract of land being a wood lot with all cut wood and timber thereon. Situated in the Town of Canterbury on the West side of the highway leading from Nathan Newton's residence to the residence of Henry Baldwin. Said lot is located about one half mile from said highway. Bounded as follows-viz: North, by the lands of George Tillinghast and Nathan Newton. West by the lands of Mary E. Sawyer and Nathan Newton. South by land of Mary E. Sawyer. East by land of Stephen Finn: Containing about Twenty acres be the same more or less: With the right of way to and from said land as the path now runs." Exhibit 29. The deed was not recorded until over ten years later on July 7, 1928. Id. The parties and their experts all agree that this deed is ambiguous. First, although Finn called out the eastern boundary of the wooded lot as his property, he did not say how far into his property the conveyed lot went. Because Finn did not identify his property as being on the western boundary of the conveyed lot, one can reasonably infer that the eastern boundary of the grant was on the most westerly side of what Finn received from Vinton and White. From that point, Finn's property, though, extended easterly for dozens of acres to Route 169. Exhibit 29 fails to specify how far east into his land he intended the conveyed property to extend. Second, no matter where one tries to set the grant from Finn to Shea, it is not possible to get all of the abutter calls to match. Both experts tried to do so and were unsuccessful. Third, while the deed estimated the amount of property it intended to convey, it made clear by the use of "more or less" that the acreage grant was not intended to be precise. Furthermore, if one attempts to limit the Shea grant to twenty acres, as Stefon does, it leads to inaccuracies in acreage calls in deeds for abutting properties, including Lot B. The deed, though, does give some indication of the intentions of Finn and Shea through the use of the phrase "wood lot." The court credits Woodis' testimony that this phrase shows an intention to convey an area of land enclosed by some monuments or visible boundaries. Woodis and his team conducted field work to determine if any such monuments existed. What they found were stone walls and stone piles that created the boundaries of a lot that matches the Thurlow Parties' claim as to the boundary of Lot 30. Exhibit 2. There were no stone walls, stone piles or other monuments within the boundaries identified by Woodis that indicated an intention by Finn and Shea to confine the wood lot to a smaller or different area. On April 13, 1922, Finn then conveyed the rest of the Ensworth Farm, other than what he conveyed to the Shea brothers, to E. LaVerne Kilpatrick. Exhibit 46G. While the deed for this conveyance was recorded six years before exhibit 29, it is clear that Kilpatrick was aware of the grant to Shea when he received his grant from Finn. The deed he received specifically excluded "the (20) Twenty Acres sold to the Shea Brothers of Jewett City, Town of Griswold." Exhibit 46G. The deed otherwise described the property being conveyed to Kilpatrick mathematically, using most of the same measurements from the deed from Vinton and White to Finn. Unfortunately, the mathematical description in the deed is incomplete. It does not describe a closed plot. Exhibit 95. Depending on which expert opinion the court accepts, Finn's mathematical description either leaves a small gap at the top of what the Thurlow Parties claim is Lot B or it fails to describe the mathematical calculations of four much larger lengths that encompass what the Hulten Parties claim are the boundaries of Lot B. (Compare red outline on exhibit 95 with hatched blue area on same exhibit.) Consequently, the court must turn to other extrinsic evidence to determine what Finn and Kilpatrick intended to include in their transaction, and what they understood to be excluded as having already been conveyed to the Shea brothers. The court finds that such evidence exists in the conveyance six years later, on October 31, 1928, from Kilpatrick to Kuzzyk and Olenik. Exhibit 59A. As noted above, this conveyance is of the same parcel that is the Fourth Tract the Hulten Parties acquired in 1993, referred to by the parties as Lot B. In fact, the description Kilpatrick gave of the part of the Ensworth Farm he was conveying in the deed to Kuzzyk and Olenik is functionally identical to the description of the Fourth Tract in the deed from Davignon to the Hulten Parties: "Bounded northerly by land, now or formerly of Shea Brothers and land now or formerly of Andrew Lutzyk; Easterly by other land of this Grantor at a stone wall on the easterly side of this 25 acre lot; southerly by land formerly of Ira Smart and land formerly of Kuzzyk and Olenik; Westerly by land now or formerly of Rose Salpietro; This described tract contains about twenty-five (25) acres of land." Compare exhibits 59A and 65. As the Thurlow Parties point out, these abutter calls match precisely their understanding of the boundaries of Lot B. Exhibit 25A through C. By contrast, the abutter calls do not match the Hulten Parties' proposed boundaries. For example, under the Hulten Parties' proposal, Andrew Lutzyk abuts Lot B not just to the north, but also to the east. Exhibit 96. Exhibit 59A makes no such call. The same is true for Rose Salpietro to the south (exhibit 96), Donald Minski to the north (exhibit 97), and John D'Amato to the west. Id. The Thurlow Parties also presented additional corroborating evidence to support their reliance on the deed from Kilpatrick to Kuzzyk and Olenik. Alexander Osiper testified as someone who has lived on property abutting Lot 30 and Lot B since 1942. He was the son-in-law of John Lutzyk. John Lutzyk was the nephew of Andrew Lutzyk. Andrew Lutzyk conveyed his 100 acres more or less to his nephew, who later conveyed the property to Osiper. Osiper testified credibly that he knew Kilpatrick very well and walked the boundaries of his property with Kilpatrick to identify where the property lines were located and who the abutting landowners were. Osiper, with information he learned from Kilpatrick, helped Kilpatrick and John Lutzyk fence both the Lutzyk-Osiper property and Kilpatrick's property. They did so using railroad ties and wire fencing. Osiper testified that Kilpatrick described the border between the Shea property (Lot 30) and the Lutzyk-Osiper property by referencing a stone wall that started at the southwest corner of the Lutzyk-Osiper property and proceeded north. Exhibits 2 and 32D. This understanding is consistent with the Thurlow Parties' position regarding the boundaries of Lot 30 and Lot B, and contrary to the claim of the Hulten Parties. Osiper also testified that the eastern boundary of Lot B, as identified by Kilpatrick, was the second stone wall to the east from Lot B's western border with Salpietro. Osiper testified that he worked with Kilpatrick to place a fence along this second stone wall. Evidence established that remains of that fence are still present today. The court found Osiper to be a very credible witness. His recall was sharp and specific. He had no interest in the outcome of the case. If anything, he seemed to identify more with the Hulten Parties, who he contacted when he thought their property was being illegally logged by a third party. The court also received as evidence tax assessor maps, which showed the boundaries of Lot 30 consistent with the claim of the Thurlow Parties. Exhibit 172. These maps showing this configuration for Lot 30 date back to the late 1960s-early 1970s. While Woodis said that such maps can be notoriously inaccurate, he nonetheless considered them, and the court cannot ignore the fact that the maps' boundaries for Lot 30 match precisely the walled lot Woodis identified through his field work. Finally, the court heard from two witnesses related to the Hulten Parties regarding the boundaries issue. Hulten herself acknowledged testifying at the original 2007 trial in the 2005 case that, for the fifty years her family owned Lots A and B, she would walk the loop trail that started on Lot A and ended on Lot B at the stone wall that the Thurlow Parties claim is the southern boundary between Lot 30 and Lot B. She testified that that was the property her family owned and used for fifty years. The court finds that this is a significant admission as to what Hulten understood as the northern boundary of Lot B. She made the admission under oath in an adversary proceeding, but before she decided to take a contrary position in the 2009 action. Hulten claimed that her 2007 testimony may have been in error and did not have the benefit of Stefon's survey work. Neither of those claims change the fact, though, that for most of her life her understanding as to where the northern boundary of her property lies is consistent with the Thurlow Parties' claim and contrary to the position she has taken in this case. Dieters' husband, John, also testified. He testified that he walked the property with his father-in-law, Leo Davignon, the prior owner of Lot B, and discussed the boundary lines with him. While Davignon did not know precisely where the northern boundary of Lot B was located, he described his land as extending beyond where the Thurlow Parties claim that boundary is located. The court does not give much weight to Dieters' testimony on this point for a number of reasons. First, his recounting of his conversation with Davignon was brief and vague. He did not place it in context at all. Second, Davignon's description of the property line was admittedly imprecise. Dieters explicitly stated that Davignon did not know his northern boundary. This stands in stark contrast to the testimony of Osiper regarding his conversation with Kilpatrick, which is also supported by the boundary calls in Kilpatrick's deed of Lot B to Kuzzyk and Olenik. Third, while Dieters has a pecuniary interest in the outcome of this case, Osiper had none. Consequently, to the extent that Dieters' testimony conflicts with Osiper's, the court credits Osiper's testimony. Finally, Dieters admitted to attending the first trial and hearing Hulten identify the northern boundary of Lot B as where the loop trail ended. Despite hearing this testimony, he did not testify that it was in any way incorrect or that he had a different understanding. In addition to Dieters' testimony, the only other evidence relied upon by the Hulten Parties for their boundaries claim are the reference to twenty acres in the deeds from Finn to Shea and Finn to Kilpatrick and the incomplete mathematical description in the Finn to Kilpatrick deed that does identify a northeastern boundary beyond the boundary claimed by the Thurlow Parties. The court attaches little weight to the call for twenty acres. The call in the Finn to Shea deed uses the words "more or less," indicating that the parties to that deed did not intend the acreage call to be precise. While the description of the twenty acre grant to the Shea brothers in the Finn to Kilpatrick deed does not say "more or less," the court attaches little weight to this fact. Reading the two deeds together, it is clear to the court that in the Kilpatrick deed, the parties were simply carving out whatever had been previously conveyed to the Shea brothers. Finn believed that to be twenty acres, so that was the shorthand he used to describe it. The subsequent deed from Kilpatrick to Kuzzyk and Olenik shows that Kilpatrick had a much more specific understanding of the Shea grant than may have been conveyed by the language of the Finn to Kilpatrick deed. In addition, relying on the acreage call to limit Lot 30 to twenty acres, as Stefon does, results in Lot B having over thirty-seven acres. Exhibit 96. However, the Kilpatrick to Kuzzyk and Olenik deed that created Lot B described it as containing about twenty-five acres. Exhibit 59A. Consequently, relying on the acreage call in the deeds simply trades one inaccurate call for another. In response, the Hulten Parties argue that such a result is more reasonable than the Thurlow Parties' proposal, which results in Lot B being only approximately twelve acres. This argument assumes, though, that Lot B's eastern boundary ends at the first stone wall. As noted above, Osiper testified credibly that Kilpatrick intended the eastern boundary of Lot B to be the second stone wall to the east. Doing so would increase the size of Lot B to approximately nineteen acres. Finally, both experts agree that acreage calls are the next to the last factor to consider when determining boundaries, less important than record calls, calls for surveys, natural monuments and man-made monuments. Given that Woodis was able to identify monuments (stone walls and stone piles) that laid out a boundary for the wood lot, and that boundary was corroborated by the record calls in the Kilpatrick to Kuzzyk and Olenik deed just six years after Kilpatrick acquired the property from Finn, the court attaches no weight to Finn's acreage calls in the two deeds. Similarly, the court attaches little weight to the incomplete mathematical description set forth in the deed from Finn to Kilpatrick. The Hulten Parties are correct that the description in that deed of what is being conveyed to Kilpatrick extends northerly along the stone wall that Osiper identified as his border with the Shea brothers' property. However, as noted above, the mathematical description just ends and does not connect to any other point to close the description of the property being conveyed to Kilpatrick. Consequently, it is impossible to determine the intent of Finn and Kilpatrick from this incomplete description. Simply drawing a line westerly from this point to the western boundary of Finn's property such that the Shea grant is limited to approximately twenty acres, as Stefon did, is arbitrary and ignores the substantial other evidence discussed above that shows a contrary intent. Additional facts will be discussed as required. III DISCUSSION A Thurlow Parties' Easement Claims The Thurlow Parties initially asserted four different theories in support of their claim that they have an easement that runs from Gooseneck Hill Road over the Hulten Parties' property to Lot 30 and Lot 21. They have since withdrawn and abandoned their express easement claim, because it is undisputed that Mrs. Bromley did not own Lot B when she granted an easement over Lot A for the benefit of Lot 21. Similarly, the Thurlow Parties have abandoned their easement by prescription claim because there is no evidence of any use of the path over Lot B by any owner of Lot 21 or Lot 30 prior to when the Thurlow Parties acquired Lot 21 in 2003. Consequently, the Thurlow Parties claim either an easement by necessity or an easement by implication. For the reasons set forth below, the court concludes that they have proved neither. 1 Easement by Necessity An easement by necessity typically arises when a piece of property is landlocked with no direct access onto a public road. Here, there is no dispute that Lot 21 is landlocked. That fact alone is not enough to find that the Thurlow Parties are entitled to an easement by necessity over the Hulten Parties' Lot B. "One seeking an easement by necessity has the burden to prove the existence of such easement, and that the easement is reasonably necessary for the enjoyment of the land, by clear and convincing evidence. The burden of proving that an alternative mode of access is not available is also on the person claiming the easement by necessity." (Internal quotation marks omitted.) Christensen v. Reed , 105 Conn.App. 578, 589 n.11, 941 A.2d 333, cert. denied, 286 Conn. 912, 944 A.2d 982 (2008). "[T]o fulfill the element of necessity, the law may be satisfied with less than the absolute need of the party claiming the right of way. The necessity need only be a reasonable one." Hollywyle Assn., Inc . v. Hollister , 164 Conn. 389, 399, 324 A.2d 247 (1973). Furthermore, "although it is true that [a]n easement of necessity may occur when a parcel has become landlocked from outside access such that the owner would have no reasonable means of ingress or egress except over lands promised by another and a right-of-way is necessary for the enjoyment of the parcel . [t]he inverse also is true; that is, a common-law right-of-way based on necessity expires when the owner of the dominant estate acquires access to a public or private road through another means." (Internal quotation marks omitted.) Christensen v. Reed , supra, at 583-84, 941 A.2d 333. Finally, the clear and convincing burden requires the presentation of "clear, precise and unequivocal evidence." (Internal quotation marks omitted.) J. Frederick Scholes Agency v. Mitchell , 191 Conn. 353, 358, 464 A.2d 795 (1983). The standard is met "if the evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist." (Internal quotation marks omitted.) Lopinto v. Haines , 185 Conn. 527, 534, 441 A.2d 151 (1981). Put another way, the clear and convincing 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." (Internal quotation marks omitted.) Id., at 539, 441 A.2d 151. Here, the Thurlow Parties have failed to establish reasonable necessity by clear and convincing evidence. The evidence showed that the path that runs from Lot 21 north to Phinney Lane is at least as suitable an access to Lot 21 as is the path south to Gooseneck Hill Road. The pictures submitted by the Hulten Parties (exhibit 153 C), taken in the spring of 2013, show a wide, easily passable way, wide enough for a truck or tractor. The court's observations of the path in June of this year were the same. In fact, having walked both the path from Gooseneck Hill Road to Lot 21 and the path from Lot 21 to Phinney Lane, the court is unable to understand the Thurlow Parties' claim of necessity. This is particularly true given that Denning admitted hauling timber from Lot 21 and abutting lots over the path to Phinney Lane. Given the evidence to the contrary, the court does not credit Denning's claim that the path to Phinney Lane is often too wet to pass and requires the construction of temporary structures. The Thurlow Parties submitted no corroborating evidence for Denning's testimony or other evidence to contradict the photographs submitted by the Hulten Parties or the court's actual observations. Similarly, the Thurlow Parties submitted no evidence to support their claim that they would need permits to construct temporary structures to take the path out to Phinney Lane or that those permits would be difficult to obtain. In addition, because they now own Lot 30, the Thurlow Parties have not established necessity because they may very well have express access to Lot 21 via the right-of-way Finn granted to the Shea brothers in exhibit 29. As noted above, Woodis reasonably concluded that the right-of-way set forth in that deed was intended to provide the Shea brothers with access to Lot 30 by crossing the property Finn owned to the east of Lot 30 out to Route 169. Exhibit 2 shows the location of the path across the property Finn owned at the time. It is true that exhibit 2 shows the path crossing from Lot 30 over the southwest corner of the Lutzyk-Osiper property before going back onto the property owned at the time by Finn. It is also true that Osiper testified definitively that neither he nor his father-in-law or his uncle ever granted a right-of-way across his property. Nevertheless, the evidence established that Finn granted the Shea brothers a right-of-way across his property, which included what is today Lot B, to gain access from Route 169. Thus, because the Thurlow Parties own both Lot 21 and Lot 30 they may no longer require an easement by necessity because the root deed to Lot 30 from Finn to Shea gives them an express right to access Lot 30, and thereby Lot 21 from Route 169. The Thurlow Parties argue that the court should give no consideration to this path because it goes through wetlands and is not passable. This argument ignores the fact, though, that the evidence establishes that they have an express right to use this path. With such a right they also have a right to maintain the easement for its intended purpose. Labbadia v. Bailey , 147 Conn. 82, 89, 157 A.2d 237 (1959). The Thurlow Parties presented no evidence that the path to Route 169 could not be maintained to make it passable. Nevertheless, the court cannot definitively determine the Thurlow Parties' rights in the path to Route 169 for at least two reasons. First, the parties presented little evidence of the scope of the right-of-way. The reference in the deed from Finn to the Shea brothers describing Lot 30 as a "wood lot with all cut wood and timber thereon," as well as the evidence that the Shea brothers were in the timber or logging business, do suggest that the right-of-way was intended to permit the Shea brothers to remove timber along the path. However, the parties never joined issue on the scope of the right-of-way because no claims have been made to it in either of these cases. Second, for the court to determine what rights the Thurlow Parties have in the right-of-way, the owners of the property between Lot 30 and Route 169 would need to be joined as parties because their rights to use their properties would be affected. The uncertainty of the Thurlow Parties' rights to use the path from Lot 30 to Route 169 does not aid them in their easement by necessity claim. To the contrary, it is their burden to prove that there are no reasonable alternatives to access except from the easement they seek. The possibility of access from an express right-of-way from Route 169 to Lot 30 is a possible reasonable alternative that the Thurlow Parties have not proven by clear and convincing evidence is not available to them. For the above reasons, the Thurlow Parties' claim to an easement by necessity is rejected. 2 Easement by Implication The court must consider two principal elements to determine whether an easement by implication exists: "(1) the intention of the parties, and (2) if the easement is reasonably necessary for the use and normal enjoyment of the dominant estate." Utay v. G.C.S. Realty, LLC , 72 Conn.App. 630, 637, 806 A.2d 573 (2002). "The intent of the grantor to create an easement may be inferred from an examination of the deed, maps and recorded instruments introduced as evidence. . A court will recognize the expressed intention of the parties to a deed or other conveyance and construe it to effectuate the intent of the parties.... In doing so, it always is permissible to consider the circumstances of the parties connected with the transaction.... Thus, if the meaning of the language contained in a deed or conveyance is not clear, the court is bound to consider any relevant extrinsic evidence presented by the parties for the purpose of clarifying the ambiguity." (Citations omitted.) Id. Here, the Thurlow Parties allege in their Fourth Counterclaim in the 2009 action that "[the Hulten Parties'] predecessors in title, Mrs. George Bromley, Adm. of the Estate of Joseph Farnum, and E. LaVerne Kilpatrick, each intended that an easement or right-of-way should exist upon the [Hulten Parties'] Property for purposes including access to and egress from the [Thurlow Parties'] Property, and subsequent owners of the [Hulten Parties'] Property intended that the easement of right should continue for the same purpose." Amended Revised Counterclaims (# 244), Fourth Counterclaim, ¶ 4. There is no question that Mrs. Bromley so intended. In fact, she explicitly said so in her grant to Tillinghast. Exhibit 70. That intent only gets the Thurlow Parties as far as the boundary of Lot A, though, because that is all that Mrs. Bromley owned at the time of her grant in 1903. What she intended beyond Lot A is therefore irrelevant, as she had no authority to grant an easement, whether expressed or by implication, over land then owned by Finn. There is no evidence that Kilpatrick ever intended to grant an easement for the benefit of Lot 21 or Lot 30 over Lot B, either when he owned it or transferred it to Kuzzyk and Olenik. Kilpatrick never owned Lot 21 or Lot 30. In addition, unlike Mrs. Bromley, he never granted in any documents a right to pass from Lot A over Lot B for the purpose of getting to Lot 21 or Lot 30. Nor did his deed from Finn of all of the Ensworth Farm except what was granted to the Shea brothers make any reference to Lot 21. Exhibit 46G. And, although that deed did make reference to the grant to Shea (Lot 30), it does not include any reference to a right-of-way across Lot B. Furthermore, Kilpatrick's conveyance of Lot B to Kuzzyk and Olenik makes no reference whatsoever to Lot 21 or access to it. Exhibit 59A. None of the deeds make reference to any deed, map or plan that shows the existence of an easement to Lot 21. Certainly, if Kilpatrick (or Finn before him) intended to convey an easement across Lot B for the benefit of Lot 21 or Lot 30, they could have done so by referencing the deed from Mrs. Bromley to Tillinghast. They did not. Overall, the deeds relating to Lot B are unambiguous in that they express no intent to extend an easement running from Gooseneck Hill Road, over Lot A and through Lot B for the benefit of Lots 21 and 30. The lack of evidence of intent here is similar to that in Utay . In that case, there was no reference in the deed to an easement, nor to any map or other instrument from which an intent to create an easement could be inferred. Consequently, the Appellate Court concluded that "the grantor did not intend to create an easement by implication over the defendant's land when he conveyed the property to the plaintiff. Accordingly, there is no need to consider extrinsic evidence of such an intention." Utay v. G.C.S. Realty, LLC , supra, 72 Conn.App. at 637-38, 806 A.2d 573. The court went on to note that "the use of intent to find an implied easement long has been disfavored in Connecticut, largely because of the obvious statute of frauds problem, but also because the practical impact is to make land records less reliable.... Consequently, implied grants of any interest in land are allowed to a very much more limited extent [in Connecticut] than in many other states." (Citations omitted; internal quotation marks omitted.) Id., at 638 n.9, 806 A.2d 573. The Thurlow Parties attempt to avoid this result by pointing to the right-of-way language in the deed from Finn to the Shea brothers relating to Lot 30. Exhibit 29. They argue that the reference to "the right-of-way to and from said land as the path now runs" refers to the path that ran from Gooseneck Hill Road to Lot 21. The problem with this argument is that their expert, Woodis, does not believe that the right-of-way refers to that path. Instead, Woodis testified that he believes the reference is more reasonably understood as referring to the path to the east to Route 169. Exhibit 2. For the reasons discussed above, the court agrees with Woodis. Consequently, the reference in the deed from Finn to Shea is not evidence of an intention to create an easement or right-of-way south to Gooseneck Hill Road. The only other evidence the Thurlow Parties rely upon is the fact that the path has existed in its current state since at least 1934. This fact, though, cannot, in the absence of some evidence in the deeds, be used to prove that any owner of Lot B ever intended to create an easement over that parcel for the benefit of Lot 21 or Lot 30. Furthermore, the existence of such a path is as consistent with use by the owners of Lot B as it is with use by the owners of Lots 21 and 30. The Thurlow Parties have simply failed to prove the first element of an easement by implication. Nor have they proved the second element-that the easement is reasonably necessary to the use and enjoyment of their property. In evaluating the reasonably necessary factor, the Appellate Court has stated that the claimant must prove that "the easement is highly convenient and beneficial for the enjoyment of the dominant estate." (Internal quotation marks omitted.) Sanders v. Dias , 108 Conn.App. 283, 294, 947 A.2d 1026 (2008). Put another way, "[a]n easement by implication does not arise by mere convenience or economy, but exists because of some significant or unreasonable burden as to access that demands the easement's presence." (Internal quotation marks omitted.) Utay v. G.C.S. Realty, LLC , supra, 72 Conn.App. at 638, 806 A.2d 573. As noted above, the Thurlow Parties have not proven that it is highly more convenient for them to access Lot 21 and Lot 30 from Gooseneck Hill Road than it is to access those lots from the path running north to Phinney Lane. Similarly, they have not offered any evidence as to the cost and effort involved in maintaining the express right-of-way Finn granted to the Shea brothers in exhibit 29 that appears to use the path to Route 169. For the foregoing reasons, the Thurlow Parties have failed to prove an easement by implication across Lot B. The evidence is clear that they have an express easement from Gooseneck Hill Road to the boundary of Lot A and Lot B as depicted on exhibit 159. Exhibit 70. Furthermore, the court finds that the easement is the easterly of the two paths depicted on exhibit 159. Exhibit 2. The Thurlow Parties, though, have proven no right to go farther on that path than the boundary between Lots A and B. Given this conclusion, the court need not consider the scope of the easement from Gooseneck Hill Road across Lot A, as the easement is of little value for any purpose without the right to continue onto Lot B. B Boundaries of Lot B and Lot 30 The parties have submitted competing descriptions of the boundaries for Lot B and Lot 30. The Hulten Parties rely upon the conclusions of Stefon as set forth in exhibit 159. The Thurlow Parties rely upon the conclusions of Woodis as set forth in exhibit 2. In an action to quiet title to lands and to determine boundaries between parties, "[w]here the testimony of witnesses as to the location of the land described in deeds is in conflict, it becomes a question of fact for the determination of the court which may rely upon the opinions of experts to resolve the problem and it is the court's duty to accept that testimony or evidence which appears more credible." (Internal quotation marks omitted.) Har v. Boreiko , 118 Conn.App. 787, 796, 986 A.2d 1072 (2010). Where, as here, the deeds at issue are ambiguous, "the intention of the parties is a decisive question of fact.... In ascertaining the intention of the parties, it [is] proper for the trial court to consider the surrounding circumstances." (Citations omitted; internal quotation marks omitted.) Koennicke v. Maiorano , 43 Conn.App. 1, 10, 682 A.2d 1046 (1996). "Thus, if the meaning of the language contained in a deed or conveyance is not clear, the trial court is bound to consider any relevant extrinsic evidence presented by the parties for the purpose of clarifying the ambiguity." Lakeview Associates v. Woodlake Master Condominium Assn., Inc. , 239 Conn. 769, 780-81, 687 A.2d 1270 (1997). The parties have relied upon a variety of extrinsic evidence in support of their respective positions. Fortunately, our Supreme Court has provided some guidance on the weight to be given such evidence. First, "[w]here the boundaries of land are described by known and fixed monuments which are definite and certain, the monuments will prevail over courses and distances." (Internal quotation marks omitted.) Velsmid v. Nelson , 175 Conn. 221, 227, 397 A.2d 113 (1978). "A monument is only controlling, however, if it is referred to in the deed." (Internal quotation marks omitted.) Chebro v. Audette , Superior Court, judicial district of Windham at Putnam, Docket No. CV-09-5004630 S, 2010 WL 4276746 (September 23, 2010) (50 Conn. L. Rptr. 690, 693 ) (Riley, J .), aff'd, 138 Conn.App. 278, 50 A.3d 978 (2012). On the other end of the spectrum, "[t]he general rule is that the designated quantity of land called for, here acreage, is the least reliable aspect of the description determining the intent by the parties. See Texas Eastern Transmission [Corp. ] v. McCrate , 76 Ill.App.3d 828, 395 N.E.2d 624, 32 Ill.Dec. 394 (1979) ; Erickson v. Wick , 22 Wash.App. 433, 591 P.2d 804 (1979) ; J. Backman & D. Thomas, A Practical Guide to Disputes Between Adjoining Landowners-Easements 1990) § 8.02; 12 Am. Jur. 2d, Boundaries § 75." Koennicke v. Maiorano , supra, 43 Conn.App. at 10-11, 682 A.2d 1046. The problem for the court here is that none of the evidence submitted by the parties is clear or definitive. The deed from Finn to Shea, which created Lot 30, does not explicitly identify any monuments. Exhibit 29. It does make a reference to a "wood lot." Both experts agree that it is reasonable to conclude that such a reference was meant to identify a closed area. Yet, the deed does not identify the monuments that closed the area. The deed does make reference to abutting property owners, but those calls are imprecise and inaccurate, no matter where one tries to set Lot 30. The deed also makes an approximate acreage call, but, as noted above, using this acreage call as a basis for drawing the boundary lines for Lot 30 results in inaccurate acreage calls in the deeds for abutting properties. Similarly, the deed from Finn to Kilpatrick, which conveyed everything Finn had not conveyed to the Shea brothers, describes the conveyance by an incomplete mathematical description. Weighing all of the evidence, though, and for the reasons set forth above, the court concludes that the extrinsic evidence establishes that Woodis' conclusion is more reasonable, more logical and more credible. Although not called out in the deed from Finn to Shea, Woodis was able to locate monuments-stone walls and stone piles-that set forth the boundaries of a wood lot. His conclusion as to those boundaries was corroborated by other evidence, including exhibit 59A, Osiper's testimony, Hulten's testimony, and tax assessor maps. By contrast, Stefon ignored clear evidence of what one of the key parties-Kilpatrick-intended by giving no weight to the abutter calls in the deed from Kilpatrick to Kuzzyk and Olenik that created Lot B, or the testimony of Osiper regarding what Kilpatrick understood to be the property lines for Lot B and Lot 30. Stefon also ignored Hulten's belief for virtually all of her life, until she asserted her claim in the 2009 action, that the boundary for Lot B ends where Woodis says it does. Instead, Stefon relied upon an incomplete mathematical description and a clearly imprecise acreage call. Furthermore, he then drew a somewhat arbitrary line to create what he believes is the Lot 30 Finn and the Shea brothers intended to create in 1918. Exhibit 29. Yet, his Lot 30 does not result in better matching abutter calls for Lot 30, results in incorrect abutter calls for Lot B, and creates an acreage disparity in the deed for Lot B. The court found Stefon's conclusions neither reasonable nor credible. For all of these reasons, the court concludes that the boundaries for Lot 30 are accurately set forth in exhibit 2. It further finds that the northern boundary for Lot B ends at the southern boundary of Lot 30 on exhibit 2. The southern boundary of Lot B is depicted on exhibit 159 where the fourth tract (Lot B) is shown to border the second tract (Lot A). IV CONCLUSION Based on the conclusions set forth above, the court enters judgment as follows. In the 2005 action, judgment on the First Count of the September 17, 2013 Amended Substitute Complaint shall enter for the plaintiffs as to an express easement to use the path as depicted on exhibit 159 from Gooseneck Hill Road to the boundary between the second tract (Lot A) and the fourth tract (Lot B). To the extent the plaintiffs are claiming that they have an easement from the northern border of Lot A across Lot B, to its northern border with Lot 30, judgment shall enter for the defendants. As to the Fourth Count seeking an injunction, judgment shall enter for the defendants because the defendants have the right to block access to Lot B. To the extent they also blocked access to Lot A, the court can see no harm to the plaintiffs, irreparable or otherwise, given that they have failed to prove that they have any right to traverse Lot B. As to the Fifth Count, judgment shall enter for the defendants because the plaintiffs have failed to prove that they had an exclusive possessory interest in the easement across Lot A. As to the Sixth, Seventh, Eighth and Ninth Counts, judgment shall enter for the defendants because the plaintiffs have failed to prove a right to access their property through Lot B. Consequently, the defendants' actions in blocking access to Lot B were not tortious. To the extent that the defendants blocked access to Lot A, the plaintiffs can prove no damages because they had no right to cross from Lot A to Lot B. In the 2009 action, judgment on Count One of the Third Amended Complaint shall enter for the plaintiffs. The defendants' easement over Lot A ends at the northern boundary between Lot A and Lot B. As to Count Two, judgment shall enter for the defendants, as the court does not see the need for a permanent injunction. The court has no reason to believe that the defendants will not abide by the judgment of the court now that their rights have finally been adjudicated. As to Count Three, judgment shall enter for the defendants. The northern boundary for Lot B and the boundaries for Lot 30 are as set forth on exhibit 2. As to Count Four, judgment shall enter for the defendants because the logging done by the defendants occurred on their property. As to the defendants' Amended Revised Counterclaims in the 2009 action, judgment shall enter for plaintiffs. The defendants failed to prove an easement by necessity or implication. These appeals arose out of two separate actions that were consolidated for trial. The plaintiffs in the first action, Thurlow v. Hulten, Superior Court, judicial district of Hartford, Complex Litigation Docket, Docket No. X04-CV-05-4059315-S, were Luther E. Thurlow, Anthony Denning and Steven Pelletier. The defendants were Lee Ann Hulten and Linda K. Dieters. That case was tried to the court, which rendered judgment in part for the plaintiffs. See Thurlow v. Hulten, 130 Conn.App. 1, 21 A.3d 535, cert. denied, 302 Conn. 925, 28 A.3d 337 (2011). This court thereafter reversed the trial court's judgment and remanded the case for further proceedings. Before further proceedings could occur, however, the defendants in that first action, Hulten and Dieters, brought a second action, Hulten v. Thurlow, Superior Court, judicial district of Hartford, Complex Litigation Docket, Docket No. X04-CV-09-4050303-S, against the plaintiffs in the first action, Thurlow, Denning and Pelletier. The trial court consolidated both actions and issued a single memorandum of decision disposing of the claims raised in both cases. For convenience, we refer in this opinion to Thurlow, Denning and Pelletier as the Thurlow parties, and to Hulten and Dieters as the Hulten parties, as did the trial court in its decision. Affirmed. Thurlow v. Hulten, 173 Conn.App. at 698, 164 A.3d 858 (2017). The Thurlow Parties withdrew their Second and Third Counts, which sought rights based upon a claim of a prescriptive easement. While the parties disagree over the boundaries of Lot 30, because it abuts what the Hulten Parties call their Lot B, and the parties disagree as to where the boundary is between Lot B and Lot 30, the parties nonetheless agree that the northern boundary of Lot 30 abuts the southern boundary of Lot 21. Between 1903 and 2003, Lot 21 was conveyed a number of times. Exhibits 71 through 76. With one exception, each of these conveyances made reference to the right-of-way described in exhibit 70. The only exception was a 1926 probate deed from the estate of Helen Tillinghast to her mother, Mary Tillinghast. Exhibit 73. The right-of-way language was picked up in the next deed in 1938 from Mary Tillinghast to Louise T. Ellsworth. Exhibit 74. The Hulten Parties do not argue that the missing right-of-way language in the probate deed somehow extinguishes Mrs. Bromley's earlier grant. Nor could they, as the right-of-way language was clearly a matter of record when they acquired Lot A. Because the Thurlow Parties now own Lot 30, they would only need to acquire or prove the existence of some right to get from Lot A, through Lot B, to Lot 30. In the notes on exhibit 159, the Hulten Parties' expert, Stefon, identifies the eastern path as the possible location of the right-of-way. However, he does not identify the western path as such. Denning later testified that a permanent bridge is now in place, eliminating a need for a temporary bridge in the future. The court heard little evidence regarding access to Lot 21 from Lisbon Road to the east. Denning testified that three wetlands have to be crossed between Lot 21 and Lisbon Road. The Hulten Parties offered no evidence to the contrary. Consequently, the court finds that access from Lisbon Road to Lot 21 is not practicably feasible. On January 6, 1993, Davignon signed a second quitclaim deed conveying the same five tracts to the Hulten Parties. Exhibit 66. The reason she did so is unclear. In any event, the description of the Fourth Tract in both deeds is exactly the same. A rod is a unit of measurement equal to 16.5 feet. Stefon also testified that it was reasonable to assume that the reference to a "wood lot" was meant to identify a defined area. Woodis' opinion as to the boundaries of Lot 30 and Lot B also relied on Osiper's testimony. The Standards for Surveys and Maps in the State of Connecticut make clear that under circumstances like those here, it is appropriate to do so. Section 300b-17 (b) provides in relevant part: "Where properties are poorly described or where the location of the boundaries have become lost or uncertain, the surveyor may contact adjacent owners or other persons for their knowledge as to the locations of boundary lines." Exhibit 157, p. 12. It was unclear whether that third party was one of the Thurlow Parties. The Standards for Surveys and Maps in the State of Connecticut require that a land records search for determining boundary lines shall include "an examination of tax assessor's plats and records." Exhibit 157, § 20-300b-16 (a) (4). Attempting to diminish the significance of the deed from Kilpatrick to Kuzzyk and Olenik, Stefon testified that he believes that Kilpatrick just did not understand what he bought from Finn. There is no evidence to support this claim. In fact, as exhibit 59A and the testimony of Osiper make clear, Kilpatrick always maintained the same firm and definitive view of what he owned. Extending Lot B farther east would call into question the eastern boundary between the Hulten Parties and Brian Burchman. Exhibit 97. The court raised this issue during trial and asked whether Burchman needed to be added as a party to the action. The Hulten Parties ultimately represented to the court that they were making no claim to Burchman's property, even if they had the right to do so. They did so despite knowing Osiper's testimony. Based on that representation, the court went forward with the trial without Burchman. As noted above, although Lot 30 lies in between Lot B and Lot 21, because the Thurlow Parties now own Lot 30, they only need to prove an easement over Lot B. Denning identified the wood hauled as firewood or "pole wood." The fact that the easement across only Lot A is of little value to the owner of Lot 21 does raise a question as to why Tillinghast would bother acquiring it in 1903 if he did not already have rights beyond Lot A. Unfortunately for the Thurlow Parties, they never presented evidence answering this question. It may have been that Tillinghast intended to acquire other rights after he acquired the right-of-way from Mrs. Bromley, but never did. To be clear, exhibit 159 does not accurately represent Lot B as determined by the court. Nevertheless, the southern boundary for Lot B on exhibit 159 does accurately represent the boundary between Lot A and Lot B.

12490232

Nancy POWELL-FERRI v. Paul John FERRI, Jr.

Powell-Ferri v. Ferri

2017-08-08

SC 19434

1124

1136

165 A.3d 1124

165

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

2021-09-08T21:16:17.237805+00:00

Fastcase

Nancy POWELL-FERRI v. Paul John FERRI, Jr.

Nancy POWELL-FERRI v. Paul John FERRI, Jr. SC 19434 Supreme Court of Connecticut. Argued November 12, 2015 Officially released August 8, 2017 Kenneth J. Bartschi, with whom were Karen L. Dowd and, on the brief, Thomas P. Parrino and Laura R. Shattuck, for the appellant (plaintiff). Charles D. Ray, with whom were Sarah E. Murray and, on the brief, Carole Topol Orland, for the appellee (defendant). Palmer, Eveleigh, McDonald, Espinosa and Robinson, Js. This case was originally argued before a panel of this court consisting of Justices Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson. Thereafter, Justice Zarella retired from this court and did not participate in the consideration of the case. The listing of judges reflects their seniority status on this court as of the date of oral argument.

6782

41413

EVELEIGH, J. This appeal arises from an action dissolving the marriage of the plaintiff, Nancy Powell-Ferri, and the defendant, Paul John Ferri, Jr. (Ferri). On appeal, Powell-Ferri challenges numerous financial orders entered by the trial court. Specifically, Powell-Ferri asserts that the trial court incorrectly (1) determined that she did not contribute to a trust created by Ferri's father, Paul John Ferri, Sr., in 1983 (1983 trust), (2) denied her motion for contempt, (3) determined that a trust created in 2011 (2011 trust) was not a marital asset, and (4) structured the award of attorney's fees. We disagree with Powell-Ferri and, accordingly, affirm the judgment of the trial court. In its memorandum of decision, the trial court set forth the following relevant facts and procedural history. The trial court dissolved the parties' marriage in August, 2014, and entered financial orders. At the time of dissolution, the parties had been married for nineteen years and had three daughters, all of whom were minors. Powell-Ferri was a homemaker throughout the marriage, taking care of all three children and the family household. For most of the marriage, the parties lived in a home they owned in Farmington. Ferri briefly worked for his father's venture capital firm, Matrix Partners, but for the majority of the marriage, his income was derived from numerous Valvoline franchises (franchises). Ferri is the sole beneficiary of the 1983 trust. The 1983 trust is central to the underlying dissolution action, and the parties' use of the trust during the marriage strongly informed the trial court's financial orders. The parties did not rely on the trust for their daily living expenses. Ferri primarily used the 1983 trust for investment purposes. There were a few instances during the marriage when the 1983 trust was not used for purely investment purposes; for example, the trust provided $300,000 toward home improvements and regularly paid the parties' taxes. The parties, in turn, regularly contributed their tax refund checks to the trust. Ferri also used funds from the trust during the marriage to purchase ownership interests in the franchises. In March, 2011, while the underlying dissolution action was pending, the trustees of the 1983 trust (trustees) created a second trust whose sole beneficiary was Ferri (2011 trust). The trustees then decanted a substantial portion of the assets in the 1983 trust to the 2011 trust. Throughout the divorce, the parties disputed the valuation of the 1983 trust. The trustees valued the trust at approximately $69 million, Powell-Ferri valued it at approximately $98 million, and Ferri at approximately $80.5 million. The majority of the trust value derived from three assets: securities, hedge and investment funds, and various limited liability companies related to the franchises. The parties did not dispute the value of the securities, as these were publicly traded. The parties also did not contest the values of the limited liability companies, which obtained ownership of the franchises using, in part, funds from the 1983 trust. Specifically, the trial court found that the 1983 trust contributed between $5 million and $8 million toward the acquisition of the franchises. The parties agreed that the franchise related entities were worth approximately $14.5 million. The parties did, however, dispute the value of the hedge and investment fund assets. The court engaged in a detailed and thorough analysis to determine the value of these assets. In a related declaratory judgment action, the trial court found that the trustees were not authorized to decant, and ordered the trustees to return 75 percent of the assets to the 1983 trust, which the trial court in the present case had determined was marital property. Although the trial court determined 75 percent of the assets transferred from the 1983 trust to be marital property, it did not divide those assets equally as Powell-Ferri had requested. The trial court found that Powell-Ferri had requested too great a share of those assets because the 1983 trust represented a sum of money that the parties knew they had in reserve so that they would "always be free from want or need in the lifestyle they had established." The trial court recognized that the 1983 trust was "an asset that [Ferri] brought to the marriage, that it is the initial product of the labor of his father, not him, and that it should be left sufficiently intact so that it may be used for investment . purposes as [Ferri] had envisioned it." The court also recognized that whatever assets remained in the 2011 trust following an appeal in the declaratory judgment action; see footnote 1 of this opinion; were not marital assets because Ferri had no present or future entitlement to those funds. On the basis of that separate action and the uncertainty as to the validity of the decanting, the trial court fashioned two alternative financial orders. The first order contemplated a return of assets to the 1983 trust. The second order assumed that the trustees' decision to decant was upheld on appeal and that the assets of the 2011 trust were left undisturbed. Under the first order, Ferri was required to pay Powell-Ferri $12 million in lump sum alimony over the course of several years. The trial court found that, under this scenario, it was "equitable to order a sufficient lump sum alimony [so] that [Powell-Ferri] will have no need for dependency on [Ferri] in the future." Conversely, under the second order, Ferri was required to pay, inter alia, $25,000 per month in alimony. As we explained more fully in the appeal pertaining to the declaratory judgment action; Ferri v. Powell-Ferri , 326 Conn. 438, 165 A.3d 1137 (2017) ; the issue of whether the trustees had the authority to decant the assets of the 1983 trust into the 2011 trust, presented a novel issue of Massachusetts law. Therefore, we certified the following three questions to the Massachusetts Supreme Judicial Court: (1) "Under Massachusetts law, did the terms of [the 1983 trust] empower [the] trustees to distribute substantially all of its assets . to [the 2011 trust]?" (2) "If the answer to [the first question] is 'no,' should either [75 percent] or [100 percent] of the assets of the 2011 [t]rust be returned to the 1983 [t]rust to restore the status quo prior to the decanting?" (3) "Under Massachusetts law, should a court, in interpreting whether [Ferri's father] intended to permit decanting to another trust, consider an affidavit [from him], offered to establish what he intended when he created the 1983 [t]rust?" The Massachusetts Supreme Judicial Court answered the first and third questions in the affirmative. Ferri v. Powell-Ferri , 476 Mass. 651, 663-64, 72 N.E.3d 541 (2017). In Ferri v. Powell-Ferri , supra, 326 Conn. 438, we adopt the Massachusetts Supreme Judicial Court's thorough and well reasoned decision in full. On the basis of that decision, we reversed the judgment of the trial court in the declaratory judgment action as it related to the decanting of assets. Accordingly, the financial order that we must consider in the present appeal is the one that did not consider the assets decanted from the 1983 trust. I Powell-Ferri's first claim on appeal is that the trial court incorrectly determined that she did not contribute to the value of the 1983 trust. Powell-Ferri identifies two reasons why the trial court's finding was incorrect: (1) her homemaking efforts allowed Ferri to develop the business assets that comprise a significant portion of the 1983 trust; and (2) she regularly funded the 1983 trust by contributing substantial tax refund checks. Even if we accept Powell-Ferri's assertions in this regard, the Massachusetts Supreme Judicial Court has determined that the decanting was appropriate. Consequently, the assets from the 1983 trust cannot be considered as part of the dissolution judgment in the present case. We begin our analysis with the standard of review applicable to a trial court's financial orders. "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.... It is within the province of the trial court to find facts and draw proper inferences from the evidence 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.... [T]o conclude that the trial court abused its discretion, we must find that the court either incorrectly applied the law or could not reasonably conclude as it did.... 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.) Weinstein v. Weinstein , 280 Conn. 764, 774-75, 911 A.2d 1077 (2007). As we explained previously in this opinion, the trial court drafted two financial orders. The first order, which was to be used if the decanting was found to be improper, considered 75 percent of the original assets from the 1983 trust. The second order, which would continue in the event that the decanting was found to be appropriate, did not include consideration of any assets from either trust. Neither party has challenged the latter. Because the Massachusetts Supreme Judicial Court found that the trustees' decision to decant was proper, virtually all of the assets from the 1983 trust were effectively transferred into the 2011 trust. The 2011 trust is a spendthrift trust and, thus, is not considered an asset of the marital estate that the court may divide under General Statutes § 46b-81. "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." Zeoli v. Commissioner of Social Services , 179 Conn. 83, 88, 425 A.2d 553 (1979). Because Powell-Ferri obtained a judgment against Ferri for alimony and child support, her status is that of a creditor. See Spencer v. Spencer , 71 Conn.App. 475, 486, 802 A.2d 215 (2002). Although the court could divide those assets while they were held in the 1983 trust, it could not reach them once they were moved into the 2011 trust. We note that, although the trial court could not consider the assets decanted to the 2011 trust for equitable distribution purposes, it could, and did, consider Ferri's ability to earn additional income when creating its alimony orders under General Statutes § 46b-82. The trial court awarded substantially more of the marital assets to Powell-Ferri, including the marital home. The trial court found that Powell-Ferri's "ability to acquire future assets [was] severely limited." Conversely, the trial court found that Ferri was "likely to quickly pick up the pieces of his economic future after this case is over" and that the trust funds had routinely supported his investments. Notably, the trial court ordered Ferri to pay Powell-Ferri $300,000 in alimony annually, despite the fact that, when the present action was commenced, Ferri had been earning only $200,000 annually. Ferri was also required to pay Powell-Ferri 20 percent of his annual earnings over $500,000. We have repeatedly recognized that "[i]n determining the assignment of marital property under § 46b-81 or alimony under § 46b-82, a trial court must weigh the 'station' or standard of living of the parties in light of other statutory factors such as the length of the marriage, employability, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income." Blake v. Blake , 207 Conn. 217, 232, 541 A.2d 1201 (1988). In the present case, the trial court did weigh these statutory factors when determining both the division of marital property and the award of alimony. Accordingly, we cannot conclude that the trial court abused its discretion in declining to treat the 2011 trust as a marital asset. Because the Massachusetts Supreme Judicial Court determined that the decanting was proper, and because those assets could not be reached once placed in the 2011 trust, we need not consider Powell-Ferri's arguments concerning contributions to the 1983 trust. II Powell-Ferri next claims that the trial court improperly declined to find Ferri in contempt. Specifically, Powell-Ferri claims that the trial court incorrectly found that Ferri did not have an obligation under Practice Book § 25-5 to bring an action against the trustees and seek the return of the assets decanted from the 1983 trust. Powell-Ferri claims that, under § 25-5 (b), Ferri had an obligation to resist the trustees because decanting the 1983 trust was "the type of disruption to the status quo the automatic orders are intended to prevent," and that the language of § 25-5 (b)"is sufficiently capacious to include [Ferri's] acquiescence . as conduct that the orders prohibit." We disagree. The automatic orders do not impose any obligation on Ferri to bring an action against the trustees for lawfully decanting assets from the 1983 trust. We begin with general principles of law and the applicable standards of review. "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). A contempt judgment cannot stand when, inter alia, the order a contemnor is held to have violated is vague and indefinite, or when "the contemnor, through no fault of his own, was unable to obey the court's order." (Internal quotation marks omitted.) Id. Consistent with the foregoing, when we review such a judgment, we first consider 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." Id., at 693, 935 A.2d 1021. This question presents a legal inquiry subject to de novo review. Id."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." Id., at 693-94, 935 A.2d 1021 ; see also Parisi v. Parisi , 315 Conn. 370, 380, 107 A.3d 920 (2015) ; Ramin v. Ramin , 281 Conn. 324, 336, 915 A.2d 790 (2007) ; Eldridge v. Eldridge , 244 Conn. 523, 526-29, 710 A.2d 757 (1998) ; McGuire v. McGuire , 102 Conn.App. 79, 82, 924 A.2d 886 (2007). We first note that the automatic orders do not apply to the trustees' actions. The automatic orders, by their explicit terms, do not apply to nonparties. Practice Book § 25-5 (b) (1) provides in relevant part: "Neither party shall sell, transfer, exchange, assign, remove, or in any way dispose of . any property ." (Emphasis added.) Powell-Ferri recognizes this fact and does not claim that the trustees violated the automatic orders when they decanted assets from the 1983 trust. Instead, she argues that Ferri violated the automatic orders by failing to seek restoration of the decanted assets through a civil action. Powell-Ferri makes this claim despite the trial court's finding that Ferri was not involved in the decanting and did not otherwise facilitate the creation of the 2011 trust. Powell-Ferri has not challenged that finding in the present appeal. In support of her conclusion that Ferri violated the automatic orders, Powell-Ferri embarks upon an unconvincing analysis of the term " 'dispose of' " in an attempt to reach a definition that encompasses Ferri's actions, or lack thereof. Powell-Ferri ultimately declares that " 'dispose of' " is equivalent in meaning to " 'relinquish.' " Powell-Ferri suggests that, even though Ferri did not take an active role in decanting the trust, he nevertheless violated the automatic orders because he "relinquished" his right to 75 percent of the 1983 trust when he failed to bring a civil action against the trustees in order to recover those assets. This claim is not persuasive for two reasons. First, Powell-Ferri's interpretation of the obligations imposed by Practice Book § 25-5 (b) is not supported by any relevant case law. None of the cases in which we have found dissipation of marital assets is factually similar to the present case. "Generally, dissipation is intended to address the situation in which one spouse conceals, conveys or wastes marital assets in anticipation of a divorce.... Most courts have concluded that some type of improper conduct is required before a finding of dissipation can be made. Thus, courts have traditionally recognized dissipation in the following paradigmatic contexts: gambling, support of a paramour, or the transfer of an asset to a third party for little or no consideration. Well-defined contours of the doctrine are somewhat elusive, however, particularly in more factually ambiguous situations." (Citation omitted; footnote omitted.) Gershman v. Gershman , 286 Conn. 341, 346-47, 943 A.2d 1091 (2008). The facts here do not involve any of the traditionally recognized paradigmatic contexts, and, thus, we must determine whether the present case is one of the rare factually ambiguous situations which nevertheless constitutes dissipation. It is not. Powell-Ferri has failed to convince us that Ferri's failure to bring an action against the trustees was equivalent to a dissipation of marital property in violation of Practice Book § 25-5 (b) (1). Powell-Ferri claims that several cases, both from this court and other jurisdictions establish that Ferri's failure to pursue recovery of the 1983 trust assets is equivalent to dissipation of marital assets. Specifically, Powell-Ferri claims that Finan v. Finan , 287 Conn. 491, 949 A.2d 468 (2008), and Gershman v. Gershman , supra, 286 Conn. at 341, 943 A.2d 1091, establish that Ferri's decision not to bring an action against the trustees constitutes the "sort of dissipation" that the automatic orders are intended to prevent. Powell-Ferri overlooks a fundamental distinction between those cases and the present case. In Gershman v. Gershman , supra, at 351, 943 A.2d 1091, the defendant was accused of dissipating marital assets because he made bad investments and he spent marital assets on an excessively expensive marital home. In Finan v. Finan , supra, at 494, 949 A.2d 468, the plaintiff claimed that the defendant had dissipated marital assets because he spent large sums of money prior to the parties' separation. Both of these cases involved actions taken directly by one of the parties, not by an unrelated third party. There is no allegation in the present case that Ferri engaged in any affirmative act to remove assets from the 1983 trust. Powell-Ferri also claims that numerous cases from other jurisdictions support her conclusion that Ferri's failure to act violated Practice Book § 25-5 (b) (1). These cases are also inapposite. For example, in In re Marriage of Cook , 117 Ill.App.3d 844, 853-54, 453 N.E.2d 1357, 73 Ill.Dec. 222 (1983), the court found that a husband had dissipated marital assets because he stopped paying the mortgages and taxes on various properties the couple owned. Likewise, in In re Marriage of Thomas , 239 Ill.App.3d 992, 995, 608 N.E.2d 585, 181 Ill.Dec. 512 (1993), the court found that a husband had dissipated marital assets because he caused the couple's business to become less profitable "either through his inattention to the quality of service the corporation was supplying its clients or through his failure to solicit additional clients or through his outright stealing of clients for his new business." Additionally, in Heins v. Heins , 783 S.W.2d 481, 484-85 (Mo. App. 1990), the court found that a husband had dissipated marital assets when he purposefully failed to pay the mortgage in order to have his wife removed from the marital home. Finally, in Maggiore v. Maggiore , 91 A.D.3d 1096, 1096-97, 937 N.Y.S.2d 366 (2012), the trial court found that a defendant had dissipated marital assets after he failed to make mortgage payments. In that case, the trial court had given the defendant authority to remove money from a retirement account to make mortgage payments, but he instead used the money for personal purposes. Id., at 1097, 937 N.Y.S.2d 366. In all of these cases cited by Powell-Ferri, the finding of dissipation rested on actions taken directly by a party or because of that party's failure to continue fulfilling a preexisting financial obligation that resulted in the loss of marital assets. In none of these cases did the court find that a party to a dissolution proceeding had an obligation to file a separate civil action in order to recover assets from a third party. Second, Powell-Ferri's argument is not supported by our rules of practice. Nothing in our rules of practice requires a party to file an action against a third party whenever he or she may have a viable cause of action, particularly when the third party acted lawfully and in that party's best interest. There are numerous reasons why a party may choose not to bring an action. The trial court found that Ferri declined to take action because he did not want to bring an action against his family and because he believed that the trustees acted in his best interest. Even if Ferri believed that he would be successful in an action against the trustees, he reasonably could have concluded it would not be worth alienating his family to recover discretionary control over assets that he evinced little interest in using. Furthermore, imposing an obligation on parties in divorce proceedings to bring separate actions against third parties, particularly when that party feels that filing such an action is against their best interest, is poor public policy and could lead to untenable results. For example, if a party was obligated to bring such an action whenever their spouse claimed that they are potentially entitled to recover damages, that party may feel compelled to bring such an action by the prospect of sanctions for dissipation of assets. If that separate action fails, however, that same party may then be accused of dissipating assets by pursuing a meritless civil claim. The automatic orders do not require Ferri to take all conceivable actions to recover assets not under his control. Powell-Ferri claims that Practice Book § 25-5 (b) (1) prohibits Ferri's "acquiescence" in the trustees' decanting because that omission amounts to a disposition of a marital asset. Even if there were instances in which a party would be required to take an affirmative action to recover marital assets, this is not such a case. The Massachusetts Supreme Judicial Court held that the trustees were permitted to decant assets from the 1983 trust to the 2011 trust. The trustees, therefore, did not engage in any illegal activity and did not breach any conditions of the 1983 trust agreement. Powell-Ferri also did not establish that Ferri was aware of the creation of the 2011 trust before it occurred, let alone that he was somehow involved in the decanting of assets. Because Ferri was unaware of the decanting, he could not have taken any affirmative acts or in any way assisted in the dissipation of marital assets. Ferri did not affirmatively engage in the type of intentional waste or selfish impropriety necessary to constitute dissipation. See Gershman v. Gershman , supra, 286 Conn. at 350-51, 943 A.2d 1091 ; see also Ferri v. Powell-Ferri , 317 Conn. 223, 225, 116 A.3d 297 (2015) ("[w]e conclude that this state does not require a party to a dissolution action to take affirmative steps to recover marital assets taken by a third party"). We therefore reject Powell-Ferri's claim that § 25-5 (b) (1) required Ferri to bring an action against the trustees, and, therefore, we conclude that the trial court properly declined to find Ferri in contempt. III Powell-Ferri also claims that the value of the entire 2011 trust, not just the 75 percent that the trial court ordered returned, should have been designated as marital property because Ferri has a chose in action for the entire value of the 1983 trust. The Massachusetts Supreme Judicial Court held that the trustees were authorized to decant all of the assets, and, therefore, none of the 1983 trust is a marital asset. Powell-Ferri argues that even if the trustees acted lawfully and Ferri believes that their actions were in his best interest, he nevertheless has a concrete chose in action for breach of fiduciary duty against the trustees that the trial court should have considered as a marital asset. We disagree. We review the trial court's decision to disregard Powell-Ferri's chose of action claim in fashioning its financial orders for abuse of discretion. See Weinstein v. Weinstein , supra, 280 Conn. at 774-75, 911 A.2d 1077 ; see also Hornung v. Hornung , 323 Conn. 144, 152, 146 A.3d 912 (2016) ( "financial orders in family matters are generally reviewed for an abuse of discretion"). Powell-Ferri does not dispute that the trial court correctly recognized that the 2011 trust was not marital property because it was a spendthrift trust. See Zeoli v. Commissioner of Social Services , supra, 179 Conn. at 88, 425 A.2d 553 ("[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"); Cooley v. Cooley , 32 Conn.App. 152, 169, 628 A.2d 608 (judgment in dissolution action established former spouse's status as judgment creditor), cert. denied, 228 Conn. 901, 634 A.2d 295 (1993). The Massachusetts Supreme Judicial Court determined that the decanting of the 1983 trust was permitted, meaning that virtually all of the trust assets were beyond the trial court's consideration in the dissolution action. Nevertheless, Powell-Ferri asserts that the trial court should have considered the entire 2011 trust as marital property because Ferri had a chose in action against the trustees for breach of fiduciary duty. We are not persuaded. Powell-Ferri fails to establish that Ferri had a chose in action that the court could have distributed. A chose in action can be classified as an intangible property interest subject to distribution under § 46b-81 only if Ferri possessed an existing cause of action for breach of fiduciary duty at the time of dissolution. See Mickey v. Mickey , 292 Conn. 597, 624-25 n.20, 974 A.2d 641 (2009). In general, a claim must have been asserted or commenced in order to be recognized as a chose in action. "A chose in action is not potential or inchoate but rather is an issue that has been the subject of litigation or, at the very least, is in the process of being litigated. Where a putative claim has neither been asserted nor commenced, the person who has the claim can only be said to have a 'potential' chose in action." (Footnote omitted.) 73 C.J.S. 8, Property § 5 (2004). This court has also recognized that when an individual has been given the right to receive a promised benefit under certain prescribed conditions, and is denied that benefit, he or she may have a chose in action in contract. For example, a pensioner who has attained a prescribed age and fulfilled a required number of years of service to the employer would have a chose in action in contract against the employer if the employer refused to pay. Bornemann v. Bornemann , 245 Conn. 508, 517, 752 A.2d 978 (1998). This is because the pension benefits created in their holder an enforceable contract right, and not a mere expectancy. The present case, however, represents an entirely different scenario. Although Ferri became entitled to withdraw an increasing amount of principal from the 1983 trust as he aged, this right was not the product of a contract for which both parties provided consideration. Instead, Ferri's father created the trust for Ferri's benefit and, in doing so, dictated the terms by which Ferri could access the funds. As the Massachusetts Supreme Judicial Court has determined, Ferri's father included a provision allowing the trustees to decant the entire trust at any time, meaning that Ferri could not pursue an action for breach of contract based on the decanting. Furthermore, the trustees were not required to distribute funds unless Ferri, who is the only beneficiary, requested them. He did not. There is no chose of action because the trustees acted lawfully and in Ferri's best interest. Furthermore, Ferri did not assert a claim against the trustees for breach of fiduciary duty, and there is no evidence that he ever intends to do so. Moreover, Powell-Ferri does not point to any evidence that the trustees breached their fiduciary duty to Ferri. The trial court found that "[a]s of yet, there has been no finding of a breach of duty by them, not-withstanding Powell-Ferri's vigorous argument that such a finding has already been made by this court. . There is no specter of harmful conduct imminent or proposed by the trustees." (Citation omitted.) In response, Powell-Ferri gives two reasons why Ferri should bring an action against the trustees for breach of fiduciary duty. Neither is convincing. Powell-Ferri first asserts that the trustees stripped Ferri of a thing of value-namely, his ability to withdraw the principal from the 1983 trust. Powell-Ferri asserts that the decanting was "patently unreasonable because no court would distribute to [her] the entire 1983 trust corpus ." Powell-Ferri claims that, because at the time of decanting Ferri was able to withdraw funds from the 1983 trust, he was objectively worse off after those funds were transferred into the 2011 trust. Powell-Ferri claims that even if the court had awarded her one half of the 1983 trust, as she had requested, Ferri would be better off having unfettered access to the remainder. Powell-Ferri's assertion is contradicted by Ferri's testimony and the parties' use of the 1983 trust throughout the marriage. The trial court found that Ferri declined to challenge the decanting in court because he did not want to bring a civil action against his family, because he thought that the trustees acted in his best interest, and because he did not think that Powell-Ferri should share in any of the assets of the 1983 trust. Furthermore, Ferri envisioned the trust as being for investment purposes. The parties' conduct prior to divorce supports Ferri's assertion. Throughout the course of the marriage, the parties rarely used the 1983 trust assets. Apart from funding a renovation of the marital home and paying the parties' taxes, the 1983 trust was used only for investing in the franchises. There is no evidence that Ferri ever intended to withdraw a substantial portion of the 1983 trust. Powell-Ferri also claims that Ferri has a chose in action because decanting of the trust assets may have exposed him and the trust to substantial tax liability. Powell-Ferri cites numerous tax provisions but presents no evidence that Ferri or the trust has actually incurred such a liability. Furthermore, even if this court was to assume that such a liability existed, Powell-Ferri does not indicate what the amount of that liability would be. If, for example, the tax liability was equal to 49.9 percent of the decanted assets, Ferri could still think that he was better off paying those taxes than if the court granted Powell-Ferri the 50 percent that she sought. Accordingly, we conclude that the trial court did not abuse its discretion in failing to consider the value of the 2011 trust as a marital asset. IV Powell-Ferri also claims that the trial court incorrectly structured the award of attorney's fees in the dissolution action. Specifically, Powell-Ferri asserts that the trial court abused its discretion in fashioning the award of attorney's fees because that award depended on the dollar amount Ferri paid to his own attorneys and ended when Ferri made his first lump sum alimony payment. Powell-Ferri asserts that the trial court's order allowed Ferri to avoid paying any of Powell-Ferri's attorney's fees by not paying his attorneys until after he had made the first lump sum alimony payment. We disagree. The following additional facts are relevant to our resolution of this claim. The trial court found that there were "insufficient funds available for [Powell-Ferri] to pay her fees and costs related to this litigation ." The trial court concluded that requiring Powell-Ferri to bear "these costs would be unduly burdensome and result in an undermining of these financial orders ." Therefore, the trial court ordered Ferri to pay Powell-Ferri's attorneys an amount equal to what he paid his own attorneys. The trial court, however, limited this obligation to the amount Ferri owed his attorney at the time of trial. We begin with the applicable standard of review. "Courts ordinarily award counsel fees in divorce cases so that a party . may not be deprived of [his or] her rights because of lack of funds.... Where, because of other orders, both parties are financially able to pay their own counsel fees they should be permitted to do so.... An exception to the rule . is that an award of attorney's fees is justified even where both parties are financially able to pay their own fees if the failure to make an award would undermine its prior financial orders . Whether to allow counsel fees . and if so in what amount, calls for the exercise of judicial discretion.... An abuse of discretion in granting counsel fees will be found only if [an appellate court] determines that the trial court could not reasonably have concluded as it did." (Internal quotation marks omitted.) Jewett v. Jewett , 265 Conn. 669, 694, 830 A.2d 193 (2003). Powell-Ferri argues that Ferri can easily avoid paying attorney's fees because of the manner in which the trial court structured its award. She contends that, under the trial court's order, all Ferri has to do is not pay his attorneys, or at least wait to pay them until after he makes his first installment of the lump sum alimony. The claim is premised upon the fact that the obligation to pay the plaintiff's attorneys was contingent on what the defendant pays his own attorneys and ends upon the first installment of lump sum alimony. Powell-Ferri maintains that the award defies logic because ir does not correlate to the stated objective and allows the obligor to manipulate his obligation to pay attorney's fees. In the present case, there is no evidence in the record that Ferri has not paid his attorneys or that he will fail to do so in the future. Further, the trial court did not abuse its discretion in determining that payment of some, but not all, of Powell-Ferri's legal costs would not undermine its other orders. Specifically, the trial court awarded Powell-Ferri significant alimony and child support, and required Ferri to pay the cost of the children's private secondary and college educations. Furthermore, the trial court credited evidence establishing that Ferri had incurred substantial expenses as a result of this litigation. Accordingly, we conclude that, in light of all of the other financial orders and the circumstances of the parties in the present case, the trial court's award of attorney's fees did not constitute an abuse of discretion. The judgment is affirmed. In this opinion the other justices concurred. Ferri's appeal from that judgment is the subject of our decision in Ferri v. Powell-Ferri, 326 Conn. 438, 165 A.3d 1137 (2017), which we also release today. General Statutes § 46b-81 provides: "(a) At the time of entering a decree annulling or dissolving a marriage or for legal separation pursuant to a complaint under section 46b-45, the Superior Court may assign to either spouse all or any part of the estate of the other spouse. The court may pass title to real property to either party or to a third person or may order the sale of such real property, without any act by either spouse, when in the judgment of the court it is the proper mode to carry the decree into effect. "(b) A conveyance made pursuant to the decree shall vest title in the purchaser, and shall bind all persons entitled to life estates and remainder interests in the same manner as a sale ordered by the court pursuant to the provisions of section 52-500. When the decree is recorded on the land records in the town where the real property is situated, it shall effect the transfer of the title of such real property as if it were a deed of the party or parties. "(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." General Statutes § 46b-82 provides: "(a) 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. The order may direct that security be given therefor on such terms as the court may deem desirable, including an order pursuant to subsection (b) of this section or an order to either party to contract with a third party for periodic payments or payments contingent on a life to the other party. The court may order that a party obtain life insurance as such security unless such party proves, by a preponderance of the evidence, that such insurance is not available to such party, such party is unable to pay the cost of such insurance or such party is uninsurable. 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. "(b) If the court, following a trial or hearing on the merits, enters an order pursuant to subsection (a) of this section, or section 46b-86, and such order by its terms will terminate only upon the death of either party or the remarriage of the alimony recipient, the court shall articulate with specificity the basis for such order. "(c) Any postjudgment procedure afforded by chapter 906 shall be available to secure the present and future financial interests of a party in connection with a final order for the periodic payment of alimony." Powell-Ferri has been required to pay her own attorney's fees during the pendency of the appeal because this court granted a motion to stay. The termination of this appeal, however, does not end Ferri's obligation to pay attorney's fees pursuant to the original order. As counsel for Ferri conceded in its opposition to the motion for stay, at the conclusion of the appeal, Ferri is obligated to pay Powell-Ferri the amounts owed under the original order even if he paid those amounts to his own attorneys during the appeal. Having successfully defeated Powell-Ferri's motion to terminate stay, he would be judicially estopped from arguing that full payment to his attorneys during the appeal would end his obligation. See Dougan v. Dougan, 301 Conn. 361, 372-73, 21 A.3d 791 (2011).

12490233

Michael J. FERRI, Trustee, et al. v. Nancy POWELL-FERRI et al.

Ferri v. Powell-Ferri

2017-08-08

SC 19432, SC 19433

1137

1149

165 A.3d 1137

165

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

2021-09-08T21:16:17.237805+00:00

Fastcase

Michael J. FERRI, Trustee, et al. v. Nancy POWELL-FERRI et al.

Michael J. FERRI, Trustee, et al. v. Nancy POWELL-FERRI et al. SC 19432, SC 19433 Supreme Court of Connecticut. Argued November 12, 2015 Officially released August 8, 2017 Dominic Fulco III, with whom was John W. Larson, for the appellants and cross appellees in SC 19432, and the appellees in SC 19433 (plaintiffs). Kenneth J. Bartschi, with whom were Karen L. Dowd and, on the brief, Thomas P. Parrino and Laura R. Shattuck, for the appellee an cross appellant in SC 19432, and the appellee in SC 19433 (named defendant). Jeffrey J. Mirman, with whom, on the brief, was Alexa T. Millinger, for the appellant in SC 19433 (defendant Paul John Ferri, Jr.). Palmer, Eveleigh, McDonald, Espinosa and Robinson, Js. This case was originally argued before a panel of this court consisting of Justices Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson. Thereafter, Justice Zarella retired from this court and did not participate in the consideration of the case. The listing of judges reflects their seniority status on this court as of the date of oral argument.

5573

34479

EVELEIGH, J. These appeals arise from a declaratory judgment action filed by the plaintiffs, Michael J. Ferri and Anthony J. Medaglia, who are the trustees of a trust created by Paul John Ferri, Sr., in 1983 (1983 trust) solely for the benefit of his son, the defendant, Paul John Ferri, Jr. (Ferri). Specifically, the plaintiffs sought a judgment declaring that they were authorized to decant certain assets from the 1983 trust and that the named defendant, Nancy Powell-Ferri, had no right, title, or interest in those assets. On appeal, the plaintiffs and Ferri assert, inter alia, that the trial court incorrectly concluded that the plaintiffs did not have authority to decant the 1983 trust because Ferri had a vested and irrevocable interest in its assets. We disagree. In light of the opinion issued by the Massachusetts Supreme Judicial Court in response to this court's certified questions; see Ferri v. Powell-Ferri , 476 Mass. 651, 72 N.E.3d 541 (2017) ; we conclude that, under Massachusetts law, it was proper for the plaintiffs to have decanted assets from the 1983 trust, and, therefore, we reverse the judgment of the trial court on that issue. We also reverse the trial court's award of attorney's fees to Powell-Ferri in this matter. We affirm the judgment of the trial court in all other aspects. The following facts and procedural history are relevant to this appeal. "Powell-Ferri filed an action for dissolution of her marriage to Ferri on October 26, 2010 . Ferri is the sole beneficiary of [the 1983 trust, which was] created by his father, Paul John Ferri, Sr. . The plaintiffs were named as trustees of the 1983 trust. Michael Ferri is Ferri's brother and business partner. "The 1983 trust provides that, after Ferri attained the age of thirty-five, he would have the right to withdraw principal from the trust in increasing percentages depending on his age. In March, 2011, while the underlying dissolution action was pending, the plaintiffs created a second trust whose sole beneficiary was Ferri (2011 trust). The plaintiffs then distributed a substantial portion of the assets in the 1983 trust to the 2011 trust. "Unlike the terms of the 1983 trust, the terms of the 2011 trust do not allow Ferri to withdraw principal. Instead, under the terms of the 2011 trust, the plaintiffs have all of the control and decision-making power as to whether Ferri will receive any of the trust income or assets. "The trial court found that Ferri did not have a role in creating the 2011 trust or decanting any of the assets from the 1983 trust. The trial court further found that it was undisputed that Ferri took no action to recover the trust assets when Michael Ferri informed him of the creation of the 2011 trust and the decanting of the assets. The trial court characterized the reasoning behind this inaction as follows: '[Ferri] does not want to [bring a legal action against] his family . and he believes the [plaintiffs] are acting in his best interest.' "After the plaintiffs created the 2011 trust and transferred the assets from the 1983 trust to it, they instituted the present declaratory judgment action seeking a ruling from the court that they had validly exercised their authority in transferring the assets and that Powell-Ferri had no interest in the 2011 trust assets. Powell-Ferri filed a counterclaim asserting claims of common-law and statutory fraud, civil conspiracy, and seeking a declaratory judgment. After the trial court struck counts alleging fraud and conspiracy, Powell-Ferri filed a second amended counterclaim, later revised, asserting claims of breach of fiduciary duty, breach of loyalty, tortious interference with an expectancy, and seeking a declaratory judgment, as well as [a cross complaint alleging that Ferri had breached his duty to preserve marital assets during the pendency of their marital dissolution action by failing to take any affirmative steps to contest the decanting of certain assets from a trust by the plaintiffs]." (Footnote in original.) Ferri v. Powell-Ferri , 317 Conn. 223, 225-26, 116 A.3d 297 (2015). The trial court agreed with Powell-Ferri that the plaintiffs were not allowed to decant assets from the 1983 trust because Ferri had a vested irrevocable interest in 75 percent of those assets and that, therefore, the 1983 trust document did not authorize the plaintiffs to decant that portion of the trust. The trial court determined that Massachusetts law allowed for decanting, generally, but only if the specific trust language gave the plaintiffs absolute and uncontrolled discretion or an analogous power. The trial court held that the 1983 trust, which granted the plaintiffs the power to "segregate irrevocably," did not encompass the type of absolute power necessary to decant the 1983 trust. Instead, the court held that in construing the "segregate irrevocably" language, it needed to look at the entire context of the trust document. The court decided that because the language "segregate irrevocably for later payment to [Ferri]" was followed by a paragraph stating that the plaintiffs "shall pay to [Ferri] . as he may from time to time request in writing," the 1983 trust made clear that the funds were for payment to Ferri and that the plaintiffs were obligated to pay if and when Ferri requested payment. The trial court further stated that, even though Ferri had not requested a distribution from the 2011 trust, the plaintiffs could avoid paying him under the terms of the 2011 trust, which would frustrate the payment provisions of the 1983 trust. Although the trial court found that the decanting violated the terms of the 1983 trust, it did not order restoration of the entire 1983 trust. Instead it ordered the plaintiffs to restore 75 percent of the assets to the 1983 trust. The court found that, at the time of decanting, Ferri did not have any right to direct, control or receive 25 percent of the trust corpus, and, therefore, the plaintiffs were authorized to decant that portion of the 1983 trust. These appeals followed. On appeal, the plaintiffs and Ferri claim that, under Massachusetts law, the plaintiffs were authorized to decant the entirety of the 1983 trust. Specifically, the plaintiffs and Ferri assert that Massachusetts law allowed the decanting because the terms of the 1983 trust unambiguously granted the plaintiffs such power. The plaintiffs and Ferri further claim that Ferri's unexercised right of withdrawal did not restrict the plaintiffs ability to decant. Next, the plaintiffs and Ferri claim that Powell-Ferri lacked standing to challenge the plaintiffs' actions. Finally, the plaintiffs and Ferri claim that Powell-Ferri was not entitled to an award of attorney's fees. In her cross appeal, Powell-Ferri claims that the trial court improperly refused to remove Michael Ferri from his position as a trustee of the 1983 trust. Powell-Ferri also asserts, as an alternative ground for affirming the judgment of the trial court, that the 2011 trust was effectively self-settled. We address each of these questions in turn. I The resolution of the first issue in this appeal presented a novel issue of Massachusetts trust law-namely, whether the trial court correctly determined that the plaintiffs did not have authority to decant the assets of the 1983 trust. Therefore, we certified the following three questions to the Massachusetts Supreme Judicial Court: (1) "Under Massachusetts law, did the terms of [the 1983 trust] empower [the plaintiffs] to distribute substantially all of its assets . to [the 2011 trust]?" (2) "If the answer to [the first question] is 'no,' should either [75 percent] or [100 percent] of the assets of the 2011 [t]rust be returned to the 1983 [t]rust to restore the status quo prior to the decanting?" (3) "Under Massachusetts law, should a court, in interpreting whether [Paul John Ferri, Sr.] intended to permit decanting to another trust, consider an affidavit [from him], offered to establish what he intended when he created the 1983 [t]rust?" The Massachusetts Supreme Judicial Court answered the first and third questions in the affirmative. Ferri v. Powell-Ferri , supra, 476 Mass. at 663-64, 72 N.E.3d 541. We adopt the Massachusetts Supreme Judicial Court's thorough and well reasoned decision in full. On the basis of that decision, we conclude that the trial court incorrectly determined that the plaintiffs did not have authority to decant the 1983 trust and, accordingly, reverse the judgment of the trial court on that issue. II The plaintiffs and Ferri also claim that the trial court incorrectly concluded that Powell-Ferri had standing to challenge the plaintiffs' actions of decanting the 1983 trust and to assert her counterclaims against the plaintiffs in connection with their actions as trustees. Specifically, the plaintiffs and Ferri claim that, because Powell-Ferri is not a beneficiary of the 1983 trust, she cannot challenge the plaintiffs' actions as trustees. We disagree. The trial court determined that Powell-Ferri had standing to challenge the plaintiffs' actions related to the 1983 trust. The trial court concluded that "[t]he 1983 trust is marital property under Connecticut law. Therefore, [Powell-Ferri] had an inchoate interest in that property, both for itself and for the value it represented in the equitable distribution of the entire estate by and between the parties. That is, in fashioning the orders, the court would be cognizant of the trust value as it apportioned both other assets and as it determined any alimony order that might enter." (Footnote omitted.) We begin by setting forth our standard of review. Although the choice of law provision in the 1983 trust dictates that matters of substance will be analyzed according to Massachusetts law, procedural issues such as the standard of review are governed by Connecticut law. See Montoya v. Montoya , 280 Conn. 605, 612 n.7, 909 A.2d 947 (2006). The issue of standing is also a procedural issue and is, therefore, governed by Connecticut law. People's United Bank v. Kudej , 134 Conn.App. 432, 438, 39 A.3d 1139 (2012) (applying Connecticut law to issue of standing under contract with choice of laws provision indicating that substantive matters should be governed by Massachusetts law). "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. 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 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.) Smith v. Snyder , 267 Conn. 456, 460-61, 839 A.2d 589 (2004). "The issue of standing implicates subject matter jurisdiction . [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.... Because a determination regarding the trial court's subject matter jurisdiction raises a question of law, our review is plenary." May v. Coffey , (Internal quotation marks omitted.) 291 Conn. 106, 113, 967 A.2d 495 (2009). Powell-Ferri did not "set the judicial machinery in motion." Smith v. Snyder , supra, 267 Conn. at 460, 839 A.2d 589. The plaintiffs did that when they filed their declaratory judgment action seeking a post hoc ratification of their decision to decant the 1983 trust. The plaintiffs named Powell-Ferri as a defendant and acknowledged that she claimed an interest in the trust assets. In view of this fact, Powell-Ferri had a right to be heard. See, e.g., Kerrigan v. Commissioner of Public Health , 279 Conn. 447, 450 n.3, 904 A.2d 137 (2006) (noting that parties enjoy "the full panoply of rights" such as right to file brief and to participate in oral argument). While the plaintiffs may have only requested the relief they wanted, once they put the question before the court concerning the validity of their actions, the court had the authority to fashion appropriate relief. See Pamela B. v. Ment , 244 Conn. 296, 308-309, 709 A.2d 1089 (1998). Therefore, we conclude that Powell-Ferri had a right to be heard on the remedy as well. Powell-Ferri has standing to challenge the plaintiffs' actions because their actions regarding the 1983 trust directly affect the dissolution court's ability to make equitable financial orders in the underlying dissolution action. Under Connecticut law, the 1983 trust was a marital asset because Ferri had an absolute right to withdraw up to 75 percent, and later 100 percent, of the principal, which constituted a "sufficiently concrete" right to include the trust assets in the marital estate. Bender v. Bender , 258 Conn. 733, 749, 785 A.2d 197 (2001). Pursuant to General Statutes § 46b-81, the dissolution court had authority to assign any and all of these assets from Ferri to Powell-Ferri. Further, pursuant to General Statutes § 46b-82, the dissolution court had to consider these assets in fashioning alimony. Thus, the trial court's resolution of the declaratory judgment action had a direct impact on Powell-Ferri's rights in the underlying dissolution action. Accordingly, she had a colorable claim of injury, which is all that was required to confer standing to challenge the decanting. Further, the plaintiffs' reliance on the Restatement (Third) of Trusts is unavailing. Specifically, the reporter's note on § 94 of the Restatement (Third) of Trusts, which pertains to the question of standing, explicitly provides that the rule established is "consistent in principle with § 200 of Restatement [ (Second) of Trusts] ." Comment (d) to § 200 of the Restatement (Second) of Trusts, in turn, provides as follows: "A person who has an interest in the subject matter of trust, although he is not a beneficiary of the trust, can maintain a suit against the trustee to prevent injury to his interest in the subject matter of the trust. This is not a suit, however, to enforce the trust. Thus, if the trustee of a term for years threatens to commit waste, the remainderman can maintain a suit to enjoin him." In the present case, it is claimed that the plaintiffs' actions have frustrated Powell-Ferri's equitable claims to a marital asset, namely, the 1983 trust. Therefore, she had the right to take action to protect her interest. Accordingly, we conclude that the trial court correctly determined that Powell-Ferri had standing to challenge the plaintiffs' actions in decanting the 1983 trust and to bring her counterclaim for relief against the plaintiffs. III The plaintiffs and Ferri also challenge the decision of the trial court to award attorney's fees. We declined to certify this issue to the Massachusetts Supreme Judicial Court because it did not present a novel question of Massachusetts law. The plaintiffs and Ferri assert that the trial court mistakenly applied Massachusetts law rather than Connecticut law, and that Connecticut law does not allow for an award of attorney's fees. In the alternative, they claim that, even if Massachusetts law applies, it does not authorize an award of attorney's fees. We conclude that, under the law of either state, the trial court improperly awarded attorney's fees in the present case. We begin with the standard of review applicable to this claim. "This court reviews a trial court's decision to award attorney's fees for an abuse of discretion.... This standard applies to the amount of fees awarded . and also to the trial court's determination of the factual predicate justifying the award.... Under the abuse of discretion standard of review, [w]e will make every reasonable presumption in favor of upholding the trial court's ruling, and only upset it for a manifest abuse of discretion.... [Thus, our] review of such rulings is limited to the questions of whether the trial court correctly applied the law and reasonably could have reached the conclusion that it did." (Citation omitted; internal quotation marks omitted.) Lyme Land Conservation Trust, Inc. v. Platner , 325 Conn. 737, 759, 159 A.3d 666 (2017). First, we disagree with the parties that the resolution of this issue requires us to determine whether Massachusetts or Connecticut law applies. Instead, we conclude that the law of both states on awarding attorney's fees is consistent because both states follow the American rule. As we recently explained, "[w]hen it comes to attorney's fees, Connecticut follows the American Rule.... Pursuant to that rule, attorney's fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception." (Citation omitted; internal quotation marks omitted.) Id., at 759-60, 159 A.3d 666 ; see also ACMAT Corp. v. Greater New York Mutual Ins. Co. , 282 Conn. 576, 582, 923 A.2d 697 (2007). Similarly, "[t]he usual rule in Massachusetts is that the litigant must bear his own expenses . This is the so-called American [r]ule." (Citation omitted; footnote omitted; internal quotation marks omitted.) Wilkinson v. Citation Ins. Co. , 447 Mass. 663, 669, 856 N.E.2d 829 (2006). Both states have few exceptions to the rule; for example, a specific contractual provision or a statute may provide for recovery, and both states allow recovery for bad faith or other egregious conduct. ACMAT Corp. v. Greater New York Mutual Ins. Co. , supra, at 582, 923 A.2d 697 ; Police Commissioner v. Gows , 429 Mass. 14, 17-18, 705 N.E.2d 1126 (1999). In the present case, there was no finding of bad faith or other egregious conduct on the part of the plaintiffs. The trial court applied Massachusetts law to the issue of attorney's fees, relying on In re Estate of King , 455 Mass. 796, 920 N.E.2d 820 (2010), and Massachusetts General Laws c. 215, § 45, to justify its award of fees in the absence of bad faith or egregious conduct. This reliance was misplaced. Although Massachusetts law does contain a statutory exception to the American rule that allows for an award of attorney's fees in the absence of bad faith, this exception applies only to cases originating in a probate court. Under § 45, the Probate Court has discretion to shift fees and costs even if the claims and defenses of the losing party were not wholly insubstantial and frivolous. In In re Estate of King , supra, at 803 n.12, 920 N.E.2d 820, the Massachusetts Supreme Judicial Court "expressly recognized that in this limited context, § 45 gives the Probate Court authority that is not available to the Superior Court . in the exercise [of its equitable] jurisdiction." See also Wong v. Luu , 472 Mass. 208, 220 n.21, 34 N.E.3d 35 (2015) (holding that statute applies only in probate proceedings). In the present case, Powell-Ferri has not demonstrated that the present case qualifies for an exception to the general rule that each party must each bear his or her own expenses of litigation. Accordingly, we conclude that the trial court abused its discretion in awarding attorney's fees. IV Powell-Ferri claims that the trial court abused its discretion in refusing to remove Michael Ferri as a trustee because he has an untenable conflict of interest that compromises his ability to administer the trust. Powell-Ferri claims that, because she has counter-claimed against him for breach of fiduciary duty, and the claim survived the plaintiffs' motion to strike, Michael Ferri is exposed to personal liability if the claim succeeds. Powell-Ferri further claims that the threat of personal liability impairs his ability to execute his fiduciary duty objectively. We disagree. "Whether grounds exist for an executor's removal is a question addressed to the sound discretion of the Probate Court.... On appeal from probate, the trial court may exercise the same discretion de novo, reviewing the facts relating to the propriety of removal without regard to the Probate Court's decision.... Our task, then, is to determine whether the trial court abused its discretion in refusing to remove the defendant as executor of the . estate. "An important aspect of an executor's fiduciary responsibility is the duty to maintain an undivided loyalty to the estate.... [O]ne interested in an estate has the right to have its representative wholly free from conflicting personal interests . When the executor of an estate places itself in a position where its interests conflict with those of the estate, the executor's ability to represent fairly the interests of the estate is irreparably tainted. When [such] a situation appears . it is the positive duty of the court to remove the executor ." (Citations omitted; internal quotation marks omitted.) Ramsdell v. Union Trust Co. , 202 Conn. 57, 65, 519 A.2d 1185 (1987). Powell-Ferri requested that the trial court remove Michael Ferri as a cotrustee of the 2011 trust since she had brought a fiduciary duty counterclaim against him in his capacity as trustee. The trial court, reviewing the record before it, denied the removal request. In so doing, the trial court found as follows: "Such a remedy is not appropriately addressed to the [plaintiffs]. As of yet, there has been no finding of a breach of duty by them, notwithstanding Powell-Ferri's vigorous argument that such a finding has already been made by this court.... There is no specter of harmful conduct imminent or proposed by the [plaintiffs]. These remedies [of removal] are denied." (Citation omitted.) In her cross appeal, Powell-Ferri does not, and cannot, attack that factual finding by the trial court. Rather, she argues that the mere assertion of a cause of action for breach of fiduciary duty against one of the cotrustees gives rise to a remedy of removal of the cotrustee. As the trial court concluded, however, those allegations, without actual proof, do not support removal of a trustee. Furthermore, in light of the Massachusetts Supreme Judicial Court's conclusion that the plaintiffs had the authority to decant the 1983 trust, we cannot conclude that the trial court abused its discretion in failing to remove Michael Ferri as a trustee. V Powell-Ferri asserts, as an alternative ground for affirmance, that, because Ferri was entitled to 75 percent of the trust at the time of the divorce, the 2011 trust was effectively self-settled. We disagree. In support of her claim, Powell-Ferri cites the rule that "[a] trust which names the settlor as a beneficiary is invalid to the extent of the settlor's beneficial interest." In re Brooks , 217 B.R. 98, 103 (Bankr. D. Conn. 1998). The trial court rejected this argument in one sentence, determining that the rule did not apply in this case because Ferri was the settlor of neither the 1983 trust, which was created by his father, nor the 2011 trust, which was created by the plaintiffs. Because resolution of this issue turns on construing trust language and applying legal principles, it is subject to plenary review. Palozie v. Palozie , 283 Conn. 538, 547, 927 A.2d 903 (2007). General principles of Connecticut self-settled trust law, as reflected in Greenwich Trust Co. v. Tyson , 129 Conn. 211, 219, 27 A.2d 166 (1942), illustrate that "[t]he attempt of a man to place his property in trust for his own benefit under limitations similar to those which characterize a spendthrift trust is a departure from the underlying basis for the creation of such trusts." Under Connecticut law, a trust is self-settled if a settlor places his or her assets into trust for his or her own benefit. Id. In the present case, however, there is no dispute that the plaintiffs created the 2011 trust and decanted the 1983 trust assets without informing the beneficiary in advance and without his permission, knowledge, or consent. Because the beneficiary of the 2011 trust had no involvement whatsoever in the creation or funding of the 2011 trust, the trust cannot be self-settled under Connecticut law. Although Powell-Ferri acknowledges that § 3 (1) of the Restatement (Third) of Trusts, defines the settlor as "[t]he person who creates a trust," she notes that comment (a) to that rule recognizes that "[i]n some contexts significant questions may arise concerning the person who is properly to be treated as the settlor of a trust." However, comment (f) to § 58 of the Restatement (Third) of Trusts discusses those "[c]ircumstances in which [a] beneficiary is [the] settlor" and provides in relevant part that, in addition to a situation in which a beneficiary "actually conveyed the property to the trust or executed the trust instrument, or was designated as settlor," a beneficiary also may be deemed to be the settlor if "the beneficiary pay[s] the consideration in return for which another transferred the property to fund the trust." Similar to Connecticut case law, these principles recognizes that a beneficiary can only be deemed to be a settlor of a trust if he or she has some affirmative involvement with the creation or funding of the trust. In the present case, the trial court determined that, although Ferri may have been entitled to withdraw the funds, he was still required to request the moneys from the plaintiffs, which was never done. Therefore, it was proper, as held by the Massachusetts Supreme Judicial Court, for the plaintiffs to have decanted the entire trust. See Ferri v. Powell-Ferri , supra, 476 Mass. at 661-62, 72 N.E.3d 541. In the 2011 trust, any distribution of funds rests in the discretion of the plaintiffs. In light of the trial court's finding that Ferri took no active role in planning, funding, or creating the 2011 trust, we can find no authority for the proposition that it should be considered self-settled. Accordingly, we reject Powell-Ferri's alternative ground for affirmance. The judgment is reversed with respect to the plaintiffs' authority to decant the 1983 trust and the case is remanded with direction to render summary judgment in favor of the plaintiffs on the counts of their complaint seeking a declaratory judgment; the judgment is also reversed with respect to Powell-Ferri's motion for attorney's fees and the case is remanded with direction to deny that motion; the judgment is affirmed in all other respects. In this opinion the other justices concurred. We note that, although Medaglia subsequently resigned from his position as trustee, he remains a plaintiff in the underlying action. On June 11, 2013, the trial court granted a motion seeking to add a new trustee, Maurice T. FitzMaurice, as a party plaintiff. Because the facts underlying this appeal do not involve FitzMaurice, in the interest of simplicity, we refer to Michael Ferri and Medaglia collectively as the plaintiffs and individually by name. "Ferri testified in his deposition that he thought the 1983 trust was worth between $60 and $70 million at some point before this transfer." Ferri v. Powell-Ferri, 317 Conn. 223, 225 n.2, 116 A.3d 297 (2015). The trial court granted summary judgment in favor of Ferri on the cross complaint, which had alleged that Ferri breached his duty to preserve marital assets during the pendency of the dissolution action by failing to take any affirmative steps to contest the decanting. The trial court granted summary judgment on the ground that Powell-Ferri had failed to plead a legally sufficient cause of action, and we affirmed that decision on appeal. Ferri v. Powell-Ferri, supra, 317 Conn. at 226-28, 116 A.3d 297 (2015). The plaintiffs and Ferri appealed, and Powell-Ferri cross appealed, from the judgment of the trial court to the Appellate Court. We then transferred these appeals to this court pursuant to General Statutes § 51-199(c) and Practice Book § 65-1. During the trial, the plaintiffs sought to introduce an affidavit from Paul John Ferri, Sr., declaring that he intended for the plaintiffs to have the power to decant the 1983 trust at any time. He stated that he "intended to give to the [plaintiffs] the specific authority to do whatever he or she believed to be necessary and in the best interest of [Ferri] with respect to the income and principal . notwithstanding any of the other provisions ." The affidavit also stated that, even though the 1983 trust allows for Ferri to request increasing amounts of principal as he aged, the plaintiffs nevertheless could, and indeed should, irrevocably set aside the trust principal if they believed that it was in Ferri's best interest. Powell-Ferri objected to the affidavit as parol evidence and the trial court agreed. Specifically, the trial court found that the affidavit was parol evidence and was not necessary to the disposition of the case because the 1983 trust document was clear and unambiguous. In its decision, the Massachusetts Supreme Judicial Court indicated that it would have been proper for the trial court, pursuant to Massachusetts law, to have considered this affidavit. Ferri v. Powell-Ferri, supra, 476 Mass. at 663, 72 N.E.3d 541. Because this issue was resolved by the Massachusetts Supreme Judicial Court, we need not address it further in this opinion. On appeal, Powell-Ferri also claims that the accounting of the 1983 trust should have included the entire fair market value of the trust. Because the Massachusetts Supreme Judicial Court upheld the decanting, we need not consider this claim. See Ferri v. Powell-Ferri, supra, 476 Mass. at 661-62, 72 N.E.3d 541. Because the Massachusetts Supreme Judicial Court concluded that the plaintiffs had the authority to decant the 1983 trust and we reverse the judgment of the trial court as it relates to that issue, including the order of the trial court requiring the plaintiffs to restore 75 percent of the assets to the 1983 trust, we need not address Powell-Ferri's claim regarding the restoration order. See Ferri v. Powell-Ferri, supra, 476 Mass. at 661-62, 72 N.E.3d 541. In reaching its conclusion, the trial court determined that, because the issue of standing is substantive, the law of Massachusetts was applicable to the determination of standing. We disagree that Massachusetts law governs whether Powell-Ferri had standing to bring her claims in the present case. Therefore, the cases cited by the plaintiffs and Ferri are inapposite to a consideration of standing based on Connecticut law. Powell-Ferri cites cases purporting to establish exceptions to the American rule that authorize an award of attorney's fees in the present case. These cases are inapposite. In the first case, Mangiante v. Niemiec, 98 Conn.App. 567, 568, 910 A.2d 235 (2006), the Appellate Court upheld an award of attorney's fees to a beneficiary who established that a trustee had breached her fiduciary duty. In the present case, Powell-Ferri has failed to establish that the plaintiffs had breached their fiduciary duty. In the second case, Palmer v. Hartford National Bank & Trust Co., 160 Conn. 415, 417-19, 279 A.2d 726 (1971), a few beneficiaries, at their own expense, benefitted an entire class of beneficiaries by successfully restoring assets to a trust. We held that, under the facts presented in that case, the beneficiaries could be awarded attorney's fees from the trust because there was an actual and direct benefit to the trust. Id., at 423-25, 279 A.2d 726. Because the Massachusetts Supreme Judicial Court upheld the decanting, Powell-Ferri ultimately did not restore any assets to the 1983 trust and, thus, provided no benefit to its corpus. Massachusetts General Laws c. 215, § 45, provides in relevant part: "In contested cases before a probate court or before the supreme judicial court on appeal, costs and expenses in the discretion of the court may be awarded to either party, to be paid by the other, or may be awarded to either or both parties to be paid out of the estate which is the subject of the controversy, as justice and equity may require. In any case wherein costs and expenses, or either, may be awarded hereunder to a party, they may be awarded to his counsel or may be apportioned between them...." (Emphasis added.) "Although executors . are not trustees, they occupy a position in many respects analogous [to trustees] ." (Internal quotation marks omitted.) Hall v. Schoenwetter, 239 Conn. 553, 559, 686 A.2d 980 (1996).

12490246

IN RE LUIS N. et al.

In re Luis N.

2017-07-27

AC 39953

1270

1292

165 A.3d 1270

165

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-09-08T21:16:17.237805+00:00

Fastcase

IN RE LUIS N. et al.

IN RE LUIS N. et al. AC 39953 Appellate Court of Connecticut. Argued May 31, 2017 Officially released July 27, 2017 David J. Reich, for the appellant (respondent mother). Frank H. LaMonaca, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Benjamin Zivyon, assistant attorney general, for the appellee (petitioner). Lavine, Prescott and Harper, 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 27, 2017, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

11046

68026

LAVINE, J. The respondent mother, B.F., appeals from the judgments of the trial court terminating her parental rights in her son, L.N., and daughter, M.N. On appeal, the respondent claims that the court (1) violated her right to due process by meeting with the children ex parte, (2) failed timely to canvass her pursuant to In re Yasiel R., (3) erred by concluding that she had failed to rehabilitate to the degree that she could not be restored as a responsible parent within a reasonable time, and (4) erred by finding that it was in the best interests of the children to terminate her parental rights in them. We affirm the judgments of the trial court. In a detailed, 120 page memorandum of decision, the trial court, Rubinow, J. , made the following findings of fact that are relevant to the issues in the present appeal. L.N., who was born in July, 2008, and M.N., who was born in June, 2009, came to the attention of the Department of Children and Families (department) in February, 2011. The children resided with the respondent, but not their father, S.N., who never married the respondent. The respondent was overwhelmed caring for the children, but they remained in her custody until October 11, 2011, when the department removed them pursuant to General Statutes § 17a-101g. On October 21, 2011, the court, Hon. William L. Wollenberg , judge trial referee, sustained the orders of temporary custody and ordered specific steps for the respondent to assist her reunification with the children. On May 31, 2012, the court, Frazzini, J. , adjudicated the children neglected as to the respondent on the ground that they were exposed to conditions injurious to their well-being. The court ordered the children committed to the custody of the petitioner, the Commissioner of Children and Families, and ordered new specific steps for the respondent to facilitate reunification. See General Statutes § 46b-129. On December 12, 2012, the petitioner filed petitions to terminate the respondent's parental rights in the children and amended the petitions on September 6, 2013. The petitioner alleged that the department had made reasonable efforts to locate the respondent and reunify her with the children but that she was unable or unwilling to benefit from reasonable reunification efforts. The petitions also alleged that the respondent had failed to achieve such a degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the ages and needs of the children, she could assume a responsible position in their lives, and that termination of her parental rights was in the best interests of the children. Trial on the termination petitions commenced on November 24, 2014, and continued on approximately sixteen days until August 3, 2016. The court heard from approximately nineteen witnesses. On January 15, 2016, the court appointed Sam Christodlous, an attorney, to serve as guardian ad litem for the children. On January 29, 2016, Judge Rubinow canvassed the respondent in accordance with In re Yasiel R. , 317 Conn. 773, 795, 120 A.3d 1188 (2015). The court found the following facts with respect to the respondent. She was born in 1989 and was herself removed from her mother's care due to neglect. Her grandmother adopted her when the respondent was ten years old. Her family history is significant for mental health issues and alcohol and drug abuse. As a child, the respondent was beaten, raped, and subjected to domestic violence; as an adult, she is troubled by memories of those incidents. In her youth, the respondent suffered from seizures and received mental health counseling. The respondent left high school in the tenth grade and has held occasional and temporary employment at a video game store, an election center, and a barber shop. She found full-time employment at a laundry service in October, 2013. After the department became involved with the family, it referred the respondent for in-home services to address L.N.'s delayed speech and M.N.'s unspecified developmental issues. The respondent also was referred to parenting classes with case management services. Over the next several months, the respondent's participation in those services was inconsistent. Moreover, her mental health deteriorated, she was isolated in her apartment, she and the children were unkempt, and she failed to respond to the children's cues for attention. The respondent had difficulty paying her rent, and a third party with a child was living in her home. The in-home service providers recommended that the respondent receive individual therapy and medication management services. The respondent was referred to Valarie Williams, a licensed psychologist, for a clinical assessment. The respondent's mental health history included bipolar disorder, depression, and post-traumatic stress disorder. She had a history of insomnia, crying spells, poor concentration, mood swings, irritability, aggressive behavior, and poor impulse control. She was taking the medication Klonopin. The respondent had a limited circle of friends and was on probation for robbery in the second degree. Williams diagnosed the respondent with major depressive disorder and post-traumatic stress disorder, and referred her to a psychiatrist. The court found that the respondent had a history of illegal drug use that began when she was thirteen years old. She had a pattern of using illegal drugs, participating in treatment, remaining drug free for a time, and relapsing, a pattern that persisted during the termination proceedings and when the respondent was caring for her youngest child, E.T. The department referred the respondent to Catholic Charities' Institute for the Hispanic Family for drug screening and evaluation. When the respondent was evicted from her home in the fall of 2011, the department removed the children from her care. Although the respondent was homeless for months, she continued to receive department sponsored services and had supervised visits with the children twice a week. Throughout the first six months of 2012, the respondent tested positive for marijuana and cocaine. Williams discharged the respondent from individual counseling in June, 2012, because she failed to attend scheduled therapy sessions and to consult a psychiatrist, as recommended. In June, 2012, Bruce Freedman, a licensed psychologist, conducted a court-ordered psychological evaluation of the respondent, which included an assessment of her interaction with the children. Freedman determined that the respondent's intelligence is at the low end of the average range. In September, 2012, the respondent was referred to Community Renewal Team to address her mood instability, post-traumatic stress disorder, and marijuana use. By December, 2012, the respondent was living with V.G., a man with a criminal history involving crimes of violence, including risk of injury to a child. V.G. physically abused the respondent. The department recommended that the respondent engage in domestic violence prevention services, but she refused. In January, 2013, the respondent was evicted from the apartment she shared with V.G. and continued to test positive for marijuana use. Community Renewal Team discharged her from its services and referred her to the Institute of Living. The court found no evidence that the respondent availed herself of the referral to the Institute of Living. During the summer of 2013, the respondent was enrolled in anger management, domestic violence, and parent education programs at the Family Intervention Center. By September, 2013, she had attended a three day per week, three hour per day program where her substance abuse issues were to have been addressed. The respondent, however, did not complete the domestic violence and anger management programs, nor did she engage in the follow-up after substance-abuse relapse prevention program or individual counseling that were recommended to her. The respondent had been employed by a salon to cut hair, but in October, 2013, with help from her cousin, she obtained employment at a laundry service in another community, where a man, L.T., was employed. The respondent worked from 7 a.m. until 3 p.m., Monday through Thursday, and therefore she claimed that she was unable to participate in services offered by the department. In late December, 2013, Freedman conducted a second court-ordered psychological evaluation of the respondent, which also included an assessment of her interaction with the children. As of January, 2014, the respondent was still using illegal drugs and admitted to smoking seven to eight blunts per day. In March, 2014, the respondent moved to the community where the laundry service was located to live with L.T. in a two bedroom apartment she had obtained with the assistance of a cousin and her grandmother. Although she was no longer receiving counseling, the department provided her with supervised visits with the children. In August, 2014, the respondent became pregnant with her third child. In response to advice she received from her prenatal care provider, the respondent went to Perspectives Counseling Center and stated that she needed counseling. She reported a history of sexual abuse, physical abuse, domestic violence, counseling, psychotropic medication, and criminal activity. She also reported that she was in a domestic relationship with L.T., whom she described as being good and supportive. Perspectives Counseling Center diagnosed her with a major depressive disorder and recommended that she engage in individual and group therapy. Despite telling her service provider and the department that she had stopped using illegal drugs as of January, 2014, the court found that drug tests indicated that in November, 2014, while she was pregnant, the respondent tested positive for marijuana use. She tested positive for cocaine use in December, 2014, and marijuana use in January, 2015. In February, 2015, the respondent returned to her hometown with L.T., after she had obtained a subsidized two bedroom apartment. The department referred the respondent to the Wheeler Clinic for substance abuse and mental health evaluations. Due to her pregnancy, the respondent was put on bed rest in March, 2015, and did not engage the recommended services at Wheeler Clinic. In April, 2015, the respondent gave birth to a son, E.T. Because the respondent used illegal drugs during her pregnancy, the department became involved with the "new" family and filed a neglect petition on behalf of E.T., who remained in the custody of the respondent and L.T. The respondent's family and L.T.'s family helped care for E.T. During the last phase of her pregnancy and after E.T. was born, the department transported L.N. and M.N. to visit the respondent in her home once a week. The court found that, under supervision, the respondent gave appropriate attention to all three of her children. In May, 2015, the department referred the respondent to relapse prevention with Catholic Charities, but she did not utilize those services until November, 2015. On her own initiative, however, the respondent returned to Williams for individual counseling. She admitted that she used cocaine and marijuana in October, 2015, when she was E.T.'s legal guardian. Hair segment analysis on December 21, 2015, demonstrated that the respondent recently had used both cocaine and marijuana. The respondent continued to test positive for cocaine and marijuana in 2016, but her segmented hair analyses conducted on July 28, 2016, demonstrated that she had been drug free for approximately six months. By January 13, 2016, L.T. was no longer living with the respondent in her subsidized housing. She claimed, however, that he continued to coparent E.T. On January 14, 2016, pursuant to a motion filed by the petitioner, the court, Woods, J. , ordered that E.T. be moved from protective supervision to committed status. The respondent had regular supervised visits with the children since they were removed from her home in October, 2011. The court found that the visits were cordial, involving physical activities, watching movies, or using a computer to access child appropriate websites. The respondent always brought food, toys, or an activity to the visits, and neither L.N. nor M.N. wanted her to leave when the visits ended. The respondent knew the location of the school the children attended, but she did not understand the nature or extent of their special education or behavioral health needs. She believed that she could provide adequate parental care for L.N. and M.N., even though she was also responsible for E.T., because the baby slept most of the time. In its memorandum of decision, the court set forth the elements of General Statutes § 17a-112 (j), which the petitioner was required to prove by clear and convincing evidence to prevail on the petitions to terminate the respondent's parental rights in L.N. and M.N. The court found by clear and convincing evidence that the department had made reasonable reunification efforts for the respondent during the adjudicatory period and that she was unable or unwilling to benefit from reunification efforts offered by the department. The court also found that the petitioner had demonstrated by clear and convincing evidence that the respondent had failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and specialized needs of the children, she could assume a responsible position in their lives. The respondent's failure to achieve statutory rehabilitation, the court found, was clearly and consistently evident from her pattern of recurrent substance abuse. Although the respondent participated to varying degrees in numerous services and counseling offered, she consistently returned to using cocaine and marijuana after treatment. The court found that the use of such drugs, whether in response to stress or for recreational purposes, was highly inconsistent with a parent's ability to provide safe, reliable, and consistent parenting in order to assume a responsible position in the lives of L.N. and M.N. The respondent's pattern of treatment, abstinence, and relapse was particularly evident from 2011 to 2015, and throughout the termination of parental rights proceedings. The court acknowledged that in late 2015, after returning to individual counseling with Williams, the respondent reentered substance abuse treatment at Catholic Charities and at the conclusion of evidence in the termination of parental rights trial, the respondent was no longer using illegal drugs. The evidence was insufficient, however, for the court to conclude that the respondent had acquired the necessary skills to maintain abstinence. Her sobriety at the time was too fragile, too untested, and too unreliable for the court to infer that the respondent had developed the internal resources to ensure that she would put the needs of L.N. and M.N. above her own. The court also found that even if, in 2016, the respondent was better able to manage her own life, her progress was modest and had to be viewed in the context of a parent whose children were removed from her care due to her recurrent drug use. The court noted the respondent's return to individual counseling, but also noted her failure to disclose information about her personal and parental instability, which was likely to lead to relapse. The court stated that the respondent had not achieved a degree of insight into her proclivity to relapse when faced with stress, as would encourage the belief that she was even capable of learning to fulfil a responsible role in the lives of L.N. and M.N. The court concluded that even if, by the first half of 2016, the respondent had made some progress in recovering from drug abuse and improving her parenting skills, "those efforts were too little and too late" to meet the general or particular needs of the children. With respect to the children, the court found that L.N. and M.N., were eight and seven years old, respectively, in 2016. Both of them have extraordinary specialized needs that require consistent, reliable attention from an alert and available parent figure to ensure that their emotional, educational, medical, and physical needs are addressed properly. Although the respondent has expressed love and affection for the children, the evidence clearly and convincingly established that since they entered foster care, the respondent rarely expressed concern over their health, education, and general well-being as would be expected of a parent. She provided the children with food and clothing on occasion, but she had not provided them with medical care or an adequate domicile since 2011. In making its findings and coming to its conclusions, the court considered the respondent's complex circumstances, including her involvement with men who were not stable or responsible enough to remain a part of her household. In view of the respondent's repeated relapses into illegal drug use, which is incompatible with the need for safe custody of school-age children, and given the need for the department to intervene to keep E.T. safe when the respondent had no responsibilities to care for L.N. and M.N., the court found that even if the respondent is capable of caring for E.T., her progress has been too little too late for L.N. and M.N. After finding that the respondent had failed to rehabilitate, the court turned to the dispositional phase of the proceedings to consider the best interests of the children. The court considered the children's present needs for sustained growth, healthy development, well-being, stability, and continuity of their environment, along with their need for consistent, structured care by a responsible parent figure ready, willing, and able to address their needs. The children have lived together in the same foster home since their earliest years. They enjoy their visits with the respondent and E.T. Given the children's ages and stages of development, and their particular educational and emotional needs, the court concluded that to allow more time for the respondent to become able and willing to provide predictably safe, reliable, and attentive custodial care for the children would unreasonably relegate their best interests to a level of uncertainty, without a valid basis for determining that reunification with the respondent can practically be achieved within a reasonable time. Further delay in the termination of parental rights proceeding would unduly interfere with the children's access to a permanent placement that will enhance their opportunities for healthy human growth. The court stated that it had balanced the respondent's constitutionally protected relationship to L.N. and M.N. against the children's respective needs for permanency, security, safety, the opportunity for healthy growth, and consistency in environment. The court made the following findings as required by § 17a-112 (k). The reunification services the department provided to the respondent and the children were timely and appropriate. The respondent, however, was not able to improve her ability to serve as a safe, effective parent to the children pursuant to the steps ordered for her. L.N. was three years old at the time the department removed him from the respondent's care and eight years old at the conclusion of the termination proceedings. M.N. was two years old when she was removed from the respondent's care and seven years old when the termination proceedings ended. The court also found that the children were bonded to one another. They know that the respondent is their biological mother even though they have lived in foster care since October, 2011. The children's emotional ties to the respondent are based on the regular visits they have had with her since 2011. L.N. loves the respondent and is attached to her and E.T. M.N. loves the respondent, but she sometimes indicates that she wishes to spend time alone with the respondent without L.N. Generally, both of the children do not want to leave the respondent at the conclusion of a visit and have expressed a desire to return to her custody. Neither child, however, looks to the respondent for "environmental" support. The children have lived with their foster mother since October, 2011, and have close emotional ties to her and are bonded to her biological children. The children also have emotional ties to the foster mother's domestic partner, whose schedule permits him to take the children to services from time to time, while the foster mother works as a certified medical technician. Although the respondent has limited financial resources, her economic circumstances have not prevented her from maintaining a meaningful relationship with either child. The court found that the respondent had lawful employment at a laundry service and benefitted from subsidized housing. The respondent's decisions about her personal life and her inability or unwillingness to benefit from reunification efforts, not economic factors, impeded her ability to develop a meaningful, parent-like relationship with the children. The respondent argued that the children's foster mother impeded her relationship with the children due to the foster mother's inability or unwillingness to give the children appropriate attention or to attend parent counseling at Klingberg Family Centers. The respondent also claims that the foster mother did not ensure that L.N. consistently attended counseling and that M.N. consistently attended therapy. The court did not condone the foster mother's inconsistency in transporting the children to counseling, but it found that her conduct did not prevent the respondent from maintaining a meaningful relationship with the children. The court credited the testimony of the guardian ad litem, Christodlous, that the foster mother attempted to involve the respondent in the children's activities, such as birthday parties. In coming to its conclusion as to the best interests of the children, the court considered their specialized needs in the context of the respondent's response to reunification efforts and her failure to rehabilitate. The court fully credited Christodlous' opinion that termination was in the best interests of the children, which was founded on what the court described as his thorough investigation of the children's and the respondent's circumstances. The court found by clear and convincing evidence that the respondent had not reached the point where she could, on a daily basis, meet the best interests of either L.N. or M.N. On November 15, 2016, the court issued a memorandum of decision in which it terminated the parental rights of the respondent in the children. The court, Vitale, J. , granted the respondent's application for the waiver of fees to appeal. The respondent thereafter appealed. Before addressing the respondent's claims on appeal, we review the legal framework for deciding termination of parental rights petitions. "[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.... If the trial court determines that a statutory ground for termination exists, then it proceeds to the dispositional phase. During the dispositional phase, the trial court must determine whether termination is in the best interests of the child." (Internal quotation marks omitted.) In re Elijah G.-R. , 167 Conn.App. 1, 18-19, 142 A.3d 482 (2016). I The respondent first claims that the court improperly considered evidence it gleaned from its ex parte meeting with the children without utilizing the due process protections that are required by Practice Book § 32a-4 and our case law. We disagree. The respondent's claim arises from the following facts and procedural history. In January, 2016, the respondent and S.N. expressed an interest in having L.N. and M.N. testify at the termination of parental rights trial, but they wanted to protect the children from cross-examination. Pursuant to Practice Book § 32a-4 (b), they filed a joint motion requesting permission for the children to testify, arguing that the children, ages six and seven years old at the time, were parties to the termination proceedings and should be permitted to testify on their own behalf. The respondent and S.N. represented that during their respective visits with the children, the children expressed a desire to live with the parent with whom they were visiting at the time. The respondent and S.N. argued that the children's testimony was crucial in determining the best interests of the children and, therefore, relevant. On January 15, 2016, before the court ruled on the motion, Alina Bricklin-Goldstein, attorney for the children, filed a motion for the appointment of a guardian ad litem. Counsel for the petitioner, respondent, and S.N. did not object to the motion, which the court granted. Christodlous was appointed guardian ad litem for the children. The joint motion for the children to testify came before the court on March 18, 2016. Before ruling on the motion, the court described the children as "very young" and, in lieu of testimony, offered to invite the children to come to the courthouse to see the courtroom's physical structure; to meet the court reporter, the marshal, the clerk, and the judge; and to spend time on the bench. The court, however, would not hear the children testify, concluding that it was not in the best interests of the children to put them in the position where they were either subject to cross-examination or where they could infer that something that they said could determine the outcome. The court stated that it would not ask the children whether they want to live with their father or their mother, as it would find no value from any answer either of the children might give. The court asked Christodlous whether he knew the children well enough to have an opinion as to whether they would benefit from an opportunity to visit the court. Christodlous stated that he thought that he knew the children well enough and: "I think because the children so much want to see what happens in this court, I don't think they should necessarily be here during the hearing, but I do think [it would] be very beneficial for them to come in, see the courtroom, meet Your Honor, too.... [T]hey understand through their lawyer that Your Honor makes the decision, no one else does. They've got a good relationship with [Bricklin-Goldstein], but I do think it would be very beneficial for them to be able to come into the courthouse to see the courtroom, to see what Your Honor does, to see who you are, those kinds of things." He also opined that it would be beneficial for the children if he and Bricklin-Goldstein were present, but he did not think that the respondent and S.N. should be present. The following colloquy between the court and Christodlous transpired: "The Court: If the court inquired of the children only as to whether they had any questions for the court, do you think that would suffice in franchising them with regard to this process without infringing upon what should be, at their ages and stages of development, as innocent as is practicable, a perception of reality? "Attorney Christodlous: I think so. I can't give [a] 100 percent answer on that, but I think so yes, Your Honor. "The Court: Do you know of any therapeutic basis why the-either child should not be allowed to come into the courtroom and see what's going on here? "Attorney Christodlous: I do not, and I personally believe it would be beneficial for them to be here." Bricklin-Goldstein stated that coming to the courtroom would be a great experience for the children. Counsel for the respondent and S.N. stated that their clients were satisfied with the procedure the court outlined. The court inquired of the assistant attorney general, Frank H. LaMonaca, whether the department could bring the children to court at 9 a.m. on April 27, 2016. LaMonaca suggested that the foster mother could bring the children to court. The court declined to permit the foster mother to bring the children to court. The court ordered the department to produce the children at the courthouse on April 27, 2016, and to take them to the juvenile clerk's office where they could be brought to the courtroom by the clerk with the assistance of Bricklin-Goldstein and Christodlous. The judge would be present at 9 a.m. on that date. The court further stated that it was "the court's expectation that the children . will not be subject to a recording process; this is not an opportunity for them to give testimony. If they do have a question for the court, Mr. Christodlous will be here, and I hope you will accept his explication of and response [to] what it is they asked, or what it is they had to say. In the event that they should create any drawings, as sometimes happens when kids are in court and are faced with a great big desk like this and see pens and paper on it, the court will, of course, save them and make them available to counsel. But, I do not expect to obtain any testimony. They won't be subject to cross-examination. So, even if they should say something, they won't be under oath, and it will not be evidence. Is that satisfactory?" No counsel objected. The court met with the children in the courthouse on April 27, 2016. When court reconvened later that morning, the court stated on the record: "Counsel, before court commenced today in resolution of the motions for child testimony that had been filed, the court had made arrangements to meet with the children so they would have the opportunity, as you all had agreed, to get to know the court, to understand that the court and the court alone would be making the decision in this case and to observe the facilities, particularly the courtroom in which the case has been ongoing for so many years. "This court had the opportunity to observe the children interacting with court staff at the child protection clerk's office. This court had the opportunity to observe the children interacting with court staff and with the [department] visitation supervisor who was present at the request, I understand, of the children's counsel and their guardian ad litem during this process. Several spontaneous comments were made by the children, by [L.N.] in particular. I will repeat them only if you request, but before I do so, there was in the presence of the court, but not on the record, and the marshal was also present and the marshal trainee was also present as was the clerk. I believe the monitor was still in the room as well. "There was an inquiry of the children related to the children's desired outcome in these proceedings presented by an individual notwithstanding any orders that had been issued by the court previously to enhance the court's opportunity to see the children in as neutral a setting as possible, and the goal, again, was to enhance the children's understanding that the court and the court alone would be making decisions in this case. I believe . Christodlous could summarize that which occurred.... I don't attribute any intent on any party. "Attorney Christodlous: The children made some statements which the [department] visitation supervisor did not believe Your Honor heard and repeated them, the statement directly to Your Honor. He felt-he was thinking he was assisting, did not [intend] any harm, but he did repeat the statements, which the children had made, and I do not know whether Your Honor had heard the statements initially made by the children, but he repeated [them], and I'm quite clear Your Honor heard what he said . because Your Honor indicated to him that you did not want to hear from him. "The Court: The court did hear all of the comments that were made by the children in the courtroom. Their visit in this courtroom was directed at achieving the one goal I identified, so that they would see the courtroom, have the opportunity to observe the facilities, and understand the environment in which the case is being tried. This court made no inquiry of the children as to what they desire. To the extent the court now has had the opportunity to observe the children, if that is not a part-their behavior and their demeanor is not a part of the report by the guardian ad litem at the appropriate time during the case, and I rather expect it will be, I will bring to your attention then that which I observed. I can do that now if you'd like, but my goal was not to acquire evidence for the use in the case. That's what . Christodlous' presence . at the visit to the courtroom was for, so he can [be] cross-examined. "It is not that the court attributes no value to what the children said, the court does not know enough about these children to place their comments in any context one way or another. [There have] been sufficient concerns raised throughout the course of the evidence concerning the status of the children and supported by the court's observation of their behavior and demeanor today both in the child protection clerk's office and in the courtroom." The court then directed Christodlous to consider and investigate the children's best interests and to inform the court of his opinion regarding the nature, type, and scope of a placement environment to address the best interests of each child in sustained growth, development, well-being, continuity, stability, and conduct as they grow into their preteen and teenage years that will most likely lead to their success in the community. Christodlous agreed to do so. The court then asked whether anyone needed to hear further from the court regarding its observations of the children. All counsel responded in the negative. On August 3, 2016, Christodlous testified, in relevant part, as follows: "I . met with the children on six separate occasions. I met with them at both parents' homes, at the foster parent's home, the school, and of course, here in the court. I have had an opportunity to sit down and talk to the children as well as [department personnel] and the [children's] attorney. I've also discussed this matter with all the attorneys involved in this matter. I have reviewed all the records that were-the exhibits which were in the court file. And again, I did read all the transcripts and prepare that way. I listened to testimony while here on the case since I was appointed, and I had questions which were asked on my behalf by other parties in this matter when they came up.... "[T]he only time the children were in the courtroom, one of the children actually changed what she had said earlier to her attorney in my presence. And what she had said the last time we were here was that she would be willing to stay with her foster mom or go back to her parents. I did take that as a sign that she has become quite comfortable at her foster [parent's], which supports what I saw when I was there." On cross-examination by the respondent's counsel, Christodlous testified that M.N. once had expressed that she wished to live with the respondent, but she also stated that she would be happy to stay with her foster mother. M.N.'s statement about staying with her foster mother was made when she was in the courthouse. On January 25, 2017, after Judge Rubinow had issued her memorandum of decision, the respondent filed a motion for articulation in which she asked the court "to articulate the legal and factual details of [the court's] April 27, 2016 meeting with the two children who are the subject of this termination proceeding." The petitioner objected to the motion for articulation. On February 23, 2017, the court, Olear, J. , responded to the motion for articulation, noting that Judge Rubinow had retired as a judge of the Superior Court on November 16, 2016. Judge Olear declined to hold a hearing on the respondent's motion as a hearing would not provide any information that would be sufficient to permit the court to respond to the motion for articulation. Judge Olear denied the motion for articulation. A The respondent claims that the court considered evidence it gleaned from its ex parte meeting with the children in terminating her parental rights in them, thereby violating her constitutional right to due process. The respondent did not preserve this claim at trial and seeks to prevail under State v. Golding , 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We will review the claim because the record is adequate for review and the claim is of constitutional magnitude. See In re Tayler F. , 296 Conn. 524, 553, 995 A.2d 611 (2010) (right to confrontation and cross-examination in civil action grounded in due process clauses of fifth and fourteenth amendments). The respondent cannot prevail, however, because she has (1) not identified what, if any, evidence in the court's memorandum of decision was not presented during the termination trial and (2) failed to identify any facts found by the court, in either the adjudicatory or dispositional phase of the trial, that are clearly erroneous. See Manaker v. Manaker , 11 Conn.App. 653, 656-57, 528 A.2d 1170 (1987) (judge able to disregard evidence not properly admitted). In other words, the petitioner has demonstrated that the claimed error, if any, was harmless. B The respondent also claims that it was plain error for the court to consider evidence it gleaned from its ex parte meeting with the children. The respondent cannot prevail under the plain error doctrine for the same reasons that she cannot prevail pursuant to State v. Golding , supra, 213 Conn. at 239-40, 567 A.2d 823. See part I A of this opinion. The respondent has not challenged the trial court's findings that the department made reasonable efforts to reunite her with the children or that she failed to make sufficient progress toward the fundamental treatment goal of being a safe and nurturing parent for the children, and, therefore, failed to achieve a sufficient degree of personal rehabilitation. She also has failed to identify any clearly erroneous factual finding relevant to the court's determination that termination is in the best interests of the children. In other words, the respondent has failed to demonstrate harm and that failure to reverse the judgments terminating her rights in L.N. and M.N. would result in manifest injustice. See In re Sydnei V. , 168 Conn.App. 538, 563-64, 147 A.3d 147, cert. denied, 324 Conn. 903, 151 A.3d 1289 (2016) (party claiming plain error must demonstrate error clear, obvious, and indisputable). Although the respondent did not have the opportunity to cross-examine the children and the department visitation supervisor immediately after meeting with the children, the court stated on the record what had transpired during the meeting and inquired of the respondent and others whether they wished further explanation. All counsel declined further explanation by the court. Moreover, the court instructed Christodlous to report what transpired at the meeting, including the spontaneous comment made by one of the children that was repeated by the department visitation supervisor. The respondent was given an opportunity and did cross-examine Christodlous. The respondent failed to identify any evidence the court relied upon that was not presented at trial. The respondent, therefore, cannot prevail under the plain error doctrine. II The respondent's second claim is that the court violated her right to due process because, although it canvassed her pursuant to In re Yasiel R. , supra, 317 Conn. at 773, 120 A.3d 1188 ( Yasiel canvass), it did so after the termination of parental rights trial had begun, and it failed to inform her that the canvass is to be given at the start of trial. The claim lacks merit. The fallacy in the respondent's claim is illustrated by the following timeline. Trial on the petitions to terminate the respondent's parental rights in L.N. and M.N. commenced on November 24, 2014. Our Supreme Court issued its decision in In re Yasiel R. , supra, on August 18, 2015 ; id., at 774, 120 A.3d 1188 ; more than eight months after trial commenced. The court could not possibly have canvassed her prior to trial because the requirement did not then exist. There is no dispute, however, that the court canvassed the respondent in accord with In re Yasiel R. , on January 29, 2016. The respondent claims that the canvass was defective because the court did not inform her that the canvass is to be administered before trial started. The respondent's claim does not rise to the level of a due process violation. We briefly review the history of our Supreme Court's supervisory order regarding the Yasiel canvass. Our Supreme Court exercised its supervisory authority; see Practice Book § 60-2 ; "to require that a trial court canvass a parent who does not consent to the termination prior to the start of a termination of parental rights trial, in order to ensure the overall fairness of the termination of parental rights process." In re Yasiel R. , supra, 317 Conn. at 776, 120 A.3d 1188. The "procedural safeguard requiring that a trial court canvass a parent prior to a termination of parental rights trial does not substantially decrease any risk of erroneous deprivation of her right to family integrity. When the respondent is represented by counsel, the current procedures in place adequately protect the respondent from any claimed constitutional deficiencies." Id., at 785, 120 A.3d 1188. Our Supreme Court held that a respondent who was represented by counsel was not constitutionally entitled to a canvass regarding her trial counsel's strategy. Id., at 793, 120 A.3d 1188. Nonetheless, the court recognized "that the lack of a canvass of all parents in a parental rights termination trial may give the appearance of unfairness insofar as it may indicate a lack of concern over a parent's rights and understanding of the consequences of the proceeding. Therefore, [it] conclude[d] that public confidence in the integrity of the judicial system would be enhanced by a rule requiring a brief canvass of all parents immediately before a parental rights termination trial so as to ensure that the parents understand the trial process, their rights during the trial and the potential consequences." Id., at 793-94, 120 A.3d 1188. In issuing that order, our Supreme Court stated that it was "not convinced that the trial court's failure to canvass the respondent constituted a denial of her right to due process under the fourteenth amendment to the United States constitution." Id., at 776, 120 A.3d 1188. The respondent argues that the court should have told her that the canvass was to be given before trial. We disagree and note that several decisions of this court have held that failure to give the Yasiel canvass prior to trial does not require reversal of the judgment terminating parental rights. See In re Sydnei V. , supra, 168 Conn.App. at 557, 147 A.3d 147 (court failed to canvass respondent); In re Elijah G.-R. , supra, 167 Conn.App. at 7, 142 A.3d 482 (respondent canvassed after evidence but before judgment rendered); In re Raymond B. , 166 Conn.App. 856, 863, 142 A.3d 475 (2016) (respondent canvassed on second day of trial); In re Leilah W. , 166 Conn.App. 48, 58, 141 A.3d 1000 (2016) (respondent canvassed after evidence concluded but before judgment rendered). Unlike the present case, trials in those cases, except In re Elijah G.-R. , commenced after our Supreme Court issued In re Yasiel R. "Although there were some differences in the way in which the canvasses were conducted in those cases, this court concluded that the stated purpose underlying the Yasiel canvass was met even though the respondents were not canvassed prior to the termination trial. In coming to that conclusion in each case, this court considered the factors the Yasiel canvass was intended to address and the actual trials of the subject cases. This court found . that on appeal, the respondents failed to explain how they were harmed by the timing of the Yasiel canvass, whether they would have moved for a new trial or asked that the evidence be opened and what additional evidence they might offer that would have made a difference in the trial. The respondents in each case argued only that the timing of the canvass itself was harmful.... Although the trial court in the present case did not canvass the respondent, she has failed to explain what she did not know or understand about the termination of her parental rights without the court's canvass. She has not explained what she would have done differently if the court had canvassed her and how the outcome of the case would be different. In other words, the respondent has failed to explain how the court's failure to canvass her was harmful per se." (Citation omitted; footnote omitted.) In re Sydnei V. , supra, 168 Conn.App. at 567-68, 147 A.3d 147. The respondent argues that the court failed to inform her that she could have requested a mistrial or reopened the evidence because the court did not inform her that the canvass was to be given before trial began. The argument defies logic; the Yasiel canvass did not exist before the respondent's trial began. Just like the respondent in In re Sydnei V. , supra, 168 Conn.App. at 567-68, 147 A.3d 147, the respondent has failed to demonstrate how she was harmed per se by the timing of the Yasiel canvass and what she would have done differently if the court had canvassed her before trial began. The respondent has not pointed to any aspect of the court's canvass that was not otherwise in keeping with In re Yasiel R. Moreover, the respondent exercised all of the rights articulated by the Yasiel canvass, i.e., she was represented by counsel, she testified on her own behalf, and she cross-examined witnesses. The respondent's claim, therefore, fails. III The respondent's third claim is that the court could not reasonably have concluded that there was clear and convincing evidence that she had failed to rehabilitate to the degree that she could not be restored as a responsible parent within a reasonable time. We do not agree. "The 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." (Internal quotation marks omitted.) In re Shane M. , 318 Conn. 569, 585, 122 A.3d 1247 (2015). "The statute does not require [a parent] to prove precisely when [she] will be able to assume a responsible position in [her] child's life. Nor does it require [her] to prove that [she] will be able to assume full responsibility for [her] child, unaided by available support systems. It requires the court to find, by clear and convincing evidence, that the level of rehabilitation [she] has achieved, if any, falls short of that which would reasonably encourage a belief that at some future date [she] can assume a responsible position in [her] child's life.... In addition, [i]n determining whether a parent has achieved sufficient personal rehabilitation, a court may consider whether the parent has corrected the factors that led to the initial commitment, regardless of whether those factors were included in specific expectations ordered by the court or imposed by the department." (Citation omitted; internal quotation marks omitted.) Id., at 585-86, 122 A.3d 1247. A court's conclusion that a parent has failed 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)." (Emphasis in original.) Id., at 587-88, 122 A.3d 1247. Our review of the court's ultimate conclusion "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." Id., at 588, 122 A.3d 1247. The respondent claims that there is insufficient evidence by which the court could have concluded that she had "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 ." General Statutes § 17a-112 (j) (3) (B). She does not, however, claim that any of the court's underlying factual findings are clearly erroneous, which is significant because the court's factual findings form the basis of its conclusion that the respondent has failed to rehabilitate. In her appellate brief, the respondent emphasizes the relationship that she has with the children, but she does not mention the reasons the children were removed from her care. She did not discuss her mental health issues, her history of substance abuse, and her lack of good judgment with respect to male partners. She offered no explanation for her failure to engage fully in many of the services offered by the department. The court's memorandum of decision contains a detailed history of the respondent's pattern of substance abuse, including her use of illegal drugs during the termination proceedings despite the specific step to refrain from that activity. The court found that the respondent never came to appreciate the negative effect the use of marijuana had on her capacity to meet the needs of the children, to keep them safe, or, in fact, to keep herself safe. Although the respondent achieved a period of sobriety for approximately six months prior to the end of the trial, the court concluded that the respondent's sobriety was too fragile and untested to lead to the conclusion that she would be able to care for the special needs of L.N. and M.N. within a reasonable time. On the basis of our review of the record, we conclude that there is clear and convincing evidence to support the court's conclusion that the respondent failed to rehabilitate. The court acknowledged the respondent's love for L.N. and M.N., her desire for reunification, and her wish to have the children live with her and E.T. We agree with the court that the respondent's desires, however sincere, are insufficient to sustain the children and to provide them with a safe, secure, and permanent environment. See In re Sydnei V. , supra, 168 Conn.App. at 548-49, 147 A.3d 147. The court aptly stated that, even if the respondent is able to care for E.T. and has improved her parenting skills, that progress is too little and too late for the children who are the subject of the present termination of parental rights petitions. We, therefore, disagree that there is insufficient evidence to support the court's conclusion that the respondent failed to achieve sufficient personal rehabilitation so as to encourage the belief that she can assume a responsible position in the lives of the children within a reasonable time. IV The respondent's last claim is that the court improperly concluded that it was in the best interests of L.N. and M.N. to terminate her parental rights in them. We do not agree. "The best interests of the child include the child's interests in sustained growth, development, well-being, and continuity and stability of its environment." (Internal quotation marks omitted.) In re Shyina B. , 58 Conn.App. 159, 167, 752 A.2d 1139 (2000). This court will overturn the trial court's decision that it is in the best interests of the children to terminate the respondent's parental rights in them only if the court's factual findings are clearly erroneous. In re Daniel C. , 63 Conn.App. 339, 367, 776 A.2d 487 (2001). The respondent has not identified any findings of the court that she claims are clearly erroneous. The substance of the respondent's claim is that it is not in the best interests of the children to terminate her parental rights because she loves them and they love her. Her claim is not a new one and, standing alone, it is insufficient to reverse the judgments terminating her parental rights. "[O]ur courts consistently have held that even when there is a finding of a bond between parent and child, it still may be in the child's best interest to terminate parental rights." (Internal quotation marks omitted.) In re Luciano B. , 129 Conn.App. 449, 480, 21 A.3d 858 (2011) ; see also In re Rachel J. , 97 Conn.App. 748, 761, 905 A.2d 1271, cert. denied, 280 Conn. 941, 912 A.2d 476 (2006) ; In re Tyqwane V. , 85 Conn.App. 528, 536, 857 A.2d 963 (2004) ; In re Ashley S. , 61 Conn.App. 658, 667, 769 A.2d 718, cert. denied, 255 Conn. 950, 769 A.2d 61 (2001) ; In re Quanitra M. , 60 Conn.App. 96, 106-107, 758 A.2d 863, cert. denied, 255 Conn. 903, 762 A.2d 909 (2000). The court found that, although the children enjoy visiting with the respondent, given their "ages and stages of development, and their particular educational and emotional needs, [it was] constrained to conclude that allowing more time for [the] respondent to become able and willing to provide predictably safe, reliable and attentive custodial care for [the children] would unreasonably relegate these children's best interests to a level of uncertainty, without any valid basis . for determining that reunification with [her] can practicably be achieved within [a] reasonable period of time ." The court found that to delay termination of the respondent's parental rights would unduly interfere with the children's access to permanency that will enhance their opportunities and potential for healthy human development. We have reviewed the record, considered the briefs and arguments of the parties, and agree with the court. The judgments are affirmed. In this opinion the other judges concurred. The parental rights of the respondent father, S.N., in the children also were terminated. He filed a separate appeal to challenge the termination of his parental rights in the children. See In re Luis N., 175 Conn.App. 307, - A.3d -, 2017 WL 3205860 (2017). See In re Yasiel R., 317 Conn. 773, 795, 120 A.3d 1188 (2015). On August 9, 2012, Judge Frazzini adjudicated the children neglected as to S.N. on the ground that they were exposed to conditions injurious to their well-being. The petitioner filed petitions to terminate the parental rights of S.N. in the children on December 12, 2012. The termination of parental rights petitions as to both the respondent and S.N. were consolidated for trial. The department alleged that the children were exposed to the immediate risk of physical harm if they remained in the respondent's care due to her inadequate supervision of the children and the substandard conditions of her home. The respondent also was affected by substance abuse, and deteriorating mental health and cognitive functioning. Given the respondent's continued drug use, the court declined to credit any evidence she proffered to establish that she had acquired the coping skills to deal with environmental changes without relapsing. The court specifically found that the respondent did not acquire those skills because she did not successfully take part in the Family Intervention Center's intensive outpatient services. The court found that L.T. had a criminal history of convictions sufficiently grave to support the inference that the respondent knew the nature and extent of his unlawful conduct. From 2004 and continuing into 2009, L.T. had been arrested numerous times for drug possession, drug possession with intent to sell, criminal possession of a firearm, and violation of probation. He was sentenced to prison on numerous occasions. The respondent admitted that in January, 2016, she knew that L.T. had been arrested, but she was willing to let L.T. provide care for E.T. She, however, was unwilling to ask L.T. about "certain things." The court considered the implications of the respondent's "poor parental judgment" in the context of her overall parenting history. General Statutes § 17a-112 (j) provides in relevant part: "(1) the Department . has made reasonable efforts to locate the parent and to reunify the child with the parent . unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts . (2) termination is in the best interest of the child, and (3) . (B) the child (i) has been found by the Superior Court . to have been neglected, abused or uncared for in a prior proceeding . and the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent . 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 ." The court found that the department's reunification efforts were reasonable in view of the respondent's history of trauma, transience, poor personal judgment, parenting deficits, and recurrent illegal drug use. Although the department never engaged the respondent in child abuse treatment services, the respondent was fully aware of the sexual trauma M.N. sustained when she was with her father. M.N.'s half-brother, S., a child approximately her age, sexually assaulted her in 2014. The department was engaged with the respondent thereafter, but she was never able or willing to focus on M.N.'s needs to inquire about access to family therapy for the sexual trauma. The court found that the respondent was unable or unwilling to benefit from the many services provided by the department. She failed to take advantage of individual counseling provided by Williams and was discharged for noncompliance. Although the respondent knew that she was not to use illegal drugs and that she was subject to random drug tests, she consistently tested positive for marijuana and frequently for cocaine until 2016. The respondent had a poor attendance record at peer support group sessions for drug treatment, and she failed to attend scheduled medication management appointments. Her drug use was refractory to treatment, which resulted in time limited periods of sobriety that are inconsistent with the functional benefits of valid, appropriate reunification services. The respondent began, but did not complete, parenting classes with the Hispanic Health Council. On occasion the respondent cooperated with mental health medication management, but her depression and behavioral issues remained unresolved and intact. The court found that the respondent's inability or unwillingness to benefit from all of the services and treatment provided only to relapse into drug use, constitutes behavior that is inimical to that of a parent who is able or willing to learn from what she has been taught. The court made the following findings with respect to L.N. and M.N. Both of the children suffer from eczema and asthma. During his first days in foster care, L.N. had tantrums and engaged in sexualized behaviors with M.N. Because he was not toilet trained, L.N.'s entry into day care was delayed until he was three and one-half years old. In addition to his sexualized behavior, L.N. exhibited signs of having been traumatized, e.g., smearing feces and urinating on himself. He had difficulty in school and in his foster home, had tantrums, and cried in ways that were inappropriate for a five and one-half year old. He was defiant and oppositional. In June, 2014, L.N. was assessed at the Klingberg Family Centers because his oppositional and defiant behaviors had continued. He was diagnosed with generalized anxiety disorder, symptoms of hyperactivity, sleep problems, fears, and an inability to concentrate. He received therapy and gradually was able to sit still for longer periods of time in school. He failed to make academic progress, however. Given his specialized behavior needs, the department arranged for his school to conduct a pupil planning and placement team meeting for him, which led to his receiving special education services. M.N. has special emotional needs due to her history of sexual trauma. She received therapy at Klingberg Family Centers, where she exhibited fear; physical and verbal aggression toward others; difficulty with fine motor skills, sitting still, paying attention, and concentrating; and learning challenges. M.N. also intentionally urinated on herself at school, which is consistent with trauma. She was diagnosed as a child victim of sexual abuse. She received therapy and was taught relaxation skills appropriate to her age. Despite improvement over the years, M.N. had a very difficult time in school. She struggled to stay on task and was removed from class due to her behavioral issues. She consistently stated that she did not trust S., who had sexually assaulted her, and that she did not want to be near him. Her specialized emotional needs require that her caregivers identify and adhere to a designated and appropriate safety plan to prevent M.N. from being victimized again. Practice Book § 32a-4 provides in relevant part: "(b) Any party who intends to call a child or youth as a witness shall first file a motion seeking permission of the judicial authority.... "(d) The judicial authority with the consent of all parties may privately interview the child or youth. Counsel may submit questions and areas of concern for examination. The knowledge gained in such a conference shall be shared on the record with counsel and, if there is no legal representation, with the parent." At the court's request, the respondent and S.N. submitted questions to be asked of the children. The court then denied the motion for the children to testify. The respondent asked the court to articulate: (1) the legal basis of its March 18, 2016 order directing the petitioner to have the children present in the courthouse to meet with the judicial authority, particularly in light of the court's having denied the joint motion for the children to testify; (2) the purpose of the court's meeting with the children as it relates to the termination trial; (3) why the attorneys for the parents were excluded from the meeting when a representative of the department and the children's attorney and guardian ad litem were present; (4) what the children, court, and others in the room said or did during the meeting; and (5) what the court learned about the children as a result of the meeting that was new information or information that supported the evidence or contradicted the evidence admitted at trial. On March 6, 2017, the respondent filed a motion for review of the trial court's denial of her motion for articulation. This court granted the motion for review but denied the relief requested. "[A respondent] can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation . exists and . deprived the [respondent] of a fair trial; and (4) if subject to harmless error analysis, the [petitioner] has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." (Emphasis in original; footnote omitted.) State v. Golding, supra, 213 Conn. at 239-40, 567 A.2d 823, as modified in In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015). For this reason, we will not engage in an analysis under Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed. 2d 18 (1976), as urged by the respondent. "[The plain error] doctrine, codified at Practice Book § 60-5, is an extraordinary remedy used by appellate courts to rectify errors committed at trial that, although unpreserved, are of such monumental proportion that they threaten to erode our system of justice and work a serious and manifest injustice on the aggrieved party. [T]he plain error doctrine . is not . a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court's judgment, for reasons of policy.... In addition, the plain error doctrine is reserved for truly extraordinary situations [in which] the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.... Plain error is a doctrine that should be invoked sparingly.... 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.... "[Our Supreme Court has] clarified the two step framework under which we review claims of plain error. First, we must determine whether the trial court in fact committed an error and, if it did, whether that error was indeed plain in the sense that it is patent [or] readily discernible on the face of a factually adequate record, [and] also . obvious in the sense of not debatable.... [T]his inquiry entails a relatively high standard, under which it is not enough for the [respondent] simply to demonstrate that his position is correct. Rather, [to prevail] the party [claiming] plain error [reversal] must demonstrate that the claimed impropriety was so clear, obvious and indisputable as to warrant the extraordinary remedy of reversal...." (Internal quotation marks omitted.) In re Sydnei V., 168 Conn.App. 538, 562-64, 147 A.3d 147, cert. denied, 324 Conn. 903, 151 A.3d 1289 (2016). See Practice Book § 32a-4 (d) (judicial authority with consent of all parties may privately interview child and knowledge gained in such conference shall be shared on record with counsel). We further note that the court's prompt report to the parties and their counsel is consistent with Rule 2.9 (b) of the Code of Judicial Conduct, which provides, "[i]f a judge inadvertently receives an unauthorized ex parte communication bearing on the substance of a matter, the judge shall make provision promptly to notify the parties of the substance of the communication and provide the parties with an opportunity to respond." The court gave the respondent an opportunity to respond but neither she nor her counsel chose to do so.

12490260

Herbert SHOOK v. Ashley BARTHOLOMEW Herbert Shook v. Eastern Connecticut Health Network, Inc.

Shook v. Bartholomew

2017-06-20

AC 38945

256

264

165 A.3d 256

165

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-09-08T21:16:17.237805+00:00

Fastcase

DiPentima, C.J., and Mullins and Norcott, Js

Herbert SHOOK v. Ashley BARTHOLOMEW

Herbert SHOOK v. Ashley BARTHOLOMEW Herbert Shook v. Eastern Connecticut Health Network, Inc. AC 38945 Appellate Court of Connecticut. Argued March 6, 2017 Officially released June 20, 2017 Kathleen F. Adams, with whom, on the brief, was Peter J. Ponziani, for the appellants (defendant in each cases). Alinor C. Sterling, with whom was Emily B. Rock, for the appellee (plaintiff in both cases). DiPentima, C.J., and Mullins and Norcott, Js

3904

23906

MULLINS, J. In these consolidated actions, the defendants, Ashley Bartholomew and her employer, Eastern Connecticut Health Network, Inc., appeal from the judgments of the trial court, rendered in favor of the plaintiff in both actions, Herbert Shook, following a jury trial. On appeal, the defendants claim that the court improperly (1) refused to instruct the jury on apportionment of liability on the basis of comparative negligence despite the submission of a request to charge on that doctrine, (2) permitted the plaintiff to introduce evidence regarding his driving history, and (3) denied their motion to set aside the verdict. We affirm the judgments of the trial court. The jury reasonably could have found the following facts on the basis of the evidence presented. On November 21, 2012, at approximately 4:45 p.m., the plaintiff exited off of Interstate 84 in Manchester. It was the day before Thanksgiving and traffic was heavy. He stopped at the red light on the exit ramp in preparation to take a left turn onto Deming Street. The intersection is a busy four-way intersection, essentially in the shape of a cross or a plus sign, with many lanes. Some of the lanes of the intersection are for left turns, some for right turns and some for vehicles traveling straight through the intersection. There are traffic signals in the center of the intersection. The plaintiff's vehicle, which had exited Interstate 84, was facing north toward Avery Street; running east to west at the intersection is Deming Street. When the left arrow for the plaintiff's lane turned green, the plaintiff proceeded slowly into the intersection, intending to turn left (west) onto Deming Street. Bartholomew, who was traveling east on Deming Street in her Toyota Camry, hit the plaintiff's vehicle directly on the driver's side door. Although Bartholomew applied her breaks prior to impact, the plaintiff still sustained serious life-threatening injuries. Several witnesses saw the accident and gave statements to the police and/or provided testimony to the jury. The statements and testimony of those witnesses, varied greatly. Some of the witnesses stated that Bartholomew ran through a red light, and that the plaintiff had a green light. Other witnesses stated that the plaintiff ran through a red light, and that Bartholomew had a green light. The plaintiff filed a complaint sounding in negligence against Bartholomew, and, in a separate action, he filed a complaint alleging vicarious liability against Eastern Connecticut Health Network, Inc., as the accident occurred during the course of Bartholomew's employment. The defendants each filed answers and the special defense of comparative negligence. In their special defenses, the defendants alleged that the plaintiff had been negligent in several different ways, including, that he entered the intersection while his light was red, that he failed to observe that east and west traffic on Deming Street was crossing in front of him and that it was not safe to enter the intersection, and that he failed to maintain a reasonable lookout for other vehicles. The plaintiff denied the special defenses. The two separate cases that the plaintiff had filed, one against each defendant, later were consolidated for trial, and counsel agreed that the pleadings and the record in one case applied equally to the other case and vice versa. The matter then was tried to a jury over the course of several days. On November 23, 2015, the defendants submitted a request to charge that included various proposed instructions on comparative negligence. During the on-the-record charging conference, the plaintiff's attorney argued that there was no evidence to support a charge on comparative negligence on the plaintiff's part. He contended that the evidence demonstrated either that the plaintiff had a red light and ran through it, or that Bartholomew had a red light and ran through it, and that this was the manner in which the case was tried. In response, the defendants' attorney argued: "It's the defendants' position that the evidence does support the issuance of the charge. The jury could find comparative negligence here, even if it found one operator or the other ran the red light, specifically if they found [Bartholomew] went through the red light . [T]he jury could still find-whether it's a probability or not, we don't know, but it's possible they could still find-that, due to the configuration of this intersection, the sightlines available, the opportunity to perceive and react, [that] nonetheless, there is some comparative fault to be apportioned here, even if they found that one operator or the other, in fact, committed negligence per se in running the red light. So it's the defendants' position that the evidence in the case does support the issuance of the charge on comparative negligence." The court responded that it recognized that there was a special defense alleging comparative negligence and that the defendants had requested a comparative negligence instruction, but that it did not "remember any evidence at all concerning any of the sightlines." The court stated that it thought a comparative negligence instruction, wherein the jury could apportion some liability to the plaintiff, might confuse the jury because the case was tried as one in which the only issue was "who ran the red light." Additionally, the court stated that it had not "heard anything from counsel, very frankly, either in chambers or in court, that would persuade [it] otherwise ." After some unrelated discussion, the defendants' counsel stated that he was taking an exception to the court's ruling on the comparative negligence instruction. After the court instructed the jury, the defendants' counsel again noted his exception. The jury returned a plaintiff's verdict, and the defendants filed a motion to set aside the verdict, which the court denied. On February 23, 2016, the court rendered judgments in favor of the plaintiff. This appeal followed. I The defendants claim that the court improperly refused to instruct the jury that it could apportion liability on the basis of comparative negligence as requested in their proposed charge. They argue that there was a "clear record [of] evidence supporting a comparative negligence finding," and that there are statutes supporting such a finding and a jury charge on this issue. Additionally, the defendants contend that, even if the plaintiff had the green light, "Supreme Court authority expressly holds that comparative negligence principles apply when the plaintiff operator has the green light and the right-of-way." The defendants cite to specific evidence in the record, statutes, and Supreme, Appellate and Superior Court case law to support their contentions. The plaintiff argues in part that the defendants failed to alert the trial court to the applicability of the cases and the statutes they now cite on appeal. We conclude that the defendants did not present these evidentiary arguments, statutes, and cases to the trial court, and, further, that they failed to comply with the specific requirement in Practice Book § 16-23 to set forth evidence to support a comparative negligence instruction in their request to charge. See also Practice Book § 16-21. Accordingly, we decline to review this claim. "Pursuant to Practice Book § 60-5 : 'The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial....' 'As we have repeatedly reiterated, issues not properly raised before the trial court will ordinarily not be considered on appeal.... We have referred to the policy reasons underlying the preservation requirement on several occasions. The policy serves, in general, to eliminate the possibility that: (1) claims of error would be predicated on matters never called to the attention of the trial court and upon which it necessarily could have made no ruling in the true sense of the word; and (2) the appellee . would be lured into a course of conduct at the trial which it might have altered if it had any inkling that the [appellant] would . claim that such a course of conduct involved rulings which were erroneous and prejudicial to him.' " Rendahl v. Peluso , 173 Conn.App. 66, 105-106, 162 A.3d 1 (2017). Our decision also is guided by other rules of practice. Practice Book § 16-20 provides: "An 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 objection. The exception shall be taken out of the hearing of the jury." Practice Book § 16-21 provides in relevant part: "Any party intending to claim the benefit of the . provisions of any specific statute shall file a written request to charge on the legal principle involved." See also Mancaniello v. Guile , 154 Conn. 381, 385, 225 A.2d 816 (1966) (party intending to rely on specific statute should submit written request to charge specifically citing statute). The party requesting a charge on a specific statute has the burden to demonstrate the statute's application, meaning, and effect on the case. See Lowell v. Daly , 148 Conn. 266, 269-71, 169 A.2d 888 (1961). Practice Book § 16-23 (a) provides: "When there are several requests, they shall be in separate and numbered paragraphs, each containing a single proposition of law clearly and concisely stated with the citation of authority upon which it is based, and the evidence to which the proposition would apply. Requests to charge should not exceed fifteen in number unless, for good cause shown, the judicial authority permits the filing of an additional number. If the request is granted, the judicial authority shall apply the proposition of law to the facts of the case." (Emphasis added.) As so aptly explained in W. Horton & K. Knox, 1 Connecticut Practice Series: Superior Court Civil Rules (2016-2017 Ed.) § 16-20, author's comments, p. 734: "Litigants can preserve their appellate rights concerning the judge's charge to the jury by filing written requests to charge consistent with the court rules ." "The purpose of a request to charge is to inform the trial court how a principle of law applies to the facts of the case. The authors advise that a proper format for a request to charge is: (1) state the request, which may or may not refer to the evidence; (2) follow with a paragraph entitled 'citation of authority'; and (3) follow with a paragraph entitled 'evidence to which the request would apply,' if the request itself does not include a reference to the evidence. Counsel often omit references to evidence, a requirement which was added to the rule in 1980, but they do so at their own peril." (Emphasis added.) Id., § 16-23, author's comments, p. 738. "The Appellate Court noted the requirement that a request to charge must include a citation to the evidence on which it is based in State v. Williams , 59 Conn.App. 771, 778-82, [758 A.2d 400] (2000), rev'd on other grounds, 258 Conn. 1, 778 A.2d 186 (2001) (noncompliance with parallel criminal rule excused). See also State v. Rudd , 62 Conn.App. 702, [707-708], [773 A.2d 370] (2001).... The request should refer the law to the relevant facts, State v. Martin , 15 Conn.App. 58, 65, [544 A.2d 231] (1988), [aff'd], 211 Conn. 389, 559 A.2d 707 (1989) ; McGloin v. Southington , 15 Conn.App. 668, 671, [546 A.2d 906] (1988) ; and requests not applicable to the facts are properly refused. Batick v. Seymour , 186 Conn. 632, 643, [443 A.2d 471] (1982). If the request contains a factual statement involving facts claimed by one party, it should also include the facts claimed by the opposing party on the point. Pickens v. Miller , 119 Conn. 553, 555, [177 A. 573] (1935), and Kast v. Turley , 111 Conn. 253, 258, [149 A. 673] (1930).... "A request is properly refused if it contains an inadequate statement of the law as applied to the facts, State v. Manganella , 113 Conn. 209, 218, [155 A. 74] (1931), if it is argumentative on the facts, Colucci v. [Pinette , 185 Conn. 483, 441 A.2d 574 (1981) ], or emphasizes unfairly certain elements of the case, Radwick v. Goldstein , 90 Conn. 701, [706-707], [98 A. 583] (1916), or embodies a hypothetical case, Shields v. O'Reilly , 68 Conn. 256, 261, [36 A. 49] (1896), or if it is based on the assumption of facts still in dispute, Eckstrand v. Union Carbide Corp. , 169 Conn. 337, 342, [363 A.2d 124] (1975), or based upon assumed facts likely to mislead the jury, Miller v. Connecticut Co. , 112 Conn. 476, 479, [152 A. 879] (1931), or states some of the facts but leaves out other relevant facts, Bunnell v. Waterbury Hospital , 103 Conn. 520, 528, [131 A. 501] (1925)." (Citations omitted.) 1 W. Horton & K. Knox, supra, § 16-23, pp. 739-40. In this case, the defendants submitted a written request to charge that contained proposed instructions, each of which contained a citation to a specific section or sections of the Connecticut Judicial Branch Civil Jury Instructions, which are available at http://www.jud.ct.gov/ji/Civil/Civil.pdf (last visited June 7, 2017). The request contained no facts or evidence tailored to this particular case, it contained none of the statutory references that the defendants argue are relevant on appeal, and it gave no guidance to the court as to how the principles of comparative negligence applied to the facts of this case. Although the arguments that the defendants make on appeal, arguably, may be per-suasive in light of the transcripts, the trial court did not have the benefit of any of these arguments when it considered the defendants' request to charge or when it heard oral argument on the request. The court specifically told counsel that it did not recall evidence of any sightlines, and, even with that statement by the court, counsel did not seek to explain what evidence warranted a comparative negligence instruction. In reaching our conclusion, in addition to Practice Book § 60-5, 16-20, 16-21 and 16-23, we also are guided by our Supreme Court's decision in Hall v. Burns , 213 Conn. 446, 569 A.2d 10 (1990). In holding that the trial court did not improperly refuse to charge the jury in accordance with one of the plaintiff's requested instructions, our Supreme Court concluded that "[t]he request was defective"; id., at 482, 569 A.2d 10 ; because it "did not refer to any evidence and was an abstract proposition of law." Id., at 483, 569 A.2d 10. The court explained: "The object in filing a request to charge is to inform the trial court of a party's claim of the applicability of a principle of law to the case. . Our rules provide that each request to charge should contain a single proposition of law clearly and concisely stated with the citation of authority upon which it is based, and the evidence to which the proposition would apply . A proper request to charge cannot, therefore, under our practice merely be a statement of an abstract proposition of law ." (Emphasis in original; internal quotation marks omitted.) Id., at 482-83, 569 A.2d 10 ; see also Konover Development Corp. v. Zeller , 228 Conn. 206, 214 n.5, 635 A.2d 798 (1994) ("[t]he purpose of [ Practice Book § 16-23 ] is to require parties to inform the trial court of the manner in which a rule of law applies to a particular case, rather than simply stating an abstract proposition of law"). In the present case, the defendants cited abstract theories of law in their request to charge with no tailoring of the facts so that the court could ascertain how those theories fit this case. When the defendants' counsel was given a further opportunity during argument on his request to charge, he told the court that the instruction was warranted because there was evidence in the form of "the configuration of this intersection, the sightlines available, [and] the opportunity to perceive and react ." The trial court then stated that it had no recollection of any evidence regarding sightlines, and that the defendants had not presented anything that would persuade the court that an instruction was warranted. Although, on appeal, the defendants point to evidence, statutes, and case law that might be relevant to a comparative negligence instruction in this case, that information was not presented to the trial court. The defendants cite no authority that stands for the proposition that the trial court has an obligation to scour the record in order to substantiate counsel's request to charge, and we are not aware of any such authority. On the basis of this record, we conclude that it would amount to ambuscade of the trial court to find error on these particular facts. See generally State v. Johnson , 288 Conn. 236, 287-88, 951 A.2d 1257 (2008) ("to afford petitioners on appeal an opportunity to raise different theories of objection would amount to ambush of the trial court because, [h]ad specific objections been made at trial, the court would have had the opportunity to alter [the charge] or otherwise respond" [internal quotation marks omitted] ). II The defendants also claim that the court improperly permitted the plaintiff, over their objection on the basis of relevancy, to introduce character evidence in the form of his driving history. Specifically, the defendants argue that "the trial court allowed the plaintiff to testify that he had only been involved in one other car accident, which occurred approximately twenty years ago, when a car bumped him while he was stopped at a light." We conclude that this claim is not preserved for our review. "[T]he standard for the preservation of a claim alleging an improper evidentiary ruling at trial is well settled. This court is not bound to consider claims of law not made at trial. . In order to preserve an evidentiary ruling for review, trial counsel must articulate the basis of the objection so as to apprise the trial court of the precise nature of the objection and its real purpose, in order to form an adequate basis for a reviewable ruling. . Once counsel states the authority and ground of [the] objection, any appeal will be limited to the ground asserted." (Citation omitted; internal quotation marks omitted.) Birkhamshaw v. Socha , 156 Conn.App. 453, 486, 115 A.3d 1 (trial objections on ground of relevance failed to preserve for appellate review claim that testimony was improper character evidence), cert. denied, 317 Conn. 913, 116 A.3d 812 (2015). "These requirements are not simply formalities. They serve to alert the trial court to potential error while there is still time for the court to act. . Assigning error to a court's evidentiary rulings on the basis of objections never raised at trial unfairly subjects the court and the opposing party to trial by ambush." (Internal quotation marks omitted.) Perez v. D & L Tractor Trailer School , 117 Conn.App. 680, 693, 981 A.2d 497 (2009) (trial objections on ground of relevance failed to preserve for appellate review claim that testimony was improper character evidence), cert. denied, 294 Conn. 923, 985 A.2d 1062 (2010). As in Birkhamshaw and Perez , the defendants in the present case objected to the subject testimony on the basis of relevance, not improper character evidence, and they, therefore, failed to preserve this claim for appellate review. III The defendants also claim that the court abused its discretion in denying their motion to set aside the verdict. Specifically, the defendants argue: "More particularly, the trial court should have set aside the verdict based on the jury's failure to consider comparative [negligence], the improper jury charge regarding comparative [negligence] and/or the improper admission of evidence regarding the plaintiff's driving history." We disagree. "[T]he proper appellate standard of review when considering the action of a trial court granting or denying a motion to set aside a verdict and 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. . 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). We conclude that our resolution of the defendants' preceding claims; see parts I and II of this opinion; which form the basis of the present claim, is determinative of the outcome of the present claim. See Kramer v. Petisi , 91 Conn.App. 26, 37, 879 A.2d 526 (2005) (when claimed basis for improper denial of motion to set aside verdict is same error alleged and decided in another part of present appeal, previous conclusion of no error is determinative of outcome of this claim), aff'd, 285 Conn. 674, 940 A.2d 800 (2008) ; Bolmer v. McKulsky , supra, 74 Conn.App. at 510-11, 812 A.2d 869 (same). Accordingly, the court did not abuse its discretion in denying the defendants' motion to set aside the verdict. The judgments are affirmed. In this opinion the other judges concurred. We also have found no evidence related to sightlines in the record. Furthermore, we are unable to ascertain how the "configuration of this intersection" supports a comparative negligence instruction, and the defendants did not attempt to explain this to the court. We also are unable to ascertain, and the defendants did not explain to the trial court, exactly what they meant by "the opportunity to perceive and react" and how that might relate to a comparative negligence instruction. The specific testimony, which occurred on direct examination by the plaintiff's attorney, was as follows: "Q: Other than this accident, have you ever been in any other car accident in your life? "[The Defendants' Attorney]: Objection, relevance. "[The Plaintiff's Attorney]: It's relevant. "The Court: You know, it'll go to the weight. I'm going to allow it. It will be up to the jury to determine what weight to give it. "Q: Other than this accident, have you ever been in any other accident, car accident, in your life. "A: I think about twenty years ago, a car bumped me when I was stationed at a-standing at a stop light, but that's it." Additionally, although recognizing that we "previously [have] concluded than an objection based on relevancy fails to preserve [for appellate review] an objection regarding the admission of improper character evidence," the defendants ask that we reconsider our prior "position." "[I]t is axiomatic that one panel of this court cannot overrule the precedent established by a previous panel's holding. . This court often has stated that this court's policy dictates that one panel should not, on its own, reverse the ruling of a previous panel. The reversal may be accomplished only if the appeal is heard en banc." (Citation omitted; internal quotation marks omitted.) State v. Carlos P., 171 Conn.App. 530, 546 n.12, 157 A.3d 723 (2017).

12490364

Anthony SANTOS v. ZONING BOARD OF APPEALS OF the TOWN OF STRATFORD et al.

Santos v. Zoning Bd. of Appeals of Stratford

2017-07-11

AC 37281

20

24

166 A.3d 20

166

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-09-08T21:16:17.237805+00:00

Fastcase

Anthony SANTOS v. ZONING BOARD OF APPEALS OF the TOWN OF STRATFORD et al.

Anthony SANTOS v. ZONING BOARD OF APPEALS OF the TOWN OF STRATFORD et al. AC 37281 Appellate Court of Connecticut. Argued February 2, 2017 Officially released July 11, 2017 Ian Angus Cole, for the appellant (plaintiff). Sean R. Plumb, for the appellees (defendants). Sheldon, Mullins and Beach, Js.

1753

10707

PER CURIAM. The plaintiff, Anthony Santos, appeals from the judgment of the trial court in favor of the defendants, the town of Stratford (town) and its Zoning Board of Appeals (board). On appeal, the plaintiff contends that the court improperly held that the plaintiff had failed to prove his claims for (1) inverse condemnation and (2) unjust enrichment. We affirm the judgment of the trial court. The following facts, as found by the court or not contested, are relevant to this appeal. The plaintiff purchased an unimproved parcel of land in Stratford at a tax sale conducted by the town in May, 2002. The prior owner had owned the property for approximately seventeen years, but had never attempted to develop the property. The town had never formally approved the property as a building lot. In noticing the sale of the property, the town included a warning that the property had not been guaranteed to be buildable under the town's current zoning regulations. The property was sold to the plaintiff for approximately one half of its assessed value, and the prior owner made no attempt to exercise his right to redeem the property in the six months following the sale. After the sale was complete, the plaintiff attempted to develop the property as a residential building lot. Because the property contained wetlands, the plaintiff applied for a permit from the town's Inland Wetlands and Watercourses Commission. He then learned that two variances were required in order to build a home on the lot. One variance was required in order to construct a building near wetlands, and another was required because the lot, by application of the zoning regulations, did not meet the lot width requirement set forth in those regulations. The board denied the requested variances, noting that because the plaintiff's predecessor in title had created the plaintiff's lot in a way that did not conform to the town's zoning regulations, the board lacked the power to grant a variance. The plaintiff appealed, and the trial court affirmed the board's decision, reasoning that the plaintiff had failed to establish that the denial of the variance would cause him an unusual hardship. The plaintiff appealed to this court, and this court affirmed. See Santos v. Zoning Board of Appeals, 100 Conn.App. 644, 918 A.2d 303, cert. denied, 282 Conn. 930, 926 A.2d 669 (2007). In 2004, while his appeal from the board's decision was pending, the plaintiff commenced the present action against the defendants alleging that the act of denying the requested variances by the board (1) constituted a taking of his property through inverse condemnation; and (2) resulted in the town's unjust enrichment. The trial court rendered judgment for the defendants, holding that (1) the plaintiff failed to establish his claim for inverse condemnation, in large part because he had failed to demonstrate that he had a reasonable investment-backed expectation in the property; and (2) the plaintiff's claim for unjust enrichment had no basis in the evidence. This appeal followed. The plaintiff first argues that the court improperly determined that he failed to prove his claim for inverse condemnation. He claims that the court erred in relying on facts irrelevant to an inverse condemnation analysis as set forth in Penn Central Transportation Co. v. New York City, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978), and in failing to consider facts that were relevant to that analysis. We agree with the court's determination that the plaintiff has failed to prove his claim for inverse condemnation. As a preliminary matter, we state the standard of review applicable to the resolution of the plaintiff's appeal. In considering a claim for inverse condemnation, "we review the trial court's factual findings under a clearly erroneous standard and its conclusions of law de novo." Rural Water Co. v. Zoning Board of Appeals, 287 Conn. 282, 298, 947 A.2d 944 (2008). "[A]n inverse condemnation occurs when either: (1) application of the regulation amounted to a practical confiscation because the property cannot be used for any reasonable purpose; or (2) under a balancing test, the regulation's application impermissibly has infringed upon the owner's reasonable investment-backed expectations of use and enjoyment of the property so as to constitute a taking." Id., at 299, 947 A.2d 944. The plaintiff argues that he had a reasonable investment-backed expectation that he would be able to build a residential home on the property. He claims that the board's denial of the requested variances has foiled this expectation, and, therefore, that the defendants have effected a taking of his property. The plaintiff has conceded, however, that he may still be able to build a home on the property. If the plaintiff adjusts the building line by inserting a limitation in his deed such that the lot width deficiency is remedied, and if the board approves a building plan consistent with that adjustment, he will be able to build a home on his property. Both parties conceded this point in their briefs and at oral argument before this court. It is undisputed, then, that the problem could be solved with relatively little expense. In light of the agreement that the difficulty is readily correctible, a conclusion that application of any regulation amounted to confiscation, or that a reasonable investment-backed expectation had been thwarted, is obviously untenable. The application of the zoning regulations to the plaintiff's property did not "infringe upon the owner's reasonable investment-backed expectations of use and enjoyment of the property so as to constitute a taking "; (emphasis added) Rural Water Co. v. Zoning Board of Appeals, supra, 287 Conn. at 299, 947 A.2d 944 ; because the plaintiff has not been deprived of any reasonable investment-backed expectation. See id., at 302, 947 A.2d 944 ("[b]ecause the plaintiff failed to establish either that it had been deprived of all beneficial use of the property or that it had been deprived of a reasonable investment-backed expectation, the trial court properly dismissed the plaintiff's inverse condemnation claim"). We agree with the court's conclusion that there has been no inverse condemnation. The plaintiff also claims that the court improperly concluded that he failed to prove his claim of unjust enrichment. He argues that because the town has pre-vented him from developing his property, "[t]he town has essentially added 2.3 acres of [the plaintiff's] land to the ten acres of open space that the town already owns immediately to the east . and equity requires that the town compensate [the plaintiff] for the benefit it has derived from preventing [the plaintiff] from developing his property." As we previously held, the application of the town's regulations did not result in a taking of the plaintiff's property. We have carefully reviewed the record and the arguments of both parties on the unjust enrichment issue, and we find the claim to be without merit. The judgment is affirmed. The property was situated in an RS-3 zone, which, according to § 4.2 of the Stratford Zoning Regulations, required "minimum lot width" of 100 feet. The "line of measurement" of the width was to touch the building line, pursuant to § 1.32 of the regulations. The building line was defined as a "line parallel to the street at a distance equal to the required front yard . " Id., § 1.10. By this standard, the building line was drawn across the property's "panhandle," which abutted the street. By this figuring, the width of the property at that point was approximately fifty feet. The case was tried twice. The first judgment was vacated because of the trial court's failure to comply with the requirements of General Statutes § 51-183b. See Santos v. Zoning Board of Appeals, 144 Conn.App. 62, 67, 71 A.3d 1263, cert. denied, 310 Conn. 914, 76 A.3d 630 (2013). The judgment from which the plaintiff appeals was rendered in 2014. As the plaintiff stated in his reply brief, "the minimum lot width was 100 feet and that lot width is measured at the building line and . the regulations allowed him to set, by limitation in his deed, the location of the building line at a distance of 125 feet from the street thus eliminating a potential problem with inadequate lot width and obviating any need to apply for a variance." Section 1.10 of the Stratford Zoning Regulations provides an exception for the place to measure minimum width; although ordinarily it is to be measured at the distance from the required front yard-in this case, twenty-five feet-it may be measured at a greater distance "by limitation in a deed." A width of approximately 200 feet could be found, if the line were farther from the street. The plaintiff's attorney conceded at oral argument before this court that altering the building line on the deed is "not very complicated" and would take him about half a day's work. See also Santos v. Zoning Board of Appeals, supra, 100 Conn.App. at 650 n.4, 918 A.2d 303 ("The plaintiff contends, however, that the location of the building line under the regulations is not fixed but rather can be set arbitrarily, at any greater distance by the board or the property owner, by limitation in the deed. According to the plaintiff, by inserting a provision in his deed setting the building line at 125 feet from the street, the lot width issue evaporates and no variance is required. Inasmuch as the building line has not been otherwise established by limitation in the deed, we decline to consider this hypothetical scenario.") The trial court held that no reasonable expectation was foiled by regulatory action, because the regulatory situation was ascertainable throughout the relevant period of time, the town had disclaimed any representations as to use of property, the plaintiff's predecessors had created the nonconformity, and the purchase price reflected the speculative nature of the transaction. The court held as well that, in any event, the property was not without value. We do not disagree with the conclusions of the court. The trial court did not expressly decide the "limitation in the deed" issue, nor did the parties directly assert this ground. The factual issue had been suggested in Santos v. Zoning Board of Appeals, supra, 100 Conn.App. at 650-51, 918 A.2d 303, however, and both sides have recognized the available reconciliation.

12490399

Sharay FREEMAN v. A BETTER WAY WHOLESALE AUTOS, INC.

Freeman v. A Better Way Wholesale Autos, Inc.

2017-07-18

AC 38503

857

873

166 A.3d 857

166

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-09-08T21:16:17.237805+00:00

Fastcase

Sharay FREEMAN v. A BETTER WAY WHOLESALE AUTOS, INC.

Sharay FREEMAN v. A BETTER WAY WHOLESALE AUTOS, INC. AC 38503 Appellate Court of Connecticut. Argued March 28, 2017 Officially released July 18, 2017 Kenneth A. Votre, for the appellant (defendant). Richard F. Wareing, with whom was Daniel S. Blinn, for the appellee (plaintiff). DiPentima, C. J., and Prescott and Mullins, Js.

8072

49622

MULLINS, J. The defendant, A Better Way Wholesale Autos, Inc., appeals from the judgment of the trial court rendered in favor of the plaintiff, Sharay Freeman, on her complaint. On appeal, the defendant claims that the court erred, as a matter of law, in concluding that (1) the defendant violated the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. (CUTPA), (2) an award of punitive damages was appropriate, (3) the defendant committed fraudulent misrepresentation by nondisclosure of material facts, and (4) an award of attorney's fees to the plaintiff was appropriate. We dismiss for lack of a final judgment that portion of the appeal contesting the award of attorney's fees and otherwise affirm the judgment of the trial court. The parties stipulated to the following facts before the trial court. "The defendant is a Connecticut corporation that operates a motor vehicle dealership in Naugatuck [ (dealership) ] . It advertised a 2007 Honda Odyssey EX-L [ (vehicle) ] for sale at a price of $10,995. The plaintiff paid a $2500 deposit for the vehicle on February 18, 2013. She submitted a credit application to obtain financing for the vehicle. The defendant forwarded the plaintiff's credit application to two financing companies, American Credit and United Consumer Finance. The plaintiff did not agree to the terms offered to her and did not purchase the vehicle. Before bringing this action, the plaintiff requested a refund of her deposit, but the defendant refused to return it." In addition to the parties' stipulation, the court also found the following relevant facts. The plaintiff was in need of reliable transportation to get to work and to transport her children. When she saw the defendant's advertisement for the vehicle, it was priced approximately two thousand dollars less than other comparable vehicles. She telephoned the dealership to make sure the vehicle still was available. Upon finding that it was available, she rented a car to drive from Manchester to Naugatuck in order to test drive the vehicle. When she arrived at the dealership in Naugatuck, the plaintiff met with Alex Pierre, a salesman, and inquired as to what costs she would incur in addition to the price of the vehicle if she were to purchase it. Pierre told her that she would have to pay a conveyance fee, registration, sales tax, and finance charges for the vehicle. Pierre also told the plaintiff that she would have to put down a deposit of $2500 to initiate the credit approval process. He also told her that the deposit would be refundable if the credit application was not approved; otherwise, the deposit would be nonrefundable. On February 16, 2013, the plaintiff signed a retail purchase order (purchase order) for the vehicle. The purchase order set forth a cash purchase price for the vehicle of $10,995, a VIN etch service fee of $198, a dealer conveyance fee of $598, sales tax of 6.35 percent, an unspecified amount for registration of the vehicle, which the plaintiff reasonably expected to be under $150, and the plaintiff's deposit of $2500. The order did not show any financing information or other charges. The plaintiff placed her initials near each of the listed fees. Just under the area that showed the plaintiff's deposit was the statement, "NO REFUND OF DEPOSIT." Notwithstanding that statement, Pierre told the plaintiff that her deposit would be returned if the defendant could not secure financing for the plaintiff's purchase of the vehicle. The plaintiff, however, did not put down her deposit at that time. After leaving the dealership, the plaintiff used an online loan calculator to determine the amount of her monthly payments over a forty-two month term. Taking the purchase price of $10,995, and adding the additional fees and costs as set forth on the purchase order, and then subtracting the required $2500 deposit, the plaintiff determined that her monthly payments would be approximately $320 per month, assuming the maximum possible interest rate of 19 percent; see General Statutes § 36a-772. She believed she could afford a monthly payment in this amount. On February 18, 2013, the plaintiff returned to the dealership and paid the $2500 deposit. Pierre told the plaintiff that the dealership would process her application and let her know whether she was approved, which he did a few days later. Pierre told the plaintiff to bring in her W-2 form and an insurance card for the new vehicle. The plaintiff obtained insurance, and brought a copy of her W-2 form and her insurance card to the defendant. Because the plaintiff recently had received an increase in her income, which was not reflected on her W-2 form, her credit approval was delayed until she could obtain additional documentation. On February 23, 2013, the plaintiff traveled back to the dealership, where she met with Rob Italiano, a loan officer, who asked her to sign papers. The plaintiff asked Italiano how much her monthly payment would be, and he told her that it would be more than $500. The plaintiff was shocked that the cost was so much higher than her calculations and much higher than she could afford. Italiano told her that because of her credit problems, the bank had set her interest rate at 26 percent, and, because Connecticut law does not permit a rate higher than 19 percent, the defendant had to buy down the loan to get it within the legal limits. He also told her that the bank was requiring her to take out gap insurance and a service contract for the vehicle. The plaintiff told Italiano that she could not afford those payments. Italiano then came back with a new monthly rate of $447. He used two different methods to calculate that payment. One listed the sales price as $10,995, but added other service related contracts amounting to $3163. The other listed a sales price of $12,441.58, with stated sales tax of $949.58, and various service related contracts amounting to $2864. Each of these proposals required the plaintiff to pay approximately $21,292.90 over the forty-two month life of the loan, and was thousands of dollars more than she would have paid under her own calculations. Furthermore, the plaintiff did not want the service contracts, lifetime oil changes, or the tire and wheel service, each of which would have required her to drive from Manchester to Naugatuck for service. Accordingly, she asked for the return of her deposit. Pierre told her that the deposit was nonrefundable, but that it could be applied to a different vehicle. The plaintiff left the dealership without signing the sales agreement. On March 3, 2013, the plaintiff returned to the dealership and spoke with John Albano, its finance director. Albano told the plaintiff that he had been able to secure financing within the range of the monthly payment that the plaintiff originally had sought. Albano proposed a payment arrangement of $334.40 for forty-eight months, which was six months longer than the original financing, and which substantially increased the total cost to the plaintiff. The plaintiff refused those terms, and, again, requested that the defendant refund her deposit. The defendant refused. As a result, the plaintiff was unable to purchase another vehicle for approximately one year, while she saved money for another deposit. In her complaint, the plaintiff alleged a violation of CUTPA and fraudulent misrepresentation. The defendant filed an answer to the complaint, and it set forth six special defenses, namely, that (1) the defendant did not violate the federal Truth in Lending Act 15 U.S.C. § 1601 et seq. (TILA); (2) the defendant complied with all federal laws and maintained procedures and training reasonably adapted to avoid violation of TILA, and therefore, the plaintiff's claims were barred; (3) the defendant's actions fell outside its primary trade or business of selling automobiles, and therefore CUTPA was inapplicable; (4) the plaintiff's action was barred by the doctrine of unclean hands; (5) the defendant was not required by TILA to make any disclosures because the parties never closed the deal; and (6) the plaintiff's claims were precluded by the terms of the agreement to purchase the vehicle. The plaintiff denied each of the special defenses. On November 20, 2014, the case was tried before the court, Huddleston, J . On April 1, 2015, the court issued a thorough memorandum of decision in which it found in favor of the plaintiff on both counts of her complaint, and it rendered judgment in the amount of $10,000, consisting of $2500 in compensatory damages and $7500 in punitive damages. Additionally, the court awarded prejudgment and postjudgment interest and costs. The court also ruled that the plaintiff was entitled to attorney's fees pursuant to CUTPA and that a hearing would be held to determine those fees in accordance with Practice Book § 11-21. Thereafter, the defendant filed a motion for reconsideration of the trial court's decision, which the court denied. On October 30, 2015, the defendant filed the present appeal. Subsequently, on March 18, 2016, the court awarded the plaintiff $26,101.50 in attorney's fees. The defendant did not amend its appeal to challenge that award. See footnote 1 of this opinion. I The defendant claims that the court erred, "as a matter of law," in concluding that the defendant violated CUTPA. Specifically, it argues that the plaintiff failed to allege a "particular violation of a specific statute, regulation, or other law," and that the one applicable statute, General Statutes § 14-62, "was fully complied with by the [defendant]" because the purchase order provided, "in writing, that the deposit was not refundable ." Furthermore, the defendant argues, the plaintiff failed to establish that she suffered an ascertainable loss. The plaintiff argues that the court properly found a violation of CUTPA because the defendant's conduct violated public policy, it was "immoral, unethical, oppressive, and/or unscrupulous," it caused injury to consumers, and it caused the plaintiff to suffer an ascertainable loss in the form of her $2500 deposit. We agree with the plaintiff. "[Section] 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.... [I]n determining whether a practice violates CUTPA we have adopted the criteria [formerly] set out in the cigarette rule by the [F]ederal [T]rade [C]ommission for determining when a practice is unfair: (1) [w]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise-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.... In order to enforce this prohibition, CUTPA provides a private cause of action to [a]ny person who suffers any ascertainable loss of money . as a result of the use or employment of a [prohibited] method, act or practice . Because CUTPA is a self-avowed remedial measure, General Statutes § 42-110b(d), it is construed liberally in an effort to effectuate its public policy goals.... "Moreover, [w]hether a practice is unfair and thus violates CUTPA is an issue of fact, to which we must afford our traditional deference." (Citations omitted; internal quotation marks omitted.) Landmark Investment Group, LLC v. CALCO Construction & Development Co. , 318 Conn. 847, 880-81, 124 A.3d 847 (2015). "[When] the factual basis of the court's decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous." (Internal quotation marks omitted.) Centimark Corp. v. Village Manor Associates Ltd. Partnership , 113 Conn.App. 509, 523, 967 A.2d 550, cert. denied, 292 Conn. 907, 973 A.2d 103 (2009). If an appellant "challenges the court's interpretation of CUTPA, [however,] our review is plenary." System Pros, Inc. v. Kasica , 166 Conn.App. 732, 764, 145 A.3d 241 (2016). In the present case, the court thoroughly analyzed § 42-110b and carefully applied its factual findings to its analysis. Specifically, the court found that the defendant engaged in the following deceptive conduct: "The defendant expressly represented the cost of the vehicle would be $10,995, that there would be additional costs for sales tax, conveyance fees, a VIN etch fee, registration, and unspecified finance charges, and that the plaintiff's deposit would be returned if financing could not be obtained. These representations implied that there would be no other mandatory charges and that a legal rate of interest would be charged. These representations were made for the purpose of inducing the plaintiff to pay a substantial cash deposit. The plaintiff reasonably interpreted the defendant's representations to mean that her deposit would be refunded if financing could not be obtained for the vehicle at a legal rate of interest for the advertised price and only those additional charges that had been disclosed. The defendant failed to explain that the deposit would be nonrefundable if the defendant offered any financing on any terms, including terms that required the plaintiff to purchase services she did not want or to pay a price greater than the advertised price. This omission was material and induced the plaintiff to make a $2500 deposit. The defendant's conduct was deceptive and violated CUTPA." (Footnote omitted.) The court next analyzed each of the three criteria set out by the cigarette rule and determined that the defendant violated each of them in one or more ways. As to the first criterion, the court found in relevant part: "[T]he defendant violated established public policy in several ways, each of which independently is sufficient to satisfy the first prong of the cigarette rule. First, the public policy established by federal and state truth in lending laws requires adequate disclosure of financing terms so that a consumer can make an informed economic choice before committing to a proposed transaction. The defendant's failure to disclose financing terms before requiring a substantial nonrefundable deposit violates the public policy of fair disclosure reflected in the truth in lending laws.... "[T]he defendant [also] violated § 42-110b-28 (b) (1) of the [R]egulations of [Connecticut State Agencies, promulgated by] the Department of Consumer Protection. That section provides: '(1) It shall be an unfair or deceptive act or practice for a new car dealer or used car dealer to fail to sell or lease, or refuse to sell or lease, a motor vehicle in accordance with any terms or conditions which the dealer has advertised, including, but not limited to, the advertised price.' The defendant never made the vehicle available to the plaintiff on the terms upon which she agreed to purchase it. The purchase order that she signed reflected the advertised sale price of $10,995, a VIN etch service fee of $198, a dealer conveyance fee of $598, sales tax of 6.35 percent, and an undisclosed registration fee that the plaintiff reasonably believed would be less than $150.... She was never offered financing for a transaction including those terms and only those terms. The installment contracts offered to her at a monthly payment rate of $447.45 included extra products and services that she had not agreed to purchase . and an increased price of $12,441.58 . The installment contract offered to her at a monthly rate she could afford reflected a sales price of $12,500.... The defendant was unwilling to sell her the vehicle at the advertised price of $10,995 with no extras because it would lose money on the deal if it did so." (Citations omitted; emphasis added.) The defendant contends that it did not violate TILA and that the court erred in finding that it violated § 42-110b-28(b)(1) of the regulations. The defendant argues that (1) the plaintiff never alleged that the defendant's actions violated TILA, and (2) the regulation applies only to "the sale of the vehicle as advertised, " and it "never refused to sell the vehicle to [the] plaintiff at the advertised price of $10,995." (Emphasis in original.) We disagree with both contentions. Firstly, the court found that the defendant violated the public policy behind TILA, as had been argued by the plaintiff before the trial court; it did not find that the defendant violated TILA itself. The defendant also had set forth, inter alia, special defenses in which it claimed that it had complied with TILA. That issue, then, clearly was before the trial court and both parties had an opportunity to address it fully. In concluding that the defendant violated the public policy behind TILA, the court found that the defendant failed to disclose the financing terms to the plaintiff before requiring that she put down a $2500 deposit on a vehicle. This fact is beyond dispute. We agree with the court that this action violated the public policy behind TILA. See Landmark Investment Group, LLC v. CALCO Construction & Development Co. , supra, 318 Conn. at 880, 124 A.3d 847 (in assessing CUTPA violation, court must consider whether practice "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"). As to the defendant's contention that the court improperly concluded that it violated § 42-110b-28(b)(1) of the regulations, we disagree. Section 42-110b-28(b)(1) specifically prohibits a used car dealer from refusing to sell a vehicle in accordance with the terms or conditions that have been advertised, including, but not limited to, the advertised price. In this case, it is undisputed and the court expressly found that the defendant advertised the vehicle for sale at a price of $10,995. The terms disclosed to the plaintiff on the purchase order included this cash purchase price, a VIN etch service fee of $198, a dealer conveyance fee of $598, sales tax of 6.35 percent, and an undisclosed registration fee that the plaintiff reasonably believed would be less than $150. Despite the foregoing, however, the defendant then refused to sell the vehicle to the plaintiff on those terms, but, instead, required that she either pay more for the vehicle or buy additional service type contracts that she did not want. We conclude that the court properly found that this conduct violated § 42-110b-28(b)(1). The court next applied its factual findings to the second criterion of the cigarette rule, namely, whether the conduct of the defendant was immoral, unethical, oppressive, or unscrupulous. The court specifically found that the defendant's conduct was unethical: "[T]he defendant . offered [the plaintiff] only [financing] deals that either included unwanted products and services or a higher sales price or both. The defendant also provided a misleading assurance regarding the availability of a refund of the deposit to induce the plaintiff to pay the deposit. Its conduct in so doing was unethical." The defendant contends that its action in helping the plaintiff to lower "her monthly financing payment cannot be found to be immoral, unethical, oppressive, or unscrupulous." We disagree, and conclude that the record, as set forth previously in this opinion, supports the court's conclusion that the defendant's conduct was unethical. Next, the court analyzed the third criterion of the cigarette rule by considering whether the defendant's conduct was injurious to consumers and competitors, and it found: "The defendant's advertised price of $10,995 for the vehicle was [approximately] $2000 lower than prices for similar vehicles advertised by other dealers. This low price was intended to draw in customers, like the plaintiff, who are searching for affordable transportation. [Approximately] 30 percent of the customers shopping at the defendant's dealership have credit problems that require the defendant to turn to subprime lenders to arrange discount financing. Such financing requires the defendant to pay an 'acquisition fee' that it cannot charge back to the customer because doing so would raise the interest rate above the maximum of 19 percent allowed by law for used vehicles that are more than two years old. To make money on such a deal, the defendant must tack on extras, such as the tire and wheel service or lifetime oil changes, on which the dealership makes a profit. By requiring a deposit that it will not refund if it can obtain any type of financing, the defendant forces customers either to buy cars under terms they did not previously accept or to forfeit their deposits. The plaintiff . was harmed by this practice because, without the refund of her deposit, she was unable to purchase a different car for the year it took her to save enough money for a down payment. "The defendant's conduct also harmed competitors. It advertised a low price for the vehicle, took the money the plaintiff had available for a down payment, and then forced her to choose between accepting previously undisclosed terms that added thousands of dollars to the total price or forfeiting her deposit. With either choice, the plaintiff's business was unavailable to competing dealerships that more accurately disclosed the cost of the vehicle before extracting a significant financial commitment." The defendant sets forth no argument in its brief, save for a few sentences and no analysis in a footnote set forth in its statement of facts, challenging the court's findings on this third criterion. Accordingly, we conclude that it is uncontested. As to whether the plaintiff proved that she suffered an ascertainable loss, the court found: "The plaintiff has proved by a preponderance of the evidence that she sustained an ascertainable loss. The fact that the deposit theoretically remains available to her as a store credit does not make the money freely available to her. The plaintiff testified that when she searched the defendant's lot for an alternative vehicle, the only one that was suitable for her needs within her price range was a Saturn. When she inquired about it, she was told that it had been sold earlier in the day. Without the refund of her deposit, she was unable to purchase another car for a year because it took her that long to save up the money for a down payment." In regards to this determination by the court, the defendant argues that the plaintiff's deposit remains with the defendant and that she may use it for another vehicle; therefore, it contends, the plaintiff has suffered no ascertainable loss. We disagree. Our Supreme Court has explained that, under § 42-110g (a) of CUTPA, the term "ascertainable loss," "do[es] not require a plaintiff to prove a specific amount of actual damages in order to make out a prima facie case." Hinchliffe v. American Motors Corp. , 184 Conn. 607, 612-13, 440 A.2d 810 (1981). The court further explained: "[T]he inclusion of the word 'ascertainable' to modify the word 'loss' indicates that plaintiffs are not required to prove actual damages of a specific dollar amount. 'Ascertainable' means 'capable of being discovered, observed or established.' . 'Loss' has been held synonymous with deprivation, detriment and injury.... It is a generic and relative term.... 'Damage,' on the other hand, is only a species of loss.... The term 'loss' necessarily encompasses a broader meaning than the term 'damage.' . Whenever a consumer has received something other than what he bargained for, he has suffered a loss of money or property. That loss is ascertainable if it is measurable even though the precise amount of the loss is not known." (Citations omitted.) Id., at 613-14, 440 A.2d 810. Clearly, having lost the use of her $2500, the plaintiff suffered an ascertainable loss. The fact that she may have a credit, with a dealership with which she no longer wants to do business, that can be used to purchase a vehicle she does not want, is not the equivalent of having full use of the money. We conclude that the court properly found that the plaintiff had suffered an ascertainable loss. After reviewing the record and the court's findings, which are fully supported by the record, we conclude that the court properly applied the law to the facts in this case, and that it properly found that the defendant violated CUTPA. II The defendant next claims that the court erred, "as a matter of law," in awarding punitive damages to the plaintiff. It argues: "[The defendant] did not require the plaintiff to purchase any additional add-ons or extras that she did not wish to purchase and removed all such add-ons when requested. Therefore, the evidence did not show that [the defendant] recklessly disregarded the rights of others because the [defendant] removed all add-ons as requested by the [plaintiff]. The legal conclusion of the trial court is in error." (Footnote omitted.) We disagree. "A court may exercise its discretion to award punitive damages to a party who has suffered any ascertainable loss pursuant to CUTPA. See General Statutes § 42-110g(a). In order to award punitive or exemplary damages, evidence must reveal a reckless indifference to the rights of others or an intentional and wanton violation of those rights.... Accordingly, when the trial court finds that the defendant has acted recklessly, [a]warding punitive damages and attorney's fees under CUTPA is discretionary . and the exercise of such discretion will not ordinarily be interfered with on appeal unless the abuse is manifest or injustice appears to have been done.... Further, [i]t is not an abuse of discretion to award punitive damages based on a multiple of actual damages." (Citations omitted; internal quotation marks omitted.) Votto v. American Car Rental, Inc. , 273 Conn. 478, 485-86, 871 A.2d 981 (2005). In this case, the court found that "the defendant's conduct was done with a reckless disregard for the rights of others and that an award of punitive damages is warranted. The defendant's agent admitted that some 30 percent of the defendant's customers have credit problems that require the defendant to find subprime lenders who will not finance the full value of the loan, but rather require the dealer to pay an acquisition fee that cannot be passed on to the customer because doing so would raise the interest rate above the percentage allowed by law. The defendant will lose money on such deals if it cannot sell extras on which it makes a profit. The extras are not offered by the sales agents who initially meet with the customers to sell a vehicle, but only later, by the finance managers, after financing has been obtained. By that time, the customer has paid a deposit that the plaintiff deems to be nonrefundable because financing was obtained. The court infers from the testimony of the defendant's agent that the plaintiff's situation was not unique, but rather reflected a regular business practice of the defendant. By offering financing bundled with unanticipated extras, at a time when the customer has made a substantial deposit, the defendant places customers in the untenable situation in which the plaintiff found herself-forced either to accept unwanted goods and services at a higher cost than the customer had expected to pay or to forfeit the deposit. "The defendant's agent testified that, because of the discount financing, the defendant would have lost money on the sale to the plaintiff if it had provided financing on the advertised sale price without any unwanted extras. With the unwanted extras, the defendant would have made a profit of approximately a thousand dollars, but the plaintiff would have had to pay several thousand additional dollars above what she had reasonably calculated. When the plaintiff declined the extras, the defendant retained her deposit, effectively netting two and [one-half] times the amount of the profit it would have made had she accepted the extras. The court accordingly finds that the defendant's practice was used to augment the defendant's profit. "The defendant's wrongdoing was hard to detect before the customer paid the deposit. Although the purchase order stated that the deposit was nonrefundable, the salesman assured the plaintiff that the store's policy was to refund deposits if financing could not be obtained. By omitting material facts about the conditions under which a deposit would be refunded, the defendant concealed its actual practice from the plaintiff and, the court infers, from similarly situated customers who could obtain financing only through subprime lenders. "The injury and damages in this case, while substantial to a customer like the plaintiff with little cash to spare, are relatively small in relation to the cost and inconvenience of litigation to recover them. An award of punitive damages of some multiple of the actual damages is appropriate to punish and deter the conduct at issue here. See Ulbrich v. Groth , [310 Conn. 375, 456-57 n.66, 78 A.3d 76 (2013) ]." After making these findings, the court awarded punitive damages in the amount of $7500, or three times the compensatory damages of $2500. The defendant claims that there was no basis for punitive damages and that the court's legal conclusion was in error. We disagree. The court made very clear findings to support its decision to award punitive damages in this case after finding that the defendant acted in reckless disregard for the plaintiff's rights and that it did so in order to augment its profit. As the court stated: "The defendant never presented a financing package to the plaintiff that contained only the items she has agreed to purchase, at the price she had agreed to pay." On this basis, which is fully supported by the record, we conclude that the court did not abuse its discretion in awarding punitive damages to the plaintiff. III The defendant next claims that the court erred, "as a matter of law," in finding that it was liable for fraudulent misrepresentation by nondisclosure of material facts. It argues that the plaintiff "failed to present clear and satisfactory evidence that [it] made any false representations as a statement of fact.... [The defendant] did not do or say anything illegal in obtaining the nonrefundable deposit from [the plaintiff]." We disagree. On this claim, the court specifically found: "In this case, the defendant's salesman, in response to a direct inquiry by the plaintiff, told her that the additional expenses she would have to pay, above the sales price of the car, consisted of the dealer conveyance fee, registration, and sales tax. The purchase order further disclosed an optional VIN etching fee. To induce her to put down a $2500 deposit, the salesman assured her that her deposit would be refunded if financing could not be obtained. He did not explain to her that the dealership construed 'financing' to mean any financing, on any terms, regardless of whether those were the terms to which she had agreed. Because he volunteered information in response to her inquiries, he had a duty fully and fairly to explain the defendant's conditional refund policy. "From the credible evidence presented in this case, the court infers that the defendant will not offer financing on terms in which it will take a loss. In this case, it first attempted to recoup the loss that the discount financing [caused] by bundling extra services with the vehicle sales contract. It also told the plaintiff that the lender required gap insurance and a service contract. When the plaintiff declined those extras, the defendant then offered her financing with the deal stripped of all the extras-demonstrating that the extras were not lender requirements, but the defendant's own requirements-but with a sales price of $12,500 rather than the advertised price of $10,995 that the plaintiff had agreed to pay. These were, in effect, counter offers of a substituted transaction rather than an extension of credit for the deal the plaintiff believed she had accepted. The defendant nevertheless considered such counteroffers to be an extension of financing that terminated the plaintiff's right to receive a refund of her deposit. "Having told the plaintiff that (1) her only additional charges would include the dealer conveyance fee, the registration fees, sales tax, and the VIN etching fee, and (2) her deposit would be refunded to her if financing could not be obtained, the defendant led the plaintiff to believe that she would be offered financing for the items shown on the purchase order form she signed or her deposit would be returned. The defendant knew, however, that its finance managers would not offer financing that caused the dealership to take a loss on the transaction and would not return the deposit if it made any counteroffers with financing. In the circumstances of this case, the defendant was required to explain its conditional refund practice fully and fairly. Its failure to do so caused the plaintiff to pay the deposit and then deprived her of its refund under circumstances in which the deposit should have been refunded to her. The court finds, accordingly, that the clear and convincing evidence establishes that the defendant committed fraud by nondisclosure of material facts." After finding the defendant liable for fraudulent misrepresentation, however, the court declined to award damages on that count because the plaintiff's entitlement to damages under that theory of liability were identical to her damage award on the first count alleging a violation of CUTPA. Therefore, the court determined that it would not award damages separately on this count. "The essential elements of an action in fraud, as we have repeatedly held, are: (1) that a false representation was made as a statement of fact; (2) that it was untrue and known to be untrue by the party making it; (3) that it was made to induce the other party to act on it; and (4) that the latter did so act on it to his injury.... Fraud is not to be presumed but must be proven by clear and satisfactory evidence.... Fraud and misrepresentation cannot be easily defined because they can be accomplished in so many different ways. They present, however, issues of fact.... The trier is the judge of the credibility of the testimony and the weight to be accorded it.... The decision of the trial court will not be reversed or modified unless it is clearly erroneous in light of the evidence and the pleadings in the record as a whole." (Citations omitted; internal quotation marks omitted.) Miller v. Appleby , 183 Conn. 51, 54-55, 438 A.2d 811 (1981). Upon review, we conclude that there was ample evidence to support the trial court's conclusion of fraudulent misrepresentation by the defendant. It is clear from the court's findings and the record in this case that the defendant perpetrated a fraud against the plaintiff by failing to disclose material facts regarding the financing of this vehicle and the plaintiff's deposit. The defendant told the plaintiff that in addition to the advertised purchase price, she would have to pay a $598 dealer conveyance fee, a VIN etching fee of $198, 6.35 percent sales tax, and an undisclosed registration fee. The plaintiff initialed each of these fees on the purchase order. The defendant told the plaintiff that it required a $2500 deposit that was refundable if financing could not be secured. The defendant did not tell the plaintiff that additional fees would be required or that her price would be higher depending upon the interest rate available. The defendant secured financing, but at an interest rate of 26 percent, which is seven percentage points higher than the rate allowed by § 36a-772. To make the deal work then, the defendant had to buy down the loan. To recoup this cost, the defendant attempted to bundle extra services with the vehicle purchase, which the plaintiff did not want. The defendant also told the plaintiff that the lender required gap insurance and a service contract. After the plaintiff refused those extras, the defendant came back with a new offer, increasing the sales price of the vehicle to $12,500. When the plaintiff again refused and requested the return of her deposit, the defendant stated that the deposit was nonrefundable because it had secured financing for the plaintiff. We agree with the court that the refundability of the plaintiff's deposit and how it tied into the terms of the financing and the levying of extra costs to recoup the defendant's buy down were never disclosed to the plaintiff, and that the defendant clearly misled her into paying a sizeable deposit. We conclude, on the basis of these facts, that the court properly determined that the defendant committed fraud by nondisclosure of material facts. The portion of the appeal challenging the award of attorney's fees is dismissed; the judgment is affirmed in all other respects. In this opinion the other judges concurred. On April 1, 2015, the court awarded the plaintiff damages, interest, costs, and attorney's fees under CUTPA. With respect to the award of attorney's fees, however, the court ruled that the plaintiff was entitled to them, but that "[t]he amount . [would] be determined in a later proceeding to be initiated by the plaintiff ." Following the court's denial of the defendant's motion to reconsider, the defendant filed the present appeal on October 30, 2015. The trial court subsequently issued a March 18, 2016 ruling following a hearing on the merits of the plaintiff's motion for attorney's fees, and it awarded the plaintiff $26,101.50 in attorney's fees. In this appeal, the defendant raises a claim regarding the award of attorney's fees; it did not amend its October 30, 2015 appeal, however, to challenge the March 18, 2016 postjudgment order awarding attorney's fees. Prior to oral argument in this case, we ordered, sua sponte, the parties to be prepared to address, at oral argument, the jurisdictional issue presented by the defendant's failure to amend its appeal to include the postjudgment order awarding $26,101.50 in attorney's fees. Each party had an opportunity to address this issue during oral argument. It is well settled that this court lacks jurisdiction to review a trial court's decision to award attorney's fees until the court actually determines the specific amount of those fees. Ledyard v. WMS Gaming, Inc., 171 Conn.App. 624, 634-35, 157 A.3d 1215, cert. granted, 325 Conn. 921, 163 A.3d 620 (2017) ; Hirschfeld v. Machinist, 131 Conn.App. 352, 355 n.2, 29 A.3d 159 (2011) ; Burns v. General Motors Corp., 80 Conn.App. 146, 150-51 n.6, 833 A.2d 934, cert. denied, 267 Conn. 909, 840 A.2d 1170 (2003). Accordingly, a trial court's supplemental postjudgment order determining the amount of attorney's fees to be awarded to a prevailing party "may raise a collateral and independent claim that is separately appealable as a final judgment"; Paranteau v. DeVita, 208 Conn. 515, 523, 544 A.2d 634 (1988) ; and, if the nonprevailing party already has filed an appeal, it should amend its appeal if it wishes to challenge the postjudgment award. See id., at 524, 544 A.2d 634. Because the defendant has not amended its appeal, this court lacks jurisdiction over its claim challenging the award of attorney's fees. See McKeon v. Lennon, 131 Conn.App. 585, 610-11, 27 A.3d 436 (dismissing portion of appeal challenging award of attorney's fees where trial court had not determined specific amount of attorney's fees prior to filing appeal), cert. denied, 303 Conn. 901, 31 A.3d 1178 (2011) ; Sullivan v. Brown, 116 Conn.App. 660, 661-63, 975 A.2d 1289 (dismissing, sua sponte, appeal challenging award of statutory attorney's fees and costs where trial court had not determined precise amount of attorney's fees and costs prior to defendants' filing appeal), cert. denied, 294 Conn. 914, 983 A.2d 852 (2009). Accordingly, we dismiss this aspect of the appeal. The court also noted that John Albano, the finance director for the dealership, confirmed at trial that the defendant had a policy of returning deposits if it was unable to secure financing for the desired vehicle. General Statutes § 36a-772 provides in relevant part: "(a) A retail seller of motor vehicles may charge, contract for, receive or collect a finance charge expressed as an annual percentage rate on any retail installment contract covering the retail sale of a motor vehicle in this state, which charge shall not exceed the rates indicated for the respective classifications of motor vehicles as follows: . (3) on sales made on or after October 1, 1987 . (C) used motor vehicles of a model designated by the manufacturer by a year more than two years prior to the year in which the sale is made, nineteen per cent." Although the trial court did not calculate the approximate amount of the payment in its memorandum of decision, for convenience, we do so here: $10,995 (vehicle price) + $698.18 (sales tax of 6.35 percent) + $198 (etching fee) + $598 (conveyance fee) + $150 (reasonable registration fee estimate) = $12,639.18-$2500 (deposit) = $10,139.18. Financing the amount of $10,139.18, over a forty-two month period, at the maximum rate of interest of 19 percent, the plaintiff's expected payment would be approximately $332.34. The total approximate cost, with financing, is $16,458.28 ($332.34 x 42 months = $13,958.28 + $2500 deposit = $16,458.28). During trial, the defendant submitted exhibit A, which is a document of credit approval for the plaintiff from United Consumer Finance. That document, which is dated February 11, 2014, contains two columns, one for the vehicle without warranty, and the other for the vehicle with warranty. Both columns list a sales price for the vehicle of $12,500. The "without warranty" column also includes the following: tax of $793.75; registration fees of $140; down payment of $2500; VSI fee of $250; and total financed amount of $11,183.75, with payments listed at $334.40 per month for forty-eight months. Pursuant to our calculations, this equates to a total payout of $16,051.20 for the loan, plus the $2500 deposit, for a total cost, with interest, of $18,551.20. The column entitled "with warranty," in addition to the sales price of $12,500, contains the following: tax of $902.91; registration fees of $140; down payment of $2500; VSI fee of $250; warranty of $1719; and total financed amount of $13,011.91, with payments listed at $360.27 per month for fifty-four months. Pursuant to our calculations, this equates to a total payout of $19,454.58 for the loan, plus the $2500 deposit, for a total cost, with interest, of $21,954.58. The court noted that Albano testified that "approximately 30 percent of the defendant's customers have poor credit ratings that require the defendant to seek financing from subprime lenders. These lenders may require the dealership to pay an 'acquisition fee' for such loans that the dealership cannot pass on to the customer because it would raise the interest rate above the statutory limit of 19 percent. The defendant cannot make money on such transactions unless it sells additional services. On the particular transaction with the plaintiff, the defendant would have lost money if it had not added extra charges, such as for the oil changes and service contract, that were profitable to the dealership." The court further noted: "The sales representatives who meet with the customers do not sell the 'extras.' Those are sold by the finance department after the customer has signed the purchase order. The sales representative receives a flat commission of $350, while the finance manager who sells the extras receives a commission of 4 percent of the cost of those extras. In this case, with the extras proposed by Italiano, the defendant would have made a profit of about $1000, while it would have lost money if it had offered the plaintiff financing on the original terms." The court also found that the defendant never presented the plaintiff with a finance package that contained the advertised price of the vehicle with only the fees with which she had agreed, as set forth on the purchase order. All of the packages presented by the defendant would have required the plaintiff to pay thousands of dollars more than she reasonably had calculated using the purchase order and the maximum allowable interest rate. The state's TILA provisions are set forth at General Statutes § 36a-675 et seq. Contrary to this assertion, the plaintiff clearly alleged a violation of CUTPA, § 42-110a et seq. in count one of her complaint. General Statutes § 14-62(a) provides in relevant part: "Each sale shall be evidenced by an order properly signed by both the buyer and seller, a copy of which shall be furnished to the buyer when executed, and an invoice upon delivery of the motor vehicle, both of which shall contain the following information: (1) Make of vehicle; (2) year of model, whether sold as new or used, and on invoice the identification number; (3) deposit, and (A) if the deposit is not refundable, the words 'No Refund of Deposit' shall appear at this point, and (B) if the deposit is conditionally refundable, the words 'Conditional Refund of Deposit' shall appear at this point, followed by a statement giving the conditions for refund, and (C) if the deposit is unconditionally refundable, the words 'Unconditional Refund' shall appear at this point; (4) cash selling price; (5) finance charges, and (A) if these charges do not include insurance, the words 'No Insurance' shall appear at this point, and (B) if these charges include insurance, a statement shall appear at this point giving the exact type of coverage ." General Statutes § 42-110b provides in relevant part: "(a) No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." The court also concluded that the defendant's actions violated § 14-62 because (1) the defendant failed to include the financing terms in the purchase order it required the plaintiff to sign and (2) the purchase order provided that the deposit was nonrefundable, while the admitted practice of the defendant, as relied on by the plaintiff when providing her deposit, was to refund a deposit if financing could not be obtained. The court found that, because the terms of financing were not disclosed fully and involved undisclosed mandatory costs that essentially were used to hide the higher than legally permitted financing charges, the defendant violated the statute. The defendant contends that this was error as a matter of law, in part, because the plaintiff did not specifically plead the applicability of this statute. We note, however, that the court clearly found that the defendant, itself, raised this statute before the trial court and argued that it fully complied with it. The defendant does not challenge this finding on appeal. Nevertheless, because there were additional bases for the court's finding that the defendant violated the first criterion of the cigarette rule, we need not consider whether the court was correct in its determination that the defendant specifically violated § 14-62. In its appellate brief, the defendant argues in part that there was no evidence that the defendant mandated these extras, and, in fact, when the plaintiff "told the [defendant] that she was not interested in purchasing any of the extras . these extras were stripped from the sales [contract]." The defendant then cites to three specific pages of the trial transcript. We thoroughly have reviewed those pages and surrounding pages and conclude that the testimony on the referenced pages firmly provided that the defendant refused to remove the gap insurance, and it did not give the plaintiff any documentation about what extras it still was requiring after the plaintiff complained and asked for the return of her deposit. The defendant first cites to page thirty-five of the transcript. A review of that page reveals the plaintiff's testimony that Italiano told her that "gap insurance and a service contract" were added to the purchase order, along with "lifetime oil changes." On the following page, we find the plaintiff's testimony that Italiano told her "that that's what the bank required to get me approved." On the next page cited by the defendant, page sixty-four of the transcript, is the plaintiff's testimony that Albano reduced the proposed payments by more than $100 per month, but the plaintiff stated that she was not aware of him removing the charges for the warranty. On the following page, the plaintiff stated that she believed the new figure still included a service contract. On the final page cited by the defendant, page seventy-two, is the plaintiff's testimony that she "was never told that any of the gap insurance was removed."

12508859

SANTA ENERGY CORPORATION et al. v. Janet N. SANTA, Executrix (Estate of Norman K. Santa), et al.

Santa Energy Corp. v. Santa

2019-06-04

AC 41099

1123

1123

207 A.3d 1123

207

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-09-08T21:16:17.237805+00:00

Fastcase

SANTA ENERGY CORPORATION et al. v. Janet N. SANTA, Executrix (Estate of Norman K. Santa), et al.

SANTA ENERGY CORPORATION et al. v. Janet N. SANTA, Executrix (Estate of Norman K. Santa), et al. AC 41099 Appellate Court of Connecticut. Argued May 14, 2019 Officially Released June 4, 2019

38

229

Per Curiam. The judgment is affirmed.

12490873

Kathleen FREESE v. DEPARTMENT OF SOCIAL SERVICES Gustav Cariglio v. Department of Social Services

Freese v. Dep't of Soc. Servs. Gustav Cariglio

2017-08-29

(AC 38045), (AC 38083).

237

256

169 A.3d 237

169

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-09-08T21:16:17.237805+00:00

Fastcase

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

Kathleen FREESE v. DEPARTMENT OF SOCIAL SERVICES

Kathleen FREESE v. DEPARTMENT OF SOCIAL SERVICES Gustav Cariglio v. Department of Social Services (AC 38045), (AC 38083). Appellate Court of Connecticut. Argued January 30, 2017 Officially released August 29, 2017 Andrew S. Knott, with whom was Elizabeth A. Holman, for the appellants (plaintiff in each case). Patrick B. Kwanashie, assistant attorney general, with whom, on the brief, was George Jepsen, attorney general, for the appellee (defendant in both cases). DiPentima, C.J., and Mullins and Flynn, Js.

9159

57671

FLYNN, J. Our Supreme Court has construed remedial statutes liberally to give effect to their purpose. See Dorry v. Garden , 313 Conn. 516, 533, 98 A.3d 55 (2014). The plaintiffs, Kathleen Freese and Gustav Cariglio, appeal from judgments of the trial court dismissing their administrative appeals. The principal issue in these cases is whether General Statutes § 52-109, a remedial savings statute, could be utilized by the plaintiffs to save from dismissal their administrative appeals commenced in the names of the wrong persons as plaintiffs. In these consolidated administrative appeals, the defendant, the Department of Social Services, denied applications for Medicaid benefits that the plaintiffs filed on behalf of their respective mothers, Noreen McCusker and Arlene Cariglio (Arlene), both of whom died before the defendant rendered final decisions in the underlying administrative proceedings. The plaintiffs appealed those denials to the trial court, but because their decedents died before they brought the appeals, and because they did not bring the appeals as executors or administrators of their decedents' estates, the court determined that the plaintiffs lacked standing and dismissed their appeals for lack of subject matter jurisdiction. Furthermore, although the plaintiffs had been appointed as fiduciaries of their decedents' estates after they instituted the appeals and before the court ruled on the defendant's motions to dismiss, the court denied the plaintiffs' requests to cure the jurisdictional defect by substituting themselves, in their capacities as estate fiduciaries, as plaintiffs in the administrative appeals pursuant to the remedial savings statute § 52-109 and the similarly worded rule of practice. See Practice Book § 9-20. On appeal to this court, the plaintiffs claim that the trial court (1) improperly concluded that they did not have standing to bring their administrative appeals because, despite the fact that they did not bring the appeals as fiduciaries of their decedents' estates, they nonetheless had standing, pursuant to the regulations set forth in the Uniform Policy Manual (UPM); Regs., Conn. State Agencies § 17b-10-1 ; to assert their decedents' rights in representative capacities, and (2) improperly denied their requests for substitution because, even if they did not have standing initially, they were subsequently appointed as estate fiduciaries and, thus, were entitled to cure the standing problem pursuant to § 52-109 as applied by our Supreme Court in Kortner v. Martise , 312 Conn. 1, 91 A.3d 412 (2014). Although we agree with the court that the plaintiffs initially lacked standing to commence their appeals in representative capacities, we conclude that the court's stated justifications for denying the plaintiffs' requests for substitution of the fiduciaries of their decedents' estates were legally incorrect. Because, however, the court did not issue any findings as to whether the plaintiffs' failure to name the proper parties in their administrative appeals was due to a mistake, as is required for substitution to be available under § 52-109, we reverse the court's judgment and remand the case for further proceedings not inconsistent with this opinion. The facts and procedural history relevant to these appeals are undisputed. Freese applied for Medicaid benefits on behalf of her mother, Noreen McCusker, in October, 2013. On April 27, 2014, before the defendant ruled on the application, McCusker died. Thereafter, the defendant denied Freese's application because McCusker's assets exceeded the limit for eligibility for Medicaid. Acting on her mother's behalf, Freese requested a fair hearing with the defendant's Office of Legal Counsel, Regulations and Administrative Hearings. On September 26, 2014, after conducting the hearing, the Office of Legal Counsel concurred that McCusker's assets rendered her ineligible for Medicaid and denied Freese's appeal. Contesting the merits of that decision, Freese commenced an administrative appeal to the trial court on October 29, 2014. In her complaint, Freese alleged that McCusker's rights were prejudiced because the defendant improperly deprived McCusker of her entitlement to Medicaid benefits. Freese further alleged that she was aggrieved "by virtue of being next friend and putative administrator for [McCusker]." More than one month later, on December 11, 2014, Freese was appointed administratrix of McCusker's estate. Cariglio's action followed a similar procedural path. Cariglio's mother, Arlene, died on November 4, 2013. Just over one week later, Cariglio applied for Medicaid benefits on Arlene's behalf. The defendant denied Cariglio's application because Arlene had died and because Arlene's assets exceeded the eligibility limit. Cariglio requested a fair hearing and, following the hearing, the Office of Legal Counsel denied Cariglio's appeal on August 12, 2014. Cariglio commenced an administrative appeal in the trial court on September 16, 2014, alleging, in his operative complaint, that Arlene's rights were prejudiced by the defendant's erroneous finding that Arlene was ineligible for benefits. Cariglio further alleged that he brought the appeal in his capacity as Arlene's "co-attorney-in-fact, next friend, and putative coexecutor of [Arlene's] will." With regard to aggrievement, Cariglio alleged that he was aggrieved as Arlene's "estate examiner." Over a month later, on December 3, 2014, Cariglio was appointed as a coexecutor of Arlene's estate. Around the time when the plaintiffs were appointed as fiduciaries of their decedents' estates, the defendant moved to dismiss the plaintiffs' administrative appeals for lack of subject matter jurisdiction. In both motions, the defendant argued that the plaintiffs lacked standing to appeal from the denials of their Medicaid applications because they were not personally aggrieved by the denials and, furthermore, did not institute the appeals as administrators or executors of their decedents' estates. In response, the plaintiffs filed motions to substitute themselves, in their newly-obtained capacities as fiduciaries of their respective decedents' estates, as party plaintiffs in order to cure any jurisdictional defects. The plaintiffs both asserted that they commenced their appeals "based on a good-faith belief, not being the result of negligence," that they were the proper parties to appeal. The plaintiffs also requested leave to amend their complaints to that effect. In their objections to the defendant's motions to dismiss, the plaintiffs argued that, on the basis of Kortner v. Martise , supra, 312 Conn. at 1, 91 A.3d 412, substitution of an estate fiduciary as a plaintiff to cure a defect in standing is warranted under § 52-109 where, as in their cases, the original action was mistakenly brought in the name of an unauthorized party. Alternatively, the plaintiffs argued that, pursuant to the regulations set forth in the UPM, they had representative standing to appeal on their decedents' behalves despite the fact that, when they commenced their appeals, they had not yet been appointed as fiduciaries of their decedents' estates. After hearing argument on May 12, 2015, and ordering supplemental briefing, the court issued memoranda of decision dismissing the plaintiffs' appeals. With regard to Freese, the court began by distinguishing her case from our Supreme Court's decision in Kortner v. Martise , supra, 312 Conn. at 14, 91 A.3d 412, reasoning that, under Kortner , "substitution is permissible . only if the decedent had a colorable claim of injury during his life that is a real matter in dispute . such that the decedent had standing to bring the action himself," whereas McCusker died before Freese commenced her administrative appeal and, therefore, "ha[d] neither a vindicable right nor a colorable claim of injury that the action implicates." The court further observed that, because Freese's appeal was not commenced by an executor or administrator of McCusker's estate, it was incapable of being cured by substitution: "Being a nullity and incapable of vesting the court with subject matter jurisdiction over any controversy, a suit initiated by a decedent or his heir, or by another on their behalf, cannot be an action within the meaning of § 52-109, that section contemplating a legally cognizable right of action. Further, substitution under § 52-109 cannot retroactively validate such a suit." Accordingly, the court determined that Kortner was inapposite, declined to permit substitution, and dismissed Freese's appeal for lack of subject matter jurisdiction. In denying substitution, the court did not determine whether Freese's failure to appeal in her capacity as administratrix of McCusker's estate was the result of a mistake. See General Statutes § 52-109 (substitution appropriate only if trial court is satisfied that original action was commenced in name of improper party through mistake). In its memorandum of decision dismissing Cariglio's appeal, the court reasoned that, to have standing to appeal, Cariglio was required to commence the appeal in his capacity as a fiduciary of Arlene's estate, and that Cariglio's operative complaint failed to allege that he brought his appeal in such a capacity. The court also rejected Cariglio's argument that his appeal could be saved by § 52-109 or General Statutes § 52-599, reasoning that, because the appeal failed to invoke the court's jurisdiction in the first place, "there [was] no cause or right of action to save." Furthermore, the court concluded that Cariglio failed to plead aggrievement, as is required to have standing to appeal from an administrative decision. See General Statutes § 4-183(a). Thus, the court declined to permit substitution and dismissed Cariglio's administrative appeal for lack of subject matter jurisdiction. As in Freese's case, the court did not determine whether Cariglio failed to appeal as coexecutor of Arlene's estate due to a mistake. These consolidated appeals followed. The plaintiffs claim that court improperly granted the defendant's motions to dismiss for lack of subject matter jurisdiction. First, they argue that the court erroneously concluded that they lacked standing to appeal because, pursuant to the regulations set forth in the UPM, they had standing to appeal in representative capacities. Second, the plaintiffs contend that, on the basis of § 52-109 and Kortner v. Martise , supra, 312 Conn. at 1, 91 A.3d 412, the court erred in refusing to permit substitution in lieu of dismissing the cases. As set forth subsequently in this opinion, we disagree with the plaintiffs' claim that they had standing to appeal in capacities other than as fiduciaries of their respective decedents' estates. However, we reverse the judgments of dismissal and remand the cases for the court to determine whether the plaintiffs' failure to name the proper parties as plaintiffs in their appeals was due to a mistake and for such further proceedings as are not inconsistent with this opinion. We begin by setting forth our standard of review. "A determination regarding a trial court's subject matter jurisdiction is a question of law.... When the trial court draws conclusions of law, appellate review is plenary, and the reviewing court must decide whether the trial court's conclusions are legally and logically correct." (Internal quotation marks omitted.) Youngman v. Schiavone , 157 Conn.App. 55, 63, 115 A.3d 516 (2015). Furthermore, "[t]he 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." (Internal quotation marks omitted.) Id."[When] a motion to dismiss is filed on the ground that the plaintiff lacks standing, and the plaintiff quickly follows by filing a motion to substitute the correct party, the motion to substitute may be heard while the motion to dismiss is pending, notwithstanding the general rule that the subject matter jurisdictional issues raised by a motion to dismiss must be dealt with prior to other motions." (Internal quotation marks omitted.) Id. I The plaintiffs first argue that the court erroneously concluded that they lacked standing to appeal from the defendant's denials of their Medicaid applications because the UPM conferred them with standing to assert their decedents' rights in representative capacities. We disagree. "It is well established that the right to appeal an administrative action is created only by statute and a party must exercise that right in accordance with the statute in order for the court to have jurisdiction." New England Rehabilitation Hospital of Hartford, Inc. v. Commission on Hospitals & Health Care , 226 Conn. 105, 120, 627 A.2d 1257 (1993). In the present cases, the plaintiffs appealed pursuant to § 4-183(a), which provides in relevant part that "[a] person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the Superior Court as provided in this section." See also General Statutes § 17b-61(b) (providing that "[t]he applicant for [a fair] hearing, if aggrieved, may appeal therefrom in accordance with section 4-183"). Therefore, "in order to have standing to bring an administrative appeal, a person or entity must be aggrieved.... Aggrievement is a question of fact for the trial court and the plaintiff has the burden of proving that fact.... Pleading and proof of facts that constitute aggrievement are essential prerequisites to the trial court's subject matter jurisdiction over an administrative appeal.... In the absence of aggrievement, an administrative appeal must be dismissed for lack of subject matter jurisdiction." (Citations omitted.) New England Rehabilitation Hospital of Hartford, Inc. v. Commission on Hospitals & Health Care , supra, 226 Conn. at 120-21, 627 A.2d 1257. "[T]he fundamental test for determining aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, 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 decision ." (Internal quotation marks omitted.) New England Cable Television Assn., Inc. v. Dept. of Public Utility Control , 247 Conn. 95, 103, 717 A.2d 1276 (1998). Before reaching the question of aggrievement under § 4-183(a), we reject the plaintiffs' central contention that the UPM conferred them with standing to commence their administrative appeals in representative capacities. In essence, the plaintiffs' argument is that they need not establish aggrievement under § 4-183(a) provided that they had standing under the UPM. It is well settled, however, that "[a]ppeals to the courts from administrative [agencies] exist only under statutory authority . Appellate jurisdiction is derived from the . statutory provisions by which it is created . and can be acquired and exercised only in the manner prescribed.... In the absence of statutory authority, therefore, there is no right of appeal from [an agency's] decision ." (Internal quotation marks omitted.) Cales v. Office of Victim Services , 319 Conn. 697, 700-701, 127 A.3d 154 (2015). Therefore, the plaintiffs' standing to appeal from the defendant's denials of their Medicaid applications is derived solely from § 4-183(a) and 17b-61(b), and unless the plaintiffs established the prerequisites to standing as required by those sections, namely, aggrievement, their appeals are subject to dismissal. The regulations set forth in the UPM, promulgated by the defendant pursuant to General Statutes § 17b-10(a), cannot diminish the standing requirements set forth in the enabling statutes. Indeed, the plaintiffs' contention is that, under the UPM, any party eligible to request a fair hearing also has standing to appeal to the trial court. The enabling statutes, however, do not confer standing under such circumstances. "[M]ere status . as a party or a participant in a hearing before an administrative agency does not in and of itself constitute aggrievement for the purposes of appellate review." (Internal quotation marks omitted.) Med-Trans of Connecticut, Inc. v. Dept. of Public Health & Addiction Services , 242 Conn. 152, 169, 699 A.2d 142 (1997). Because the plaintiffs' claim that the UPM conferred them with standing would require us to depart from the enabling statutes, their reliance on the UPM is without merit. The plaintiffs do, however, cite one of the enabling statutes- § 17b-61(b) -as support for their argument that "the person who applied for the [f]air [h]earing may appeal the decision to the Superior Court." Section 17b-61(b), which governs standing to appeal from decisions rendered after administrative hearings, provides in relevant part: "The applicant for such a hearing, if aggrieved , may appeal therefrom in accordance with section 4-183...." (Emphasis added.) Contrary to the plaintiffs' interpretation, the plain text of that statute provides that an individual who applies for a fair hearing may appeal from that decision provided that he or she also is aggrieved . The plaintiffs' construction ignores the phrase "if aggrieved," in violation of the principle that statutes "must be construed, if possible, such that no clause, sentence or word shall be superfluous, void or insignificant ." (Internal quotation marks omitted.) Marchesi v. Board of Selectmen , 309 Conn. 608, 615, 72 A.3d 394 (2013). Therefore, § 17b-61 (b) does not diminish the standing requirements set forth in § 4-183 (a) for filing administrative appeals, and does not help the plaintiffs' cause. Having rejected the plaintiffs' primary argument on appeal, namely, that the UPM could confer them with authority to appeal to the Superior Court, we next conclude that the plaintiffs failed to plead facts establishing aggrievement. In their operative complaints, the plaintiffs allege that they applied for Medicaid benefits on behalf of their decedents, and that the defendant prejudiced their decedents' rights by improperly denying the applications. Therefore, despite the plaintiffs' alleged participation in the underlying proceedings and disagreement with the merits of the administrative decisions, they have failed to allege that they have any specific personal and legal interests in the decisions. See New England Cable Television Assn., Inc. v. Dept. of Public Utility Control , supra, 247 Conn. at 103, 717 A.2d 1276. On that basis, the plaintiffs were not aggrieved and, thus, lacked standing to commence these appeals. Nor did the plaintiffs allege facts establishing their standing to appeal under our right of survival statute, § 52-599, which abrogates the common law rule that causes of action do not survive the death of a plaintiff. See Burton v. Browd , 258 Conn. 566, 570-71, 783 A.2d 457 (2001). Under § 52-599, causes of action survive the death of a plaintiff, but only in favor of the plaintiff's "executor or administrator ." See General Statutes § 52-599(b). "It is a well established principle . that [d]uring the interval . between the death and the revival of the action [pursuant to § 52-599 ] by the appearance of the executor or administrator, the cause has no vitality. The surviving party and the court alike are powerless to proceed with it." (Internal quotation marks omitted.) Burton v. Browd , supra, at 571, 783 A.2d 457. Limiting § 52-599 to suits brought by the decedent's executor or administrator accords with the established principle that "[t]he proper suit, upon a cause of action arising in favor of . the decedent during [his or her] lifetime, is in the name of the fiduciary [of the estate] rather than of the heirs or other beneficiaries of the estate." (Internal quotation marks omitted.) Geremia v. Geremia , 159 Conn.App. 751, 781, 125 A.3d 549 (2015) ; see also 31 Am. Jur. 2d 746, Executors and Administrators § 1093 (2012) ("the exclusive right to bring action in behalf of an estate . is the legal representative of the estate; the heirs have no standing to maintain such an action" [footnote omitted] ). In the present case, neither plaintiff commenced their appeal as an executor or administrator of their decedent's estate; indeed, it is undisputed that they were not appointed into those capacities until December, 2014, after they instituted the appeals. Instead, Freese alleged that she was aggrieved as McCusker's "next friend and putative administrator," and Cariglio alleged that he was aggrieved as Arlene's "estate examiner." Because § 52-599 limits its ambit to executors or administrators, it does not authorize suits by parties such as next friends, putative administrators, or estate examiners. Accordingly, the plaintiffs failed to plead sufficient facts to establish aggrievement, and the court properly concluded that they lacked standing to appeal. We nonetheless find it appropriate to note that, in terms of whether a party authorized to participate in the administrative proceedings also is authorized to bring an administrative appeal, certain regulations in the UPM leave some room for confusion. For instance, § 1505.15 (A) (1) of the UPM permits applicants to be "represented by other qualified individuals who act responsibly for them," and § 1570.05 (D) (2) (b) provides that, in the case of a deceased applicant, their child may request a fair hearing on their behalf. Finally, § 1570.30 (A) of the UPM provides that "[t]he requester has the right to appeal a [f]air [h]earing decision to the court of jurisdiction." Taken together, we can see how litigants might be misled into thinking that they are authorized to file administrative appeals from fair hearing decisions simply because they were the person to request the fair hearing. Fair hearing applicants who mistakenly rely on these provisions of the UPM as conferring them with standing may be induced into failing to take the necessary measures to establish aggrievement under § 4-183, such as obtaining appointment as fiduciary of their decedent's estate, which could harm their ability to assert the rights of their decedents in administrative appeals. It would be prudent for the defendant to amend the relevant regulations of the UPM to provide a clear indication that none of them diminishes the aggrievement requirements set forth in § 4-183. Regardless of their lack of clarity, however, the UPM regulations cannot, as we have stated, enlarge the class of persons eligible to file an administrative appeal beyond those qualifying as aggrieved persons under § 4-183 (a). See Cales v. Office of Victim Services , supra, 319 Conn. at 700-701, 127 A.3d 154. Because the plaintiffs failed to allege that they were aggrieved, they lacked standing to appeal. II Having determined that the plaintiffs failed to plead sufficient facts to establish that they had standing to commence their administrative appeals, we must next determine whether the court erred by granting the defendant's motions to dismiss instead of giving the plaintiffs an opportunity to cure the jurisdictional defect by substituting themselves, as fiduciaries of their decedents' respective estates, as plaintiffs in the appeals. We conclude that the court's stated justifications for denying substitution are legally incorrect, and that the alternative grounds asserted by the defendant regarding why substitution was unavailable are without merit. Because, however, the court did not determine whether the plaintiffs' failure to sue in their capacities as fiduciaries of their decedents' estates was due to a mistake, which is a prerequisite for substitution under § 52-109, we remand the case for a further finding and for further proceedings not inconsistent with this opinion. "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 , supra, 157 Conn.App. at 65, 115 A.3d 516. Section 52-109 provides: "When any action has been commenced in the name of the wrong person as plaintiff, the court may, if satisfied that it was so commenced through mistake, and that it is necessary for the determination of the real matter in dispute so to do, allow any other person to be substituted or added as plaintiff." Section 52-109"allow[s] a substituted plaintiff to enter a case [w]hen any action has been commenced in the name of the wrong person as [the] plaintiff, and that such a substitution will relate back to and correct, retroactively, any defect in a prior pleading concerning the identity of the real party in interest.... Thus, a substitution of a real party in interest as the plaintiff cures the lack of standing of the original plaintiff . and, further, is permissible even after the statute of limitations has run.... An addition or substitution is discretionary, but generally should be allowed when, due to an error, misunderstanding or misconception, an action was commenced in the name of the wrong party, instead of the real party in interest, whose presence is required for a determination of the matter in dispute." (Citations omitted; footnotes altered; internal quotation marks omitted.) Fairfield Merrittview Ltd. Partnership v. Norwalk , 320 Conn. 535, 552-53, 133 A.3d 140 (2016). Once the trial court determines that the action was commenced in the name of the wrong party due to an error, misunderstanding or misconception, "the substituted party is let in to carry on a pending suit, and is not regarded as commencing a new one. After he is substituted he is . treated and regarded for most purposes just as if he had commenced the suit originally. The writ, the complaint, the service of process, attachment made, bonds given, the entry of the case in court, the pleadings if need be, in short all things done in the case by or in favor of the original plaintiff . remain for the benefit of the plaintiff who succeeds him, as if done by and for him originally and just as if no change of parties had been made. So far as the defendant is concerned, the same suit upon the same cause of action, under the same complaint and pleadings substantially in most cases, goes forward to its final and legitimate conclusion as if no change had been made." (Internal quotation marks omitted.) Kortner v. Martise , supra, 312 Conn. at 12-13, 91 A.3d 412. "[W]hen a plaintiff is added to the case to correct a mistake in ascertaining the real plaintiff in interest, the defendant rarely, if ever, will be prejudiced, as long as he was fully apprised of the claims against him and was prepared to defend against them." DiLieto v. County Obstetrics & Gynecology Group, P.C. , 297 Conn. 105, 158, 998 A.2d 730 (2010). Finally, we must bear in mind that "remedial statutes must be afforded a liberal construction in favor of those whom the legislature intended to benefit." (Internal quotation marks omitted.) Dorry v. Garden , supra, 313 Conn. at 533, 98 A.3d 55. Our rules with respect to substitution are no different-they "permit the substitution of parties as the interest of justice require"; (internal quotation marks omitted) Kortner v. Martise , supra, 312 Conn. at 11, 91 A.3d 412 ; and "are to be construed so as to alter the harsh and inefficient result that attached to the mispleading of parties at common law." (Internal quotation marks omitted.) Id. In the present cases, the trial court did not determine whether the plaintiffs' failure to name the proper parties in their appeals was due to a mistake. Instead, the trial court's principal reason for denying substitution appears to have been that the plaintiffs' administrative appeals were not legally cognizable actions capable of being cured by § 52-109 or our right of survival statute, § 52-599(b), because they were commenced by parties without authorization to sue and, consequently, were nullities. In its memorandum of decision dismissing Freese's case, the court stated that, "[b]eing a nullity and incapable of vesting the court with subject matter jurisdiction over any controversy, a suit initiated by a decedent or his heir, or by another on their behalf, cannot be an action within the meaning of § 52-109, that section contemplating a legally cognizable right of action. Further, substitution under § 52-109 cannot retroactively validate such a suit." Likewise, with regard to Cariglio, the court observed that, although " § 52-109 permit[s] substitution of a proper party for the plaintiff in any action mistakenly commenced in the name of the wrong person and § 52-599(b) permits a civil action or proceeding by or against any party who dies during the pendency of the action to be continued by or against the decedent's executor or administrator, neither statute can save an unauthorized suit, there being no cause or right of action to save." This reasoning is flawed on two levels. First, although the plaintiffs lacked authority to bring these appeals on their decedents' behalves, they did not, as the trial court suggested, lack the capacity to sue so as to render their administrative appeals nullities. "It is elemental that in order to confer jurisdiction on the court the plaintiff must have an actual legal existence, that is he or it must be a person in law or a legal entity with legal capacity to sue." (Internal quotation marks omitted.) Coldwell Banker Manning Realty, Inc. v. Cushman & Wakefield of Connecticut, Inc. , 136 Conn.App. 683, 687, 47 A.3d 394 (2012). For instance, "[t]he quintessential example of someone who lacks capacity to sue . is a deceased person, as capacity only exists in living persons." In re Estate of Sauers , 613 Pa. 186, 198, 32 A.3d 1241 (2011) ; see also Noble v. Corkin , 45 Conn.Supp. 330, 333, 717 A.2d 301 (1998) ("[a] dead person is a nonexistent entity and cannot be a party to a suit" [internal quotation marks omitted] ). Likewise, "[a]n estate is not a legal entity. It is neither a natural nor artificial person, but is merely a name to indicate the sum total of the assets and liability of the decedent or incompetent.... Not having a legal existence, it can neither sue nor be sued." (Citation omitted; internal quotation marks omitted.) Isaac v. Mount Sinai Hospital , 3 Conn.App. 598, 600, 490 A.2d 1024, cert. denied, 196 Conn. 807, 494 A.2d 904 (1985). In the present cases, however, the plaintiffs did not commence their appeals in the names of their decedents or their decedents' estates; rather, they sued in their own names. Although the plaintiffs were not authorized, and thus lacked standing, to appeal in their own names, they were nonetheless living persons with capacity to sue. See 67A C.J.S. 524-25, Parties § 10 (2013) ("[i]n general, every natural person of lawful age has legal capacity to sue"). Accordingly, the trial court was incorrect to posit that the plaintiffs' appeals were nullities. Second, even if the plaintiffs' appeals were nullities, the mere fact that an action fails to confer jurisdiction on the court does not preclude that jurisdictional defect from being cured through substitution. "[I]f § 52-109 is to have the ameliorative purpose for which it was intended, then even assuming that the specter of subject matter jurisdiction rears its head, the statute is meant to give the trial courts jurisdiction for the limited purpose of determining if the action should be saved from dismissal by the substitution of plaintiffs.... The legislature's provision of this statutory remedy would be completely undermined by any rule requiring the immediate dismissal for lack of subject-matter jurisdiction of any action commenced in the name of the wrong person as plaintiff. The statute, as an exercise of the legislature's constitutional authority to determine [our court's] jurisdiction . must be seen as an extension of that jurisdiction for the limited purpose of deciding a proper motion to substitute." (Citations omitted; internal quotation marks omitted.) Youngman v. Schiavone , supra, 157 Conn.App. at 64, 115 A.3d 516. Put simply, substitution is available to cure lawsuits that, like the present cases, were commenced by unauthorized parties. Our Supreme Court recognized this in Kortner v. Martise , supra, 312 Conn. at 1, 91 A.3d 412, in which the plaintiff, in her capacity as conservator of Caroline Kortner's person, commenced a tort action against the defendant, asserting that the defendant committed a variety of torts against Kortner. Id., at 8, 91 A.3d 412. Kortner died after the action was commenced, the plaintiff was appointed administratrix of her estate, and the trial court granted the plaintiff's motion to substitute herself as administratrix as the plaintiff in the action. Id., at 11, 91 A.3d 412. On appeal, the Supreme Court sua sponte ordered the parties to brief the issue of whether the plaintiff lacked standing to sue as conservator of Kortner's person. Id., at 9 and n.7, 91 A.3d 412. The court concluded that, "even assuming, arguendo, that the plaintiff did not have standing to bring the claim when she commenced the action . any defect was cured when she, as administratrix of [Kortner's] estate, was substituted as the plaintiff . and that substitution related back to the commencement of the action." Id., at 14, 91 A.3d 412. By permitting substitution to cure the alleged jurisdictional defect, the court implicitly recognized in Kortner that substitution under § 52-109 is not categorically unavailable to cure lawsuits commenced by unauthorized parties. We also do not agree with the trial court's reasoning in its memorandum of decision dismissing Freese's appeal that substitution would prejudice the defendant because it would permit Freese to avoid the forty-five day limitation period for filing administrative appeals. Our case law recognizes that "[w]hen a plaintiff is added to the case to correct a mistake in ascertaining the real plaintiff in interest, the defendant rarely, if ever, will be prejudiced, as long as he was fully apprised of the claims against him and was prepared to defend against them." DiLieto v. County Obstetrics & Gynecology Group, P.C. , supra, 297 Conn. at 158, 998 A.2d 730. Additionally, "substitution of a real party in interest as the plaintiff cures the lack of standing of the original plaintiff . and, further, is permissible even after the statute of limitations has run." (Citation omitted; internal quotation marks omitted.) Fairfield Merrittview Ltd. Partnership v. Norwalk , supra, 320 Conn. at 553, 133 A.3d 140. Here, Freese brought her administrative appeal on October 29, 2014, within the forty-five day limitation period, and her pleadings fully apprised the defendant of the claims she was raising. Thus, it is difficult to discern the way in which the defendant would be prejudiced by substitution. The defendant advances additional arguments as to why substitution was unavailable. The defendant argues that administrative appeals are not "actions" eligible to be cured under the provisions of § 52-109, and that there was not a sufficient identity of interest between the originally named plaintiffs and the plaintiffs in their capacities as estate fiduciaries. Moreover, the defendant argues that, in light of Kortner v. Martise , supra, 312 Conn. at 14, 91 A.3d 412, substitution was unavailable in the plaintiffs' cases because the plaintiffs' decedents were deceased by the time the defendant issued appealable administrative decisions and, therefore, did not have standing in their own right to bring the appeals. We turn first to the defendant's argument that the plaintiffs' administrative appeals are not "actions" for purposes of § 52-109. That section provides: "When any action has been commenced in the name of the wrong person as plaintiff, the court may, if satisfied that it was so commenced through mistake, and that it is necessary for the determination of the real matter in dispute so to do, allow any other person to be substituted or added as plaintiff." (Emphasis added.) Section 52-109 thus requires that, in order to fall within the statute's saving grace, a case must be an "action." As support for its argument, the defendant cites to Carbone v. Zoning Board of Appeals , 126 Conn. 602, 13 A.2d 462 (1940), Bank Building & Equipment Corp. of America v. Architectural Examining Board , 153 Conn. 121, 214 A.2d 377 (1965), and Chieppo v. Robert E. McMichael, Inc. , 169 Conn. 646, 363 A.2d 1085 (1975), none of which deal with § 52-109 at issue here. In Carbone v. Zoning Board of Appeals , supra, 126 Conn. at 602, 13 A.2d 462, writing for our Supreme Court, Justice Maltbie, with logic and brevity worthy of Tacitus, observed that, as used in our General Statutes, "the word 'action' has no precise meaning and the scope of proceedings which will be included within the term as used in the statutes depends upon the nature and purpose of the particular statute in question." Id., at 605, 13 A.2d 462. In deciding that an appeal from a zoning board was not an "action" for purposes of the accidental failure of suit statute, General Statutes § 52-592 (then codified as General Statutes [1930 Rev.] § 6024), the court held that statutory actions and special laws that fix a rather brief time in which appeals may be taken to the courts from the order and decisions of administrative boards, and that make it possible to proceed in the matter as soon as the time to take an appeal has passed if one has not been filed, were unsuited to be considered "actions" that could be saved under the one year recommencement provision of the accidental failure of suit statute. Id., at 607, 13 A.2d 462. The court stated that "[t]o hold that an appeal in such a proceeding as the one before us is an 'action' within the meaning of [the accidental failure of suit statute] would have the practical effect of eliminating the time factor in taking such appeals." Id. We see important distinctions between the present cases and Carbone . The Carbone court wisely ruled that a fifteen day appeal period could not be extended to one year under the accidental failure of suit statute because the short fifteen day appeal period had been established by the legislature, rather than rule of the court, so that persons who might have received an approval of a zoning application could proceed with a project and so that public officials charged with issuing permits could issue them knowing that no appeal had been taken in the fifteen day period permitted. We see no such imperative here. Under § 4-183, the appeal statute in the present cases, the appeal period is forty-five days, three times longer than the time within which zoning appeals must be taken. Unlike Carbone , there is no similar need to "proceed in the matter as soon as the time to take an appeal has passed if one has not been filed." Carbone v. Zoning Board of Appeals , supra, 126 Conn. at 607, 13 A.2d 462. Moreover, unlike Carbone , the remedial statute involved here is § 52-109. In Bank Building & Equipment Corp. of America v. Architectural Examining Board , supra, 153 Conn. at 121, 214 A.2d 377, also relied upon by the defendant, the statute involved was General Statutes (Cum. Supp. 1965) § 20-289, which governed appeals from orders of the Architectural Examining Board and provided that such appeals must be taken within thirty days of the date of an order. Id., at 123, 214 A.2d 377. Rejecting the plaintiffs' request to overrule Carbone , the court determined that an appeal under § 20-289 was not an "action" for purposes of the accidental failure of suit statute, § 52-592, or a "civil action" under General Statutes § 52-593, which provides that a plaintiff in "any civil action" who fails to obtain a judgment by reason of failure to name the right person as defendant may bring a new action even if the statute of limitations had expired. Id., at 124, 214 A.2d 377. In reaching this conclusion, the court found it "significant that § 20-289, in authorizing appeals from the defendant board, requires that the citation be 'signed by the same authority' and that the appeal be 'returnable at the same time and served and returned in the same manner as is required in the case of a summons in a civil action.' . The steps prescribed in § 20-289 are easily understood. It is apparent from the language used that the General Assembly intended to set forth a procedure distinct from the ordinary concept of a civil action." (Citation omitted.) Id., at 125, 214 A.2d 377. By contrast, § 4-183 does not set forth any procedure distinct from the procedure used to bring an ordinary civil action. The defendant also argues that Chieppo v. Robert E. McMichael, Inc. , supra, 169 Conn. at 646, 363 A.2d 1085, supports the proposition that the present administrative appeals are not actions under § 52-109. Chieppo , however, also has factual distinctions from the present cases. Chieppo dealt with a workers' compensation appeal pursuant to General Statutes (Rev. to 1975) § 31-301 (a), which, at that time, provided for a very limited ten day appeal period within which it might be brought. An employer whose appeal had been dismissed because it had been brought in the wrong court sought to transfer the matter to the proper court pursuant to General Statutes (Rev. to 1975) § 52-32. Id., at 648-49, 363 A.2d 1085. Because the purpose of the workers' compensation act was to provide a prompt, effective means of compensating injured workers for related expenses, it was not deemed a "civil action" for purposes of § 52-32. Id., at 653-54, 363 A.2d 1085. Given the much shorter ten day window for filing an appeal in Chieppo , and the obvious legislative purpose of the workers' compensation statutes to ensure that injured workers were provided with a prompt remedy in lieu of their right to sue their employer or negligent fellow worker, the ruling that such appeals are not ordinary civil actions was consistent with the framework that Chief Justice Maltbie's opinion in Carbone v. Zoning Board of Appeals , supra, 126 Conn. at 602, 13 A.2d 462, used to decide whether a particular case was a civil action eligible to be saved by a remedial statute, namely, analysis of the nature and purpose of the particular statute in question. For these reasons, we do not find Carbone , Bank Building & Equipment Corp. of America or Chieppo persuasive for purposes of determining whether administrative appeals under § 4-183 are "actions" that are salvageable under § 52-109. We conclude that substitution is available under § 52-109 to cure an administrative appeal commenced in the name of an improper party due to a mistake. The defendant also claims that substitution was unavailable because there is an insufficient identity of interest between the plaintiffs in their purported capacities as next of friend, putative administrator, and estate examiner, and the plaintiffs in their capacities as fiduciaries of their decedents' estates. The defendant grounds this argument in the assertion that, "whereas the plaintiffs claim to represent the decedents' interest, the estate fiduciaries represent the decedents' creditors' interest, and, though related, the two sets of interests do not coincide." We disagree. The pleadings in the present cases do not reflect that the plaintiffs, as estate fiduciaries, represent the interests of the decedents' creditors rather than the decedents' interests. To the contrary, the plaintiffs filed proposed amended complaints in conjunction with their requests for substitution in which they both alleged that the rights of their decedents were prejudiced by the defendant's erroneous denials of their Medicaid applications. Thus, whether suing in the unauthorized capacities of next of friend, putative administrator or estate examiner, or in their proper capacities as estate fiduciaries, the plaintiffs sought the very same thing-to vindicate their decedents' rights to Medicaid benefits. Accordingly, there is no identity of interest impediment to substitution. Finally, we do not agree with the defendant's reading of Kortner as holding that, for substitution to be appropriate, the decedent must have been alive at the time the original action was commenced. The defendant relies on the specific language from Kortner in which our Supreme Court cautioned that its decision that substitution was available was "not meant to suggest that any person who is appointed an administrator of an estate becomes a proper party to any claim. As § 52-109 requires, the substitution of an administrator of an estate 'is necessary for the determination of the real matter in dispute .' In the present case, it is clear that [ Kortner ] herself had a colorable claim of injury, therefore, the substitution of the plaintiff, as administratrix of the estate, cured any possible jurisdictional defect. " (Emphasis added.) Kortner v. Martise , supra, 312 Conn. at 14, 91 A.3d 412. We do not read this portion of Kortner as categorically barring substitution under § 52-109 in every situation in which the decedent predeceases the commencement of the original action. Rather, the court merely was observing that the decedent in Kortner had standing by virtue of the fact that she suffered a personal, particularized injury. Similarly, the decedents in the present cases suffered personal legal injuries as a result of the defendant's denials of their Medicaid applications. The defendant's reading of Kortner would effectively undermine the remedial purpose of § 52-109. Because the trial court did not issue findings as to the prerequisites for substitution under § 52-109, we conclude, consistent with Allied Associates v. Q-Tran, Inc. , 165 Conn.App. 239, 245, 138 A.3d 1104 (2016), that the judgment of dismissal must be reversed and the case remanded to the trial court for further findings. Specifically, the court must determine, in each plaintiff's case, whether (1) the plaintiff's failure to name the estate fiduciaries as plaintiffs was the result of a mistake, that is, an error, misunderstanding or misconception, and (2) whether substitution is necessary to determine the real matter in dispute. See General Statutes § 52-109. The judgments are reversed and the cases are remanded for further proceedings consistent with this opinion. In this opinion the other judges concurred. We refer to Freese and Cariglio collectively as the plaintiffs throughout this opinion, distinguishing between them only where necessary to avoid confusion. General Statutes § 52-109 provides: "When any action has been commenced in the name of the wrong person as plaintiff, the court may, if satisfied that it was so commenced through mistake, and that it is necessary for the determination of the real matter in dispute so to do, allow any other person to be substituted or added as plaintiff." Cariglio alleged that Arlene left a will that designated him and his brother Pasquale Cariglio "as coexecutors," and that the will was "in the process" of being admitted into probate. Cariglio's reference to his status as "estate examiner" appears to be a reference to General Statutes § 45a-317a, which provides in relevant part: "Any person interested in the estate of a deceased person and having a need to obtain financial information concerning the deceased person for the limited purpose of determining whether the estate may be settled as a small estate under section 45a-273, or having a need to obtain financial or medical information concerning the deceased person for the limited purpose of investigating a potential cause of action of the estate, surviving spouse, children, heirs or other dependents of the deceased person, or a potential claim for benefits under a workers' compensation act, an insurance policy or other benefits in favor of the estate, surviving spouse, children, heirs or other dependents of the deceased person, may apply to the Probate Court having jurisdiction of the estate of the deceased person for the appointment of an estate examiner.... If the court appoints an estate examiner under this section, the court may require a probate bond or may waive such bond requirement. The court shall limit the authority of the estate examiner to disclose the information obtained by the estate examiner, as appropriate, and may issue an appropriate order for the disclosure of such information. Any order appointing an estate examiner under this section, and any certificate of the appointment of a fiduciary issued by the clerk of the court, shall indicate (1) the duration of the estate examiner's appointment, and (2) that such estate examiner has no authority over the assets of the deceased person." Freese's proposed amended complaint alleged that she was aggrieved "by virtue of being administratrix of estate for [McCusker]." Cariglio's proposed second amended complaint alleged that he and Pasquale Cariglio were aggrieved "by virtue of being the coexecutors of estate for [Arlene]." The court further reasoned that permitting substitution in Freese's action would prejudice the defendant because it would permit Freese to avoid the forty-five day limitation period for filing administrative appeals. See General Statutes § 4-183(c). General Statutes § 52-599 provides in relevant part: "(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...." In both memoranda of decision, the court did not address the plaintiffs' alternative arguments that they had representative standing to appeal pursuant to the UPM. The plaintiffs also argue that, by failing to raise the issue of standing at any point during the underlying administrative proceedings before the agency, the defendant is estopped from raising it now. Because, however, subject matter jurisdiction "addresses the basic competency of the court, [it] can be raised by any of the parties, or by the court sua sponte, at any time." (Internal quotation marks omitted.) ABC, LLC v. State Ethics Commission, 264 Conn. 812, 823, 826 A.2d 1077 (2003). Moreover, "subject matter jurisdiction cannot be conferred by waiver or consent ." Manning v. Feltman, 149 Conn.App. 224, 236, 91 A.3d 466 (2014). Therefore, assuming, arguendo, that the defendant could have raised the standing issue during the administrative proceedings, the doctrine of estoppel does not apply. We note that the trial court did not conclude that Freese failed to plead facts establishing aggrievement in its memorandum of decision. That omission does not preclude us from doing so on appeal, however, because defects in subject matter jurisdiction "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.) Ajadi v. Commissioner of Correction, 280 Conn. 514, 533, 911 A.2d 712 (2006). We note that the plaintiffs in the present cases could have availed themselves of § 52-599 during the underlying administrative proceedings. Our Supreme Court has held that § 52-599(b) applies to situations in which "an executor has entered the administrative proceeding by filing an amended complaint seeking any remedy to which the deceased complainant may have been entitled ." (Emphasis omitted; internal quotation marks omitted.) Hillcroft Partners v. Commission on Human Rights & Opportunities, 205 Conn. 324, 331, 533 A.2d 852 (1987) ; see also Commission on Human Rights & Opportunities v. Greenwich Catholic Elementary School System, Inc., 202 Conn. 609, 613-14, 522 A.2d 785 (1987). The plaintiffs assert in their main brief that an administrative appeal pursuant to § 4-183"is not a new proceeding, but the continuation of an extant proceeding." Regardless of whether that is true, however, the plaintiffs needed to establish their aggrievement in order to have standing to commence their appeals, which they failed to do. Our Supreme Court held in Fairfield Merrittview Ltd. Partnership v. Norwalk, 320 Conn. 535, 133 A.3d 140 (2016), that the term "mistake" as used in § 52-109 should be interpreted according to its ordinary meaning, namely, "error, misunderstanding or misconception." Id., at 553 and n.21, 133 A.3d 140. In adopting that definition, the court disavowed its previous interpretation of "mistake" as "an honest conviction, entertained in good faith and not resulting from the plaintiff's own negligence," reasoning that such a definition was "too limiting and, practically, too difficult to apply, especially given the ameliorative purpose of § 52-109." Id., at 553-54 n.21, 133 A.3d 140. We note that the trial court did not have the benefit of our Supreme Court's decision in Fairfield Merrittview Ltd. Partnership at the time it issued its memoranda of decision dismissing the plaintiffs' appeals. In any event, the change in the definition of "mistake" does not bear on our analysis of whether the court properly denied the plaintiffs' requests for substitution. Unless specifically regulated by statute, the time frame for taking appeals in Connecticut is governed by the rules of practice. See Practice Book § 63-1(a). General Statutes (Cum. Supp. 1965) § 20-289 required the use of a citation commanding a party to appear rather than a summons, and provided in relevant part: "Any person aggrieved by an order made under this chapter may, within thirty days after the entry of such order, appeal to the superior court for the county in which he resides from such order, which appeal shall be accompanied by a citation to said board to appear before said court. Such citation shall be signed by the same authority and such appeal shall be returnable at the same time and served and returned in the same manner as is required in the case of a summons in a civil action. The authority issuing the citation shall take from the applicant a bond or recognizance to the state, with sufficient surety, to prosecute the application to effect and to comply with the orders and decrees of the court in the premises. Such application shall operate as a stay of such order pending the ultimate determination of the appeal, including an appeal to the supreme court, if any, unless otherwise ordered by the court...." Moreover, we note that, subsequent to our Supreme Court's decision in Bank Building & Equipment Corp. of America v. Architectural Examining Board, supra, 153 Conn. at 121, 214 A.2d 377, the legislature amended § 20-289 to eliminate the thirty day appeal period. Under the current version of § 20-289, "[a]ny person aggrieved by an order made under this chapter may appeal from such an order as provided in section 4-183." It bears noting that our rules of practice explicitly contemplate that the term "action" for purposes of substitution encompasses administrative appeals brought under § 4-183. Practice Book § 9-20, which is identical to § 52-109 in all material respects, provides: "When any action has been commenced in the name of the wrong person as plaintiff, the court may, if satisfied that it was so commenced through mistake, and that it is necessary for the determination of the real matter in dispute so to do, allow any other person to be substituted or added as plaintiff." (Emphasis added.) Practice Book § 14-6, which is entitled "administrative appeals are civil actions," provides: "For purposes of these rules, administrative appeals are civil actions subject to the provisions and exclusions of General Statutes § 4-183 et seq. and the Practice Book. Whenever these rules refer to civil actions, actions, civil causes, causes or cases, the reference shall include administrative appeals except that an administrative appeal shall not be deemed an action for purposes of section 10-8 of these rules or for General Statutes § 52-48, 52-591, 52-592 or 52-593." (Emphasis added.)

12490999

FINANCIAL FREEDOM ACQUISITION, LLC v. Ann T. GRIFFIN, Executrix (Estate of Angela C. Griffin), et al.

Fin. Freedom Acquisition, LLC v. Griffin

2017-09-12

(AC 38960).

41

57

170 A.3d 41

170

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-09-08T21:16:17.237805+00:00

Fastcase

FINANCIAL FREEDOM ACQUISITION, LLC v. Ann T. GRIFFIN, Executrix (Estate of Angela C. Griffin), et al.

FINANCIAL FREEDOM ACQUISITION, LLC v. Ann T. GRIFFIN, Executrix (Estate of Angela C. Griffin), et al. (AC 38960). Appellate Court of Connecticut. Argued April 11, 2017 Officially released September 12, 2017 Ronald P. Sherlock, for the appellants (named defendant et al.). Michael T. Grant, for the appellee (substitute plaintiff). Sheldon, Mullins and Flynn, Js.

8556

53838

MULLINS, J. In this action to foreclose a reverse mortgage, the defendants, Ann T. Griffin, in her representative capacity as executrix of the estate of Angela C. Griffin, and Ann T. Griffin, in her individual capacity, appeal from the judgment of strict foreclosure rendered in favor of the substitute plaintiff, OneWest Bank, N.A. On appeal, the defendants claim that the court erred in (1) concluding that the substitute plaintiff established a prima facie case of foreclosure and (2) rejecting their special defense and counterclaim sounding in breach of the implied covenant of good faith and fair dealing. We affirm the judgment of the trial court. In its December 10, 2015 memorandum of a decision, the trial court set forth the following facts. "[Angela C.] Griffin [ (decedent) ] was the owner of the real property located at 312 Milton Road, Litchfield, Connecticut (property). On or about July 23, 2008, [the decedent] executed a note and reverse annuity mortgage (mortgage) on the [p]roperty in favor of Financial Freedom Senior Funding Corporation, [a predecessor in interest to the substitute plaintiff]. . [The note and mortgage] established an open-ended line of credit not to exceed $692,180 ( [decedent's] loan). At that time, Financial Freedom [Senior Funding Corporation] advanced $378,791 to [the decedent] to pay off a loan from Deutsche Bank, which sought to foreclose on the mortgage it held on the property. Financial Freedom [Senior Funding Corporation] obtained an appraisal at the time that valued the property at $612,709. "[The decedent] . entered into the loan so that [she] could remain in the home that she had lived in for thirty years. The property is a private property that includes a colonial residence located on eleven acres of land with a pond. It has a stable and many acres of well-maintained pasture. The home was a central part of [Ann Griffin's] and [the decedent's] lives. "Since the mortgage is a reverse annuity mortgage, no principal became due until a maturity event occurred. On April 16, 2010, [the decedent] passed away, which constituted a maturity event and rendered the balance of the loan due and payable unless there was an agreement in writing between the [named] plaintiff and certain legal representatives of [the decedent] within thirty days to cooperate fully in selling the property. The [named] plaintiff and the [executrix] had no agreement in writing to this effect, and the [executrix] did not pay the balance due upon [the decedent's] death. Thus, the nonpayment constituted a default under the mortgage. . The [named] plaintiff initiated the present foreclosure action in May of 2011. "On April 30, 2010, prior to the notice of intent to foreclose, [Ann Griffin] contacted the [named plaintiff] to inform it that she intended to sell the property. The [named plaintiff's] electronic system notes indicate that [Ann Griffin] spoke with . a maturities administrator . They discussed repayment of the [decedent's] loan, and [Ann Griffin] indicated she planned to sell the property and use the proceeds of the sale to repay the debt. Subsequent to the conversation, [the maturities administrator] sent a cash account reverse mortgage repayment notice to [Ann Griffin]. The repayment notice informed [Ann Griffin] that the death of [the decedent] constituted a maturity event, that upon the occurrence of a maturity event the loan became due, and that [Ann Griffin] needed to discuss plans with [the named plaintiff] concerning repayment of the loan by sending in the enclosed repayment questionnaire. . "On May 6, 2010, the defendant[s'] counsel faxed a correspondence, attaching the death certificate and will of [the decedent], and informing [the maturities administrator] that he was representing the defendant[s]. [Ann Griffin] was appointed executrix of [the decedent's] estate on May 17, 2010. [Ann Griffin] lacked legal authority to enter into contractual agreements on behalf of the estate until such time as she was appointed executrix. "On or about June 17, 2010, the [executrix] entered into a listing agreement with [a realty company] for the sale of the property, with a listing price of $614,900 (listing agreement). On June 23, 2010, the defendant[s'] counsel sent a second correspondence to [the maturities administrator], which included the probate decree admitting the [decedent's] will to probate; a certified copy of the death certificate; a copy of the [decedent's] will; a certified probate certificate reflecting the appointment of [Ann Griffin] as executrix; and a signed copy of the listing agreement. The [named] plaintiff admitted to having received both written communications and attachments. The [named] plaintiff still had not received the repayment questionnaire . There was no agreement in writing or any other communication that demonstrated a mutual understanding to extend the repayment date." In addition to those facts expressly found by the trial court, the following supplemental facts, which also reasonably could have been found by the court, are relevant. Through a series of assignments and corporate restructurings, ownership of the decedent's loan changed several times. As previously explained, on July 23, 2008, the decedent executed a note and mortgage in favor of Financial Freedom Senior Funding Corporation, making it the original mortgagee and holder of the note. At the time the decedent executed the note in July, 2008, Financial Freedom Senior Funding Corporation was a subsidiary of IndyMac Bank, F.S.B. (IndyMac). The Federal Deposit Insurance Corporation (FDIC) had been appointed as receiver for IndyMac prior to the decedent's execution of the note and mortgage. In March, 2009, OneWest Bank, F.S.B, through its parent company, IMB HoldCo, LLC, purchased from the FDIC certain IndyMac assets, including the decedent's loan. As part of that transaction, Financial Freedom Senior Funding Corporation executed an allonge to the note, specially endorsing it to "OneWest Bank, F.S.B." The named plaintiff in this action was formed during this transaction as a subsidiary of OneWest Bank, F.S.B. At some point after it was assigned the note, OneWest Bank, F.S.B., executed an allonge to the note, endorsing it in blank. OneWest Bank, F.S.B., then transferred the note to the named plaintiff, which held it until transferring it back to OneWest Bank, F.S.B., around July, 2011. Around February, 2014, OneWest Bank, F.S.B., converted from a federal savings bank into a national banking association and, thus, became OneWest Bank, N.A., the substitute plaintiff. On August 3, 2015, which was slightly more than four years after this action was commenced, but before trial had begun, IMB HoldCo, LLC, the holding company of OneWest Bank, N.A., merged with CIT Group, the holding company of a bank called CIT Bank. As part of their holding companies' merger, OneWest Bank, N.A., and CIT Bank also merged. Specifically, "CIT Bank . merged into OneWest Bank, N.A." (Emphasis added.) Although OneWest Bank, N.A., was the surviving entity of the merger with CIT Bank, OneWest Bank, N.A., as part of the merger, changed its name to "CIT Bank, N.A." "CIT Bank, N.A.," was never substituted for OneWest Bank, N.A., as the party plaintiff in this action. Having outlined the relevant substantive facts, we now review the pertinent procedural history. The named plaintiff commenced this action in May, 2011. As previously explained, the named plaintiff was a subsidiary of OneWest Bank, N.A., which was substituted as the plaintiff in this action on September 22, 2014. Prior to the substitution of OneWest Bank, N.A., for the named plaintiff, the defendants pleaded several special defenses. Relevant to this appeal is the defendants' special defense that the named plaintiff breached the implied covenant of good faith and fair dealing. The defendants also filed a counterclaim against the named plaintiff sounding in breach of the implied covenant of good faith and fair dealing. Although the named plaintiff was removed from this action as a plaintiff by virtue of a substitution, it still is a party to the action as a counterclaim defendant. The case was tried to the court over the course of two days. At trial, the substitute plaintiff introduced the original note into evidence. Accompanying the note was an allonge specially endorsing the note to OneWest Bank, F.S.B., and an allonge wherein OneWest Bank, F.S.B., endorsed the note in blank. The substitute plaintiff also offered the testimony of Dion Kala, a vice president and foreclosure litigation manager employed by CIT Bank, N.A. In addition to working for CIT Bank, N.A., Kala also had been employed by OneWest Bank, N.A., as well as its predecessors in interest, including OneWest Bank, F.S.B., Financial Freedom Acquisition, LLC, and Financial Freedom Senior Funding Corporation. Kala provided testimony concerning the several assignments and corporate restructurings that eventually brought the note into the possession of CIT Bank, N.A. In its memorandum of decision, the court concluded that the substitute plaintiff had established a prima facie case of foreclosure and that the defendants had failed to meet their burden of proof on their special defense and counterclaim. The defendants filed a motion for articulation, asking the trial court to identify which plaintiff the court found owns the decedent's loan. In denying that motion, the court stated: "The defendant[s] rais[e] a specious claim. The plaintiff is OneWest Bank, now known as CIT Bank, N.A., because of a legal name change." The court rendered a judgment of strict foreclosure and set a law day. This appeal followed. I PRIMA FACIE CASE OF FORECLOSURE The defendants' first claim on appeal is that the trial court improperly concluded that the substitute plaintiff established a prima facie case of foreclosure. In particular, the defendants argue that the substitute plaintiff did not produce evidence sufficient to establish that it was the holder and owner of the note. According to the defendants, the substitute plaintiff's own evidence established that a "separate and different legal entity" is the owner and holder of the note. That is, as a result of a corporate merger in which the substitute plaintiff was involved after this action commenced, ownership of the note vested in a distinct entity that was never made a party to this action. Thus, the defendants argue, a nonparty entity, "CIT Bank, N.A.," owns the note, and the substitute plaintiff does not. We disagree with the defendants and conclude that their argument is flawed both in fact and in law. We begin by setting forth our standard of review. "A plaintiff establishes its prima facie case in a mortgage foreclosure action by demonstrating by a preponderance of the evidence that it is the owner of the note, that the defendant mortgagor has defaulted on the note, and that conditions precedent to foreclosure have been satisfied. . "In order to establish a prima facie case, the proponent must submit evidence which, if credited, is sufficient to establish the fact or facts which it is adduced to prove. . [W]hether the plaintiff has established a prima facie case [in a foreclosure action] is a question of law, over which our review is plenary." (Citation omitted; emphasis omitted; footnote omitted; internal quotation marks omitted.) Deutsche Bank National Trust Co. v. Bliss , 159 Conn.App. 483, 495-96, 124 A.3d 890, cert. denied, 320 Conn. 903, 127 A.3d 186 (2015), cert. denied, - U.S. -, 136 S.Ct. 2466, 195 L.Ed.2d 801 (2016). The only element of the substitute plaintiff's prima facie case that the defendants challenge on appeal is ownership of the note. Thus, we limit our review of the relevant law to the principles governing the possession and ownership of promissory notes. "Being the holder of a note satisfies the plaintiff's burden of demonstrating that it is the owner of the note because under our law, the note holder is presumed to be the owner of the debt, and unless the presumption is rebutted, may foreclose the mortgage . The possession by the bearer of a note [e]ndorsed in blank imports prima facie [evidence] that he acquired the note in good faith for value and in the course of business, before maturity and without notice of any circumstances impeaching its validity. The production of the note [endorsed in blank] establishes [the possessor's] case prima facie against the makers and he may rest there. . It [is] for the defendant to set up and prove the facts which limit or change the plaintiff's rights." (Internal quotation marks omitted.) Id., at 496, 124 A.3d 890. We now provide a review of the law governing bank mergers, which will guide our resolution of the defendants' claim that a bank merger affects the merging banks' corporate identities and, concomitantly, their ownership rights in promissory notes. Since the merger in the present case involved one banking entity merging into, and continuing as, a national banking association, we begin with a brief exposition of the National Bank Act, 12 U.S.C. § 21 et seq. (2012). "[N]ational bank[ing] [associations] . [are] corporate entities chartered not by any State, but by the Comptroller of the Currency of the U.S. Treasury." Wachovia Bank v. Schmidt , 546 U.S. 303, 306, 126 S.Ct. 941, 163 L.Ed.2d 797 (2006). Thus, "[t]he National Bank Act . governs the operations of national banking associations." Jackson v. First National Bank of Valdosta , 349 F.2d 71, 72 (5th Cir. 1965). Pursuant to the National Bank Act, a national banking association is formed by "making and filing articles of association and an organization certificate [with the Comptroller of the Currency of the United States] ." 12 U.S.C. § 21 and 24 (2012). A duly formed national banking association is "a body corporate," and the National Bank Act vests such an association with several enumerated "corporate powers." 12 U.S.C. § 24 (2012). These enumerated "corporate powers" include the power "[t]o make contracts" and the power "[t]o sue and be sued, complain and defend, in any court of law and equity ." 12 U.S.C. § 24 (2012). The National Bank Act also governs mergers and consolidations of banking entities in which the surviving entity is a national banking association. See 12 U.S.C. § 215, 215a, and 215a-1 (2012). Specifically, that act permits, among other things, (1) the "merger" of multiple national banking associations into a single national banking association; 12 U.S.C. § 215a(a) and 215a-1(a) (2012) ; and (2) the "consolidation" of a national banking association and a state bank into a national banking association. 12 U.S.C. § 215(a) and 215a-1(a) (2012). The type of entity that survives either a "merger" between multiple national banking associations or a "consolidation" between a state bank and a national banking association is the same-a national banking association. 12 U.S.C. § 215 and 215a (2012). Mergers and consolidations, although differentiated by the National Bank Act in some respects, have identical legal ramifications for the participating entities' (1) corporate identities and (2) assets. With respect to the participants' corporate identity, "[t]he corporate existence of each of the consolidating [or merging] banks or [national] banking associations participating in such consolidation [or merger] shall be merged into and continued in the [resulting] national banking association and such [resulting] national banking association shall be deemed to be the same corporation as each bank or [national ] banking association participating in the consolidation [or merger ]." (Emphasis added.) 12 U.S.C. § 215(e) (2012). That is, "[t]he resulting national bank[ing] [association] . shall be deemed to be a continuation of the entity of each participating institution, the rights and obligations of which shall succeed to such rights and obligations and the duties and liabilities connected therewith ." (Emphasis added.) 12 C.F.R. § 5.33(l )(1). With respect to the participating entities' assets, "[i]n any consolidation or merger in which the resulting [association] is a national bank[ing] [association] . on the effective date of the merger or consolidation, all assets and property (real, personal and mixed, tangible and intangible, choses in action, rights, and credits) then owned by each participating institution or which would inure to any of them, shall, immediately by operation of law . become the property of the resulting national bank [ing ] [association ] ." (Emphasis added.) Id., § 5.33(l )(1). Thus, in a merger or a consolidation, "[a]ll rights . in and to every type of property . and choses in action shall be transferred to and vested in the [resulting ] national banking association by virtue of such consolidation [or merger ] without any deed or other transfer . The [resulting] national banking association, upon the consolidation [or merger] and without any order or other action on the part of any court or otherwise, shall hold and enjoy all rights of property . in the same manner and to the same extent as such rights . were held or enjoyed by any one of the consolidating [or merging ] banks or [national ] banking associations at the time of consolidation [or merger ] ." (Emphasis added.) 12 U.S.C. § 215(e) (2012). In addition to prescribing the legal ramifications of a bank merger resulting in a national banking association, the National Bank Act outlines the process by which a national banking association may change its name. See 12 U.S.C. § 30 - 32 (2012). Specifically, it provides that "[a]ny national banking association, upon written notice to the Comptroller of the Currency, may change its name, except that such new name shall include the word 'National.' " 12 U.S.C. § 30(a) (2012). A change of name does not affect the rights and liabilities of a national banking association: "All debts, liabilities, rights, provisions, and powers of the association under its old name shall devolve upon and inure to the association under its new name." 12 U.S.C. § 31 (2012). Furthermore, a change of name does not "release any national banking association under its old name . from any liability" or "affect any action or proceeding . in which said association may be or become a party or interested." 12 U.S.C. § 32 (2012). In In re Worcester County National Bank , 263 Mass. 394, 161 N.E. 797 (1928), the Supreme Judicial Court of Massachusetts was asked to interpret the provisions of the National Bank Act governing consolidations and changes of name. In that case, a national banking association called Merchants National Bank of Worcester was appointed as the administrator of a decedent's estate in 1924. Id., at 397, 161 N.E. 797. Three years later, Merchants National Bank of Worcester was consolidated with a state bank into a surviving consolidated national banking association. Id. As part of the consolidation process, the name of the surviving consolidated national banking association was changed to "Worcester County National Bank of Worcester." Id. The question before the court was whether the national banking association's obligation to administer the decedent's estate pursuant to its appointment was affected by either (1) the consolidation or (2) the change of name. Id., at 398-400, 161 N.E. 797. Answering that question in the negative, the court first held that the "corporate identity of the national bank[ing] [association] ha[d] continued unaffected by anything in connection with the consolidation." Id., at 399, 161 N.E. 797. Despite the consolidation, the national banking association had "maintained an unbroken and unchanged identity of corporate existence ." Id., at 400, 161 N.E. 797. Second, with respect to the change of name, the court held that "[t]he simple change of name of the national bank[ing] [association] did not disturb its corporate identity or continuity of existence, which ha[d] remained uninterrupted." Id., at 399, 161 N.E. 797. Having outlined the relevant provisions of federal banking law, we now turn to Connecticut's banking law. Although Connecticut banking law applies only to banks organized under Connecticut law; see General Statutes § 36a-1 and 36a-2(12) ; it provides guidance for determining the impact of a merger of banking entities. As an initial matter, Connecticut banking law confirms the applicability of the National Bank Act to national banking associations. See General Statutes § 36a-126(b) (in merger of banks resulting in national banking association, resulting national banking association "shall be considered the same business and corporate entity as the constituent Connecticut bank . [and] as to rights, powers and duties [it] shall be a federal bank"). With respect to a banking merger resulting in a Connecticut bank, Connecticut law provides that (1) "the corporate existence of the constituent banks shall be continued by and in the resulting bank"; (2) "the entire assets . of each of the constituent banks shall be vested in the resulting bank without any deed or transfer"; (3) "[n]o suit, action or other proceeding pending at the time of the merger . before any court or tribunal in which any of such constituent banks is a party shall be abated or discontinued because of such merger . but may be continued and prosecuted to final effect by or against the resulting bank"; and (4) "[t]he resulting bank shall have the right to use the name of any of the constituent banks ." General Statutes § 36a-125(g). With federal and state banking law in mind, we seek additional guidance from the corporate law of this state and other jurisdictions relating to mergers and changes of name of nonbanking entities. In a merger of corporations governed by Connecticut law, "[a]ll property owned by, and every contract right possessed by, each corporation that merges into the survivor . vest[s] in the survivor without reversion or impairment." General Statutes § 33-820(a)(4). Furthermore, the "name of the survivor may, but need not be , substituted in any pending proceeding for the name of any party to the merger whose separate existence ceased in the merger." (Emphasis added.) General Statutes § 33-820(a)(5). Regarding the effect of a Connecticut corporation's change of name, our law provides: "An amendment to the certificate of incorporation does not affect . a proceeding to which the corporation is a party . An amendment changing a corporation's name does not abate a proceeding brought by or against the corporation in its former name ." (Emphasis added.) General Statutes § 33-803. Connecticut's corporate law is substantially similar to the provisions of the American Bar Association's Model Business Corporation Act; see, e.g., Trevek Enterprises, Inc. v. Victory Contracting Corp. , 107 Conn.App. 574, 583 n.4, 945 A.2d 1056 (2008) ("[i]n 1994, the General Assembly enacted . a comprehensive revision . designed to bring our corporations statutes into conformity with the American Bar Association's revised Model Business Corporation Act"); which has been adopted in full or in substantial part by at least thirty other states. Shawnee Telecom Resources, Inc. v. Brown , 354 S.W.3d 542, 553 (Ky. 2011). Indeed, the provisions of the Model Business Corporation Act relating to the effect of corporate mergers and changes of name are nearly identical to Connecticut law. See Model Business Corporation Act, § 11.07 (a), p. 11-89 ("[A]ll property owned by, and every contract right possessed by, each corporation or eligible entity that merges into the survivor is vested in the survivor without reversion or impairment . [Furthermore] the name of the survivor may, but need not be, substituted in any pending proceeding for the name of any party to the merger whose separate existence ceased in the merger ."); Model Business Corporation Act, § 10.09, p. 10-70 ("An amendment to the articles of incorporation does not affect . a proceeding to which the corporation is a party . An amendment changing a corporation's name does not abate a proceeding brought by or against the corporation in its former name."). Mergers of corporations and mergers of limited liability companies are treated similarly under Connecticut law. When Connecticut limited liability companies merge, "[a]ny property, real, personal and mixed, and all debts due on whatever account . and all other choses in action . belonging to or due to each party to the merger . vest[s] in the survivor without further act or deed." (Emphasis added.) General Statutes § 34-197(4). Furthermore, any "proceeding pending by or against any limited liability company that was a party to the merger . may be prosecuted as if such merger . had not taken place, or the survivor may be substituted in the action." (Emphasis added.) General Statutes § 34-197(6). The Uniform Limited Liability Company Act similarly provides that "all property of each merging entity vests in the surviving entity" and that "the name of the surviving entity may be substituted for the name of any merging entity that is a party to any pending action or proceeding ." Unif. Limited Liability Company Act § 1026 (a) (amended 2013), 6C U.L.A. 189 (2016). The rationale behind not requiring the substitution of the surviving entity's name in a pending proceeding is that "[s]uch a substitution has no substantive effect because, whether or not the survivor's name is substituted, the survivor succeeds to the claims of any party to the merger whose separate existence ceased as a result of the merger." Unif. Limited Liability Company Act § 1026 (a) (7), comment, supra, 6C U.L.A. 191. Regarding the change of a limited liability company's name, Connecticut law provides that "amend[ing] the name set forth in [the] articles of organization . [does not] dissolv[e] or otherwise chang[e] the legal entity itself." David Caron Chrysler Motors, LLC v. Goodhall's, Inc. , 304 Conn. 738, 746 n.8, 43 A.3d 164 (2012). With banking law and corporate law as our legal backdrop, we turn to the present case to determine whether the trial court properly concluded that the substitute plaintiff was the holder and owner of the promissory note executed by the decedent. Our review of the record leads us to conclude that the court's determination was legally and factually correct. At trial, the substitute plaintiff, an entity called OneWest Bank, N.A., produced the decedent's note, which had been endorsed in blank. The note was admitted into evidence during the testimony of Kala, who, at the time, was working for an entity called CIT Bank, N.A., and who previously had worked for the substitute plaintiff and the named plaintiff. Kala testified that the decedent's note currently was in the possession of "CIT Bank, N.A." According to Kala, "CIT Bank, N.A." was the name of the entity surviving the merger in which (1) CIT Bank merged into OneWest Bank, N.A., and (2) OneWest Bank, N.A., changed its name to "CIT Bank, N.A." Accordingly, the evidence presented at trial revealed that the name of the entity holding the note, "CIT Bank, N.A.," did not match the substitute plaintiff's name, "OneWest Bank, N.A." As previously explained, this discrepancy, which is the basis for the defendants' challenge to the substitute plaintiff's ownership of the note, was the result of a corporate merger during the pendency of the present action to which the substitute plaintiff was a party. Kala's uncontroverted testimony established that a bank called "CIT Bank" merged into the substitute plaintiff , which had been a national banking association prior to the merger. Thus, the type of entity surviving the merger also was a national banking association. Despite the uncertainty surrounding the substitute plaintiff's name and corporate identity caused by the merger, the trial court concluded that the substitute plaintiff was the holder and owner of the decedent's note. Our comprehensive review of federal and state banking law and state corporate law convinces us that the merger and change of name involving the substitute plaintiff did not affect its status as holder and owner of the decedent's note. Under the relevant federal and state authority, the merger to which the substitute plaintiff was party had the following consequences. First, the substitute plaintiff's corporate existence and identity continued in the resulting bank. See 12 U.S.C. § 215(e) (2012) ; 12 C.F.R. § 5.33(l )(1) ; General Statutes § 36a-125(g). Second, the substitute plaintiff's assets, including the decedent's note, vested in the resulting bank by operation of law and without any deed or transfer. See 12 U.S.C. § 215(e) (2012) ; 12 C.F.R. § 5.33(l )(1) ; General Statutes § 34-197(4) and 36a-125(g) ; Model Business Corporation Act, supra, § 11.07 (a), p. 11-89; Unif. Limited Liability Company Act § 1026 (a), supra, 6C U.L.A. 189. Third, the present action, which was pending at the time of the merger's consummation, was not abated, discontinued, or otherwise affected. See 12 U.S.C. § 32 (2012) ; General Statutes § 36a-125(g), 33-820(a)(5), and 34-197(6) ; Model Business Corporation Act, supra, § 11.07 (a), p. 11-89; Unif. Limited Liability Company Act § 1026 (a) (7), comment, supra, 6C U.L.A. 191. Last, the substitute plaintiff could have substituted the resulting bank in this action, but it was not required to do so. See General Statutes § 36a-125(g), 33-820(a)(5), and 34-197(6) ; Model Business Corporation Act, supra, § 11.07 (a), p. 11-89; Unif. Limited Liability Company Act § 1026 (a), supra, 6C U.L.A. 189. Thus, the substitute plaintiff's status as holder and owner of the note and this proceeding were not affected by the merger. Similarly, the resulting bank's change of name affected neither this proceeding nor the substitute plaintiff's status as holder and owner of the note. As a matter of law, the change of name did not (1) create a new corporate entity; (2) alter the resulting bank's corporate identity, which merely was a continuation of the substitute plaintiff's corporate identity; (3) end the resulting bank's corporate existence, which merely was a continuation of the substitute plaintiff's corporate existence; or (4) divest the resulting bank of the substitute plaintiff's assets, which had vested in the resulting bank as a result of the merger. See 12 U.S.C. § 30, 32, and 215(e) (2012) ; General Statutes § 36a-125(g) ; In re Worcester County National Bank, supra, 263 Mass. at 399-400, 161 N.E. 797. Furthermore, the change of name did not abate, discontinue, or otherwise affect this proceeding, and it did not require the substitute plaintiff to substitute the resulting bank's new name in this proceeding. See 12 U.S.C. § 32 (2012) ; General Statutes § 33-803, 33-820(a)(5), 34-197(6), and 36a-125(g) ; In re Worcester County National Bank , supra, 263 Mass. at 399, 161 N.E. 797 ; Model Business Corporation Act, supra, § 10.09, p. 10-70. In light of the foregoing, we conclude that the substitute plaintiff's production of the decedent's note endorsed in blank, like in any other foreclosure action, created a rebuttable presumption that the substitute plaintiff was the note's owner. See Deutsche Bank National Trust Co. v. Bliss , supra, 159 Conn.App. at 496, 124 A.3d 890. It was incumbent on the defendants then to marshal facts rebutting that presumption. See id. For the reasons already identified, the merger and change of name of which the defendants complain do not call into question the substitute plaintiff's ownership of the decedent's note. Thus, on the basis of the record before us, we conclude that the substitute plaintiff established, and the defendants did not rebut, that the substitute plaintiff owned the note. In exercising plenary review over the defendants' claim, we conclude that the court's determination that the substitute plaintiff owns the decedent's note was factually and legally correct. Accordingly, we conclude that the court properly concluded that the substitute plaintiff established a prima facie case of foreclosure. II THE DEFENDANTS' SPECIAL DEFENSE AND COUNTERCLAIM The defendants' second claim is that the trial court erroneously found that the defendants failed to meet their burden of proof with respect to their special defense and counterclaim sounding in breach of the implied covenant of good faith and fair dealing. Specifically, the defendants argue that a provision in the note executed by the decedent permitted the decedent's estate to avoid its obligation to repay the loan upon the decedent's death if it cooperated with the named plaintiff in selling the decedent's property. In light of that provision, the defendants contend, the covenant of good faith and fair dealing implied into the note required the named plaintiff, upon the decedent's death, to communicate with the executrix for the purpose of facilitating the sale of the decedent's property. Thus, according to the defendants, the named plaintiff breached the covenant of good faith and fair dealing when it initiated a foreclosure action and filed a lis pendens instead of communicating with the executrix to facilitate such a sale. We disagree. The following additional facts and procedural history are necessary to our resolution of the defendants' second claim. In response to the named plaintiff's foreclosure complaint, the defendants filed a special defense and a counterclaim alleging that the named plaintiff breached the covenant of good faith and fair dealing implied into the note. In particular, the defendants predicated their theory of the breach of the covenant of good faith and fair dealing on the provision in the note establishing the date on which repayment of the loan was due. That provision, § 6 of the note, provided in relevant part: "All amounts owed under this Agreement become due and payable . upon the first occurrence of a Maturity Event . unless [the decedent] default[s] . [The decedent] must repay the outstanding balance in one large or 'balloon' payment upon the occurrence of a Maturity Event or, if sooner, [when the decedent defaults]." Pursuant to that provision, the death of the decedent generally constituted a "Maturity Event" requiring immediate repayment of the loan. The provision also permitted, however, the named plaintiff and the decedent's estate to extend the repayment date upon the decedent's death: "If [the decedent's] administrator, devisees, estate, executors, heirs, legatees or personal representative . agree[s] with [the named plaintiff] in writing within thirty (30) days after the death of the [decedent] . then repayment . will not be due until six months after the death of the [decedent], or such other date as may be provided in that written agreement ." In the event that the parties entered such a written agreement, the decedent's estate also would have to promise in that agreement "to cooperate fully with [the named plaintiff] in selling the Property, including listing the Property for sale, caring for the Property and making any necessary repairs to the Property prior to its sale ." With the relevant contractual provisions in mind, the thrust of the defendants' allegations in their special defense and counterclaim are as follows. Section 6 of the note provided that, upon the decedent's death, the executrix had two options-immediately repay the loan or cooperate with the named plaintiff in selling the decedent's property. If the executrix elected the second option, repayment of the loan would not be due until six months after the decedent's death or on whatever date to which the parties agreed. The executrix elected to cooperate in selling the property. Specifically, she maintained the property, made repairs to the property, obtained appraisals of the property, and listed the property for sale with a real estate agency. Thus, since the executrix chose to cooperate with the named plaintiff in selling the property, the named plaintiff was not entitled to immediate repayment of the loan and it had to communicate with the executrix to facilitate the property's sale. Failing to communicate with the executrix for that purpose, and instead filing a foreclosure action and a lis pendens, the named plaintiff failed to act in good faith and deal fairly with the executrix. At trial, the parties introduced evidence of various correspondences that they had with each other following the decedent's death on April 16, 2010. On April, 30, 2010, the named plaintiff sent the decedent's estate a letter informing it that the "loan is due and payable." On that same day, a telephone conversation, the contents of which were disputed by the parties, occurred between Ann Griffin and an employee of the named plaintiff. The testimony of the named plaintiff's employee, which was corroborated by tracking notes of the conversation maintained by the named plaintiff, indicated that she informed Ann Griffin that the estate had three months to repay the loan. Ann Griffin denied that the named plaintiff's employee informed her that the loan had to be repaid within three months. On May 6, 2010, the defendants' attorney sent the named plaintiff a copy of the decedent's death certificate and will. On June 23, 2010, the defendants' attorney sent the named plaintiff a copy of the probate court's decree, a probate certificate reflecting Ann Griffin's appointment as executrix of the decedent's estate, and a copy of an agreement between the decedent's estate and a real estate agent to list and sell the decedent's property. On July 7, 2010, the executrix informed the named plaintiff that she had listed the decedent's property for sale. On July 21, 2010, the named plaintiff sent the executrix a Notice of Intent to Foreclose, requiring that she repay the loan within thirty days. On July 29, 2010, the defendants' attorney sent a letter to the named plaintiff responding to the named plaintiff's Notice of Intent to Foreclose. In that letter, the defendants' attorney warned that initiating foreclosure proceedings "would constitute a patent breach of the contractual obligations" because the loan agreement provided that "repayment of the loan is not required until six months after the death of [the decedent]," and the defendants "fully cooperated . as required by the [loan agreement]." On August 6 and September 8, 2010, the executrix again called the named plaintiff, informing it that the property still was on the market. The trial court concluded that the defendants failed to meet their burden of proof with respect to their special defense and counterclaim sounding in breach of the implied covenant of good faith and fair dealing. Specifically, it reasoned that the defendants' "special defense and counterclaim . [sought] to enforce nonexistent obligations under the [note]." Moreover, it found that there was no written agreement between the named plaintiff and the defendants extending the repayment due date and that there was no meeting of the minds between the parties regarding a repayment extension. With these additional facts in mind, we begin our analysis of the defendants' second claim by setting forth the relevant legal principles. "[W]ith any issue of contract interpretation, we begin with the language of the contract." Poole v. Waterbury , 266 Conn. 68, 90, 831 A.2d 211 (2003). "Although ordinarily the question of contract interpretation, being a question of the parties' intent, is a question of fact . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law. . When only one interpretation of a contract is possible, the court need not look outside the four corners of the contract." (Citation omitted; internal quotation marks omitted.) Id., at 88-89, 831 A.2d 211. "[I]t is axiomatic that the . duty of good faith and fair dealing is a covenant implied into a contract or a contractual relationship. . In other words, every contract carries an implied duty requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement. . The covenant of good faith and fair dealing presupposes that the terms and purpose of the contract are agreed upon by the parties and that what is in dispute is a party's discretionary application or interpretation of a contract term. . "To constitute a breach of [the implied covenant of good faith and fair dealing], the acts by which a defendant allegedly impedes the plaintiff's right to receive benefits that he or she reasonably expected to receive under the contract must have been taken in bad faith. . Bad faith in general implies both actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive. . Bad faith means more than mere negligence; it involves a dishonest purpose." (Internal quotation marks omitted.) Capstone Building Corp. v. American Motorists Ins. Co. , 308 Conn. 760, 794-95, 67 A.3d 961 (2013). Critically, our Supreme Court has stated that the covenant of good faith and fair dealing "is not implicated by conduct that does not impair contractual rights." Id., at 795, 67 A.3d 961. "In Renaissance Management Co. v. Connecticut Housing Finance Authority , [281 Conn. 227, 240, 915 A.2d 290 (2007) ], for example, [the Supreme Court] held that the defendant housing authority's refusal to accept mortgage prepayments, in order to facilitate new loans for owners of low income housing, did not violate the covenant of good faith and fair dealing when the agency was not contractually obligated to accept prepayments. In so holding, we reasoned that [t]he covenant of good faith and fair dealing presupposes the terms and purpose of the contract are agreed upon by the parties and that what is in dispute is a party's discretionary application or interpretation of a contract term." (Emphasis omitted; internal quotation marks omitted.) Capstone Building Corp. v. American Motorists Ins. Co. , supra, at 795, 67 A.3d 961. Indeed, we previously have observed that "[m]ost courts decline to find a breach of the covenant apart from a breach of an express contract term . . Stated otherwise, the claim [that the covenant has been breached] must be tied to an alleged breach of a specific contract term ." (Citation omitted; emphasis added; internal quotation marks omitted.) Landry v. Spitz , 102 Conn.App. 34, 47, 925 A.2d 334 (2007) ; see also Forte v. Citicorp Mortgage, Inc. , 90 Conn.App. 727, 733-34, 881 A.2d 386 (2005) (mortgagee did not violate covenant of good faith and fair dealing by failing to allow mortgagor to refinance "because the note and the mortgage [did] not guarantee or discuss any right to refinance"); Southbridge Associates, LLC v. Garofalo , 53 Conn.App. 11, 15, 17, 728 A.2d 1114 (covenant of good faith and fair dealing not implicated by mortgagee's refusal to sell note to mortgagor because "loan documents [did] not contain a provision requiring a holder of the notes and mortgages to negotiate with or sell the notes to [mortgagor] prior to enforcing its foreclosure rights"), cert. denied, 249 Conn. 919, 733 A.2d 229 (1999). In the present case, the defendants' theory of breach of the covenant of good faith and fair dealing is predicated on the provision in the note prescribing the date on which repayment of the loan was due. In construing that provision, the trial court concluded that it did not obligate the named plaintiff to extend the repayment due date. Our construction of that provision conforms to the trial court's construction. Our plenary review of the relevant contractual language reveals the following. The provision first sets out a general rule: The death of the decedent is a maturity event that makes the loan immediately due and payable. It subsequently provides, however, an exception to that general rule: "If [the decedent's estate] . agree[s] with [the named plaintiff ] in writing within thirty . days after the [decedent's] death . to cooperate fully with [the named plaintiff] in selling the Property . then repayment . will not be due until six months after the [decedent's] death . or such other date as may be provided in that written agreement ." (Emphasis added.) Thus, the unambiguous language of the provision permits, but does not require, the parties to extend the repayment deadline by entering into a separate written agreement . The defendants' interpretation of the repayment provision belies the plain, unambiguous meaning of the provision's language. The defendants mistakenly construe the provision as granting the executrix a right to unilaterally extend the repayment deadline and as imposing upon the named plaintiff an obligation to honor the executrix's unilateral decision to extend the deadline. The provision guarantees no such right to the executrix and imposes no such obligation on the named plaintiff. The fact that the provision uses the terms "agree" and "agreement" with respect to an extension indicates that such an extension can be created only by the parties' mutual assent . See Black's Law Dictionary (10th Ed. 2014) (defining "agreement" as "manifestation of mutual assent by two or more persons" and "agree" as act of "exchang[ing] promises"). Thus, in the absence of a written agreement extending the deadline to allow the executrix to sell the decedent's home, the named plaintiff had no obligation to undertake any action facilitating the executrix's sale of the property, e.g., communicating with the executrix regarding the sale. As previously explained, the trial court found that there was no evidence that the parties entered into such a written agreement. After reviewing the record, we conclude that this finding is not clearly erroneous. Indeed, a review of all of the correspondences between the parties reveals that there is no document that fairly can be characterized as a written agreement wherein both parties agree to extend the repayment deadline. The record discloses that the executrix certainly represented to the named plaintiff that she was maintaining the property and planning on selling it, but it does not disclose that the named plaintiff agreed in writing to extend the repayment deadline. In light of the foregoing, we conclude that the defendants' special defense and counterclaim sounding in breach of the covenant of good faith and fair dealing must fail. The special defense and counterclaim are not predicated on a breach of an express term in the note; Landry v. Spitz , supra, 102 Conn.App. at 47, 925 A.2d 334 ; and the named plaintiff's conduct did not impair any contractual right of the decedent or her estate. Capstone Building Corp. v. American Motorists Ins. Co. , supra, 308 Conn. at 795, 67 A.3d 961. That is, the note guaranteed no contractual right to an extension to sell the property, and, consequently, the named plaintiff did not breach the terms of the note by never agreeing to such an extension. Moreover, since it properly never agreed to an extension, the named plaintiff was not obligated to take any action facilitating the executrix's sale of the property pursuant to a nonexistent extension agreement. In doing so, the named plaintiff retained its right under the note to receive immediate repayment of the loan upon the decedent's death. Thus, by initiating foreclosure proceedings and filing a lis pendens, the named plaintiff merely was enforcing its contractual rights, not acting in bad faith to impair the rights of the decedent and her estate. Accordingly, we conclude that the trial court properly rejected the defendants' counterclaim and special defense based on a breach of the covenant of good faith and fair dealing. The judgment is affirmed. In this opinion the other judges concurred. A brief explanation of the numerous parties involved in this action is necessary. Regarding the plaintiffs, this action was commenced by Financial Freedom Acquisition, LLC. The successor in interest to Financial Freedom Acquisition, LLC, OneWest Bank, N.A., subsequently was substituted for Financial Freedom Acquisition, LLC. Although Financial Freedom Acquisition, LLC, was removed from this action as a plaintiff, it still is a party to the action as a counterclaim defendant. Thus, throughout this opinion, we refer to OneWest Bank, N.A., as the substitute plaintiff and Financial Freedom Acquisition, LLC, as the named plaintiff and counterclaim defendant. Regarding the defendants, the named plaintiff brought this action against seven defendants. Five of the defendants, John T. Griffin, Mary K. Griffin, Thomas V. Griffin, Pauline Griffin Voghel, and the Connecticut Department of Revenue Services, are nonappearing. The two appearing defendants are Ann T. Griffin, in her individual capacity, and Ann T. Griffin, in her capacity as executrix of the estate of Angela C. Griffin. In this opinion, we use "Ann Griffin" to refer to Ann T. Griffin in her individual capacity, "the executrix" to refer to Ann T. Griffin in her capacity as executrix, and "the defendants" to refer to Ann T. Griffin in both her individual and representative capacities. Mergers of partnerships also receive similar treatment under Connecticut law. See General Statutes § 34-33f (in merger of limited partnerships, "all property, real, personal and mixed . and choses in action . shall be vested in [surviving] limited partnership without further act or deed," and any "action or proceeding . pending . against [one of the merging entities] may be prosecuted as if such merger or consolidation had not taken place, or . [the] survivor may be substituted in its place"); General Statutes § 34-389(a) (in merger of limited liability partnerships, "[a]ll property owned by each of the merged partnerships vests in the survivor," and "[a]n action or proceeding pending against a partnership that is a party to the merger may be continued as if the merger had not occurred, or the survivor may be substituted as a party to the action or proceeding"). Number 16-97 of the 2016 Public Acts repealed the Connecticut Limited Liability Company Act, § 34-100 et seq., effective July 1, 2017. On the effective date, the Connecticut Uniform Limited Liability Company Act replaced the Connecticut Limited Liability Company Act. With respect to the provisions governing the effect of mergers, the repealed act and the Uniform Act do not differ substantially. See Public Acts 2016, No. 16-97, § 91 (a) ("[w]hen a merger becomes effective . [a]ll property owned by each merging limited liability company that ceases to exists vests in the surviving limited liability company . [and] [a]n action or proceeding pending . against any merging limited liability company that ceases to exist may be continued as if the merger had not occurred"). The defendants also draw our attention to another aspect of the merger at issue that supposedly calls into question the substitute plaintiff's ownership of the note. Specifically, the defendants argue that the trial court erred in failing to address how the substitute plaintiff's ownership of the note was affected by the fact that the merger also involved the acquisition of the substitute plaintiff's parent company by CIT Bank's parent company. We fail to see how this aspect of the merger undermines the substitute plaintiff's ownership of the note. There is nothing in the record suggesting that the merger caused the substitute plaintiff to relinquish its status as an entity legally separate from its parent company, whoever that might have been after the merger. SFA Folio Collections, Inc. v. Bannon, 217 Conn. 220, 232, 585 A.2d 666 ("it is a fundamental principle of corporate law that the parent corporation and its subsidiary are treated as separate and distinct legal persons even though the parent owns all the shares in the subsidiary"), cert. denied, 501 U.S. 1223, 111 S.Ct. 2839, 115 L.Ed.2d 1008 (1991). Indeed, the record reveals that the substitute plaintiff merged with another subsidiary, CIT Bank, not the parent company of CIT Bank. Furthermore, as previously explained, notwithstanding the change of name, the substitute plaintiff survived the merger because CIT Bank merged into the substitute plaintiff. Regardless of whose subsidiary the substitute plaintiff became as a result of the merger, it remained "a separate legal entity possessing its own separate assets and liabilities." Capital Parks, Inc. v. Southeastern Advertising & Sales System, Inc., 30 F.3d 627, 629 (5th Cir. 1994) ; see also Wright v. JPMorgan Chase Bank, N.A., 169 So.3d 251, 252 (Fla. App. 2015) ("[a]s a separate legal entity, a parent corporation . cannot exercise the rights of its subsidiary" [internal quotation marks omitted] ). The rule that the assets of a parent company and its subsidiary are separate has obvious implications in the foreclosure context. That is, "ownership of the note by [a] subsidiary . does not give [a] parent corporation . the right to enforce the note ." Wright v. JPMorgan Chase Bank, N.A., supra, at 252. Accordingly, we are convinced that the substitute plaintiff, not its parent's company, owns the note and is the proper plaintiff in this foreclosure action.

12491107

Robert PRITSKER v. Jo-Ann KEATING et al.

Pritsker v. Keating

2017-10-10

No. 39308

117

117

171 A.3d 117

171

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-09-08T21:16:17.237805+00:00

Fastcase

Robert PRITSKER v. Jo-Ann KEATING et al.

Robert PRITSKER v. Jo-Ann KEATING et al. No. 39308 Appellate Court of Connecticut. Argued September 13, 2017 Officially released October 10, 2017

28

184

Per Curiam. The judgment is affirmed.

12505116

INDEPENDENT PARTY OF CT-STATE CENTRAL et al. v. Denise W. MERRILL, Secretary of the State, et al.

Indep. Party of CT-State Cent. v. Merrill

2019-02-19

SC 20165

1118

1150

200 A.3d 1118

200

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

2021-09-08T21:16:17.237805+00:00

Fastcase

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

INDEPENDENT PARTY OF CT-STATE CENTRAL et al. v. Denise W. MERRILL, Secretary of the State, et al.

INDEPENDENT PARTY OF CT-STATE CENTRAL et al. v. Denise W. MERRILL, Secretary of the State, et al. SC 20165 Supreme Court of Connecticut. Argued October 19, 2018 Officially released February 19, 2019 Eliot B. Gersten, with whom was Johanna S. Katz, Hartford, for the appellants (plaintiffs). Maura Murphy Osborne, assistant attorney general, with whom, on the brief, was George Jepsen, former attorney general, for the appellee (named defendant). William M. Bloss, with whom were Alinor C. Sterling, and Emily B. Rock, Bridgeport, for the appellees (defendant Michael Telesca et al.). Robinson, C.J., and Palmer, Mullins, Kahn, Ecker and Vertefeuille, Js.

15674

97998

ROBINSON, C.J. This appeal is the latest battle in the war for control over the state's Independent Party between its Danbury faction, which is led by the plaintiffs, the Independent Party of CT-State Central and its officers, Michael Duff, Donna L. LaFrance, and Roger Palanzo, and its Waterbury faction, which is led by two of the defendants, Michael Telesca and Rocco Frank, Jr. The plaintiffs appeal from the judgment of the trial court, rendered after a bench trial, for Telesca and Frank on the complaint and the counterclaim in the present action, which both sought declaratory and injunctive relief. Specifically, the trial court ordered the named defendant, Secretary of the State Denise W. Merrill, to accept candidate endorsements made pursuant to the Independent Party's 2010 bylaws (2010 bylaws), which, in effect, gave the Waterbury faction control over the Independent Party's statewide nominations. There are two principal issues among the plaintiffs' plethora of claims in the present appeal. First, we consider whether the trial court's order of supplemental briefing and oral argument concerning its subject matter jurisdiction, issued just prior to the 120 day decision deadline pursuant to General Statutes § 51-183b, and after the plaintiffs' objection to the trial court's request for an extension, preserved its personal jurisdiction over the parties by stopping and later restarting the decision period. The second principal issue is whether the trial court properly determined that General Statutes § 9-374, which requires the filing of party rules before the name of a candidate endorsed by a minor political party may be printed on an election ballot, rendered the 2010 bylaws controlling, as opposed to bylaws that the Danbury faction had filed with the Secretary in 2006 (2006 bylaws) prior to the Independent Party's receiving the 1 percent of statewide votes necessary to confer minor party status. Because we conclude that the order of supplemental briefing and argument opened the 120 day decision period and later restarted it, thus rendering the trial court's decision timely under § 51-183b, and also conclude that the trial court properly construed § 9-374, we affirm the judgment of the trial court. The record reveals the following relevant facts, as found by the trial court, and procedural history. The genesis of the current Independent Party dates to 2003, when Telesca and others formed the Waterbury Independent Party (Waterbury party), "to run candidates for local office as an alternative to the major parties." The Waterbury party "endorsed a full slate of candidates for municipal elections in Waterbury and [saw] eight people [elected] to office, each of whom received more than 1 percent of the vote in [his or her] individual [race]. Because the candidates received at least 1 percent of the vote in each of those races, the Waterbury [party] was eligible for minor party status for those offices. Thereafter, Waterbury electors could register as Independent Party members for local elections. After the 2003 Waterbury municipal elections, the [Secretary] sent a letter to the Waterbury [party] requesting that it submit party rules. In 2004, the Waterbury [party] drafted bylaws on how to conduct caucuses and created a nominating process for future races. Telesca's goal was to build a new statewide third party to help people get ballot access around the state. The Waterbury [party] bylaws were filed with the [Secretary and the] Waterbury town clerk ." "In 2004, the Waterbury [party] decided to run candidates in races for state representative and state [senator] in the Waterbury area.... Around this time, Telesca learned about a separate Independent Party that had been formed in Danbury headed by [Robert] Fand that had reserved the name ['Independent Party for the 30th Senate District' (Danbury party) ]. Because the Danbury [party] had already reserved the party designation of Independent Party for the 30th Senate District, the Waterbury [party] was not allowed to nominate a candidate for that election. In 2004, Telesca and Fand reached an agreement that the Waterbury [party] would not operate in Danbury and the Danbury [party] would not operate in Waterbury.... "In 2006, the Waterbury [party] attempted to reserve the name 'Independent Party' statewide but was not able to do so because there were local parties using the name 'Independent' in both Danbury and Waterbury. The [Secretary] would not allow two different parties with any part of the same name on the ballot at the same time. In 2006, Telesca and [his colleague, John] Mertens learned from the [Secretary] that they needed to get the local independent parties to come together in order to . petition for statewide offices. In 2006, Telesca and Fand joined together and signed and filed a form [ED-601 with the Secretary] as members of the Independent Party Designation Committee, but they failed to obtain enough signatures to get ballot access for any statewide office. As a result, there was no statewide minor party established in that year.... "In September 2006, Fand, [John L.] Dietter, and LaFrance filed a form ED-48 with the [Secretary] designating themselves as the three members of the party committee for the 'Independent Party of CT-State Central.' . At the same time, these individuals filed the 2006 bylaws, which consisted of one page [entitled] 'Party Rules Amended.' . The introductory paragraph of those rules states that the committee 'adopts the following rules for the establishment of local committees and nomination of candidates.' . The final paragraph of the 2006 bylaws . indicates that the rules were passed unanimously at the meeting of the 'State Central Committee of the Independent Party of Connecticut on [September 27, 2006],' and is signed by . Dietter [as] Chairman . LaFrance [as] Treasurer, and . Fand [as] Deputy Treasurer ." (Citations omitted; footnote added.) "In 2008, Fand and Telesca [again] joined together to create a statewide Independent Party. There were other Independent Party chapters in the state at this time, including ones in Winsted and Milford. Telesca assisted those chapters by providing information regarding the election process. The immediate goal in 2008 was to run Ralph Nader as a candidate for president . and achieve 1 percent of the vote, which would establish the Independent Party as a statewide minor party. See General Statutes § 9-372(6). In a joint effort to accomplish this goal, Telesca and Fand both signed and filed [a] form ED-601 . as the designated agents of the Independent Party. The form designated the name Independent Party not only for president, vice president, and electors, but also for state senate districts 24, 28, and 11, state assembly districts 110 and 96, United States congressmen for the third and fifth districts, and for several registrar of voters and probate judge races." (Footnote added.) The trial court credited Telesca's testimony that, "because there were different rules for the various local parties in the state who controlled the Independent Party line for their localities, he and Fand agreed that they would need to create a new set of bylaws to accomplish their joint goal of creating a statewide minor party. Without a statewide party, a local Independent Party could oppose a statewide candidate for any office by reserving the same or a similar party designation for [its town]. Running . Nader for president provided a clear path toward garnering 1 percent of the vote and establishing a statewide minor party. Once Nader achieved over 1 percent of the vote in the 2008 presidential election, the [Secretary] certified the Independent Party as a minor party and notified all town registrars of voters of the Independent Party's new status as a statewide minor party.... Subsequently, anyone in the state could register to vote as a member of the Independent Party. "Following the 2008 election, Telesca and Mertens drafted bylaws for the new statewide party. Telesca sent out [between] 700 [and] 800 postcards about a meeting to be held on March 20, 2010, concerning proposed bylaws to any registered member of the Independent Party who had voted in the last two elections. Mertens created a website and posted the proposed bylaws on it months in advance of the meeting. Telesca put an advertisement in the Hartford Courant announcing the meeting/caucus and gave advance notice to the [Secretary]. Telesca also sent Fand a postcard and gave him a copy of the proposed bylaws before the meeting, which Fand acknowledged. Telesca and [his colleague Mary] Iorio met with Fand about the bylaws for the new statewide party before the meeting was held. "On March 20, 2010, the Independent Party held a meeting in Waterbury of registered Independent Party members from around the state to ratify the [2010] bylaws for the new statewide party. At the meeting, Fand did not object either to the meeting, the idea of creating bylaws for the new statewide party, or the bylaws themselves, [and also did not] request any changes to the [2010] bylaws as proposed. There was an agenda for the meeting and a sign-up sheet. Only registered Independent Party members were allowed to vote on the [2010] bylaws. The vote to approve the bylaws was unanimous. The [2010] bylaws were filed with the [Secretary] on March 22, 2010 . No objections were filed with the [Secretary] within sixty days of the filing date." (Citation omitted.) "A caucus was held on August 21, 2010, to nominate Independent Party candidates for placement on the November 2, 2010 ballot. The 2010 bylaws were used to guide the nomination process at the caucus. The Independent Party got ballot access for statewide offices in 2010 by going through the petitioning process for candidates and by filing a form ED-601 . The purpose of the caucus was to endorse candidates for certain offices and to ratify endorsements for other offices that had been made through the petitioning process. At a meeting held on August 21, 2010, immediately prior to the caucus, Telesca was authorized to preside over the statewide caucus, file all paperwork regarding the upcoming state elections, and to act as the agent and acting chairman of the Independent Party. "Following the caucus, a document confirming the nominations and endorsements of the statewide Independent Party candidates for the 2010 election was filed with the [Secretary]. The document was signed by Telesca as presiding officer of the caucus, and LaFrance and Fand as agents of the Independent Party.... At the time, Fand and LaFrance constituted two-thirds of the [Independent Party of CT-State Central]. The [Secretary] subsequently approved a revised list of nominees on September 8, 2010.... All of the candidates were nominated pursuant to the 2010 bylaws. The new statewide Independent Party subsequently published a political advertisement showing its endorsed candidates for the 2010 election.... "[On the basis of] the evidence presented at trial, in the 2010 election cycle, there was no conflict between the Waterbury and Danbury factions of the Independent Party." (Citations omitted.) Indeed, the trial court also found that there "was no evidence of conflict between the Waterbury and Danbury factions in the 2008, 2009, 2010, or 2011 election cycles. The 2006 bylaws were not used by the Independent Party to nominate anyone for president in 2008 or for statewide office in 2008, 2010, 2012, or 2014. The Danbury faction did not object to the caucuses held pursuant to the 2010 bylaws to nominate candidates for statewide office in either 2010 or 2012. On June 10, 2012, the Independent Party held a caucus to elect the officers of the statewide party." The conflict between the factions that led to litigation first developed in early 2012, when "Fand invited Telesca to a meeting with Danbury mayor Mark Boughton in an effort to gain Telesca's support for Boughton as the endorsed candidate of the Independent Party [for governor]. Boughton hoped to run for governor as the next nominee of the Republican Party. Telesca refused to give Fand his assurance, as chairman of the Independent Party, that he would endorse Boughton for governor and informed Fand that the Independent Party's endorsement of candidates was up to the party membership, not him. After that meeting, Telesca and Fand's relationship soured. "Because Nader received more than 1 percent of the vote in 2008 presidential election, the Independent Party was able to nominate and endorse a candidate for the 2012 presidential election without having to go through the petitioning process. On August 21, 2012, the Independent Party held a caucus, conducted pursuant to the 2010 bylaws, to nominate and endorse a presidential candidate for 2012. The votes were limited to Independent Party members. At the caucus, Rocky Anderson was selected as the presidential nominee of the Independent Party. Although the 2006 bylaws reserved the right of the Danbury faction to make the Independent Party's nomination for president, the nomination for president was decided at the August 21, 2012 caucus [pursuant to] the 2010 bylaws without objection. Because Anderson failed to garner at least 1 percent of the vote for president, the Independent Party lost its presidential ballot line for the 2016 presidential election. "In 2014, the Independent Party held a statewide caucus and nominated candidates pursuant to the 2010 bylaws. No one objected to the use of the 2010 [bylaws] for Independent Party nominations in the 2014 statewide elections. In 2015, local Independent Party chapters nominated candidates for municipal elections. In 2016, the Danbury faction and the Waterbury faction nominated different candidates for the Independent Party's state senate endorsement for one particular race. On August 23, 2016, the Danbury faction held an endorsement event at which nominations for president, vice president, United States Senate, United States House of Representatives, state senate and state [house] were made and thereafter filed with the [Secretary]. Notice of the meeting was given pursuant to General Statutes § 9-452a.... Telesca attended that endorsement meeting and voted no without comment when the nominees were presented for a vote. Telesca did not challenge how Duff, the presiding officer, conducted the meeting. Nor did Telesca challenge anyone's right to vote at the meeting. Telesca filed a complaint with the State Elections Enforcement Commission against the current members of the [Danbury faction], Duff, LaFrance, Palanzo and others. The [Waterbury faction] also selected nominees at an event noticed for that purpose which were also filed with the [Secretary]. Where there were competing nominations, the [Secretary] did not accept either nomination for placement on the ballot. A major point of contention between the two factions is that the Waterbury faction believes that the Danbury faction is merely a proxy for the Republican Party and not truly representative of the Independent Party." (Citation omitted; footnote omitted; internal quotation marks omitted.) The plaintiffs then brought the present action for declaratory and injunctive relief, which is the latest in a line of lawsuits arising from the conflict between the Waterbury and Danbury factions. The case was tried to the court, Hon. A. Susan Peck , judge trial referee, on October 11, 17, and 18, 2017, with posttrial oral argument on March 23, 2018. Following supplemental briefing and oral argument with respect to whether the political question doctrine deprived the trial court of subject matter jurisdiction over this case, on August 21, 2018, the trial court issued a lengthy memorandum of decision in which it concluded that it had subject matter jurisdiction over this case and rendered judgment for the defendants on the complaint. With respect to its specific findings of fact and conclusions of law, the trial court first concluded as a matter of statutory interpretation that the 2010 bylaws were controlling under the statutory scheme governing minor parties, in particular § 9-374 and 9-372(6), the "plain language of [which] indicates that a minor party does not exist in Connecticut until it designates a candidate for office who achieves 1 percent of the vote." The trial court further observed that, in contrast to the 2010 bylaws, which were created in a statewide process after Nader's nomination in 2008, the 2006 bylaws were filed with the Secretary at a time when "the party so-named had not achieved minor party status for any statewide office." Thus, the trial court determined that the "2006 bylaws are valid only to the extent they are recognized as such within the local committee. Although the plaintiffs filed the 2006 bylaws with the [Secretary], the filing of these rules merely allowed the [Danbury faction] to nominate local candidates and get them on an official ballot once they had attained 1 percent of the vote for a particular office. The 2006 bylaws did not automatically allow the [Danbury faction] to gain control of the statewide Independent Party after the 2008 presidential election." (Footnote omitted.) Accordingly, the trial court concluded that "the only statewide Independent Party was created post-2008, and the 2010 bylaws are the only valid governing rules of that party." The trial court also rejected the plaintiffs' additional arguments about why the 2006 bylaws should be considered controlling. With respect to those relevant to this appeal, the trial court first considered the plaintiffs' conduct subsequent to the adoption of the 2010 bylaws and concluded that "the defendants have established by a preponderance of the evidence submitted in this case [their special defense alleging] that the plaintiffs have waived any right they may have had to challenge the validity of the 2010 bylaws." The trial court also rejected the plaintiffs' contention that a 2012 decision issued by Judge Mark H. Taylor in Independent Party of Connecticut v. Dietter , Superior Court, judicial district of Waterbury, Docket No. CV-12-5016387-S, 2012 WL 4902807 (September 28, 2012) (2012 Waterbury action), which had concluded "that the 2006 bylaws were the validly adopted Independent Party rules," was entitled to preclusive effect in the present case. The trial court reasoned that the 2012 Waterbury action was distinguishable because it did not concern statewide office, addressed only "a motion for a temporary order of mandamus, and . was [subsequently] withdrawn." Accordingly, the trial court concluded that the plaintiffs "failed to establish by a preponderance of the evidence that they are entitled to the declaratory and injunctive relief requested in their second amended complaint," which would have given them control over the Independent Party. Instead, the trial court concluded that "the defendants . have established by a preponderance of the evidence that the 2010 bylaws are the validly adopted and operative bylaws of the Independent Party/Independent Party of Connecticut, filed pursuant to the requirements of § 9-374, and that [Telesca and Frank] are the duly elected officers of the Independent Party/Independent Party of Connecticut, and the individual plaintiffs are not. In addition, the court hereby declares that the 2006 bylaws apply only to the Danbury faction's local committee of the Independent Party. Finally, the court hereby declares and orders that the [Secretary] must accept only the nominations and endorsements of the Independent Party/Independent Party of Connecticut, made pursuant to the 2010 bylaws filed with the [Secretary] on March 22, [2010], or as may be amended, pursuant to . § 9-374." According to the plaintiffs, this order effectively "gives the Waterbury faction, under the leadership of Telesca and Frank, control of the statewide ballot line." This expedited appeal followed. See footnote 2 of this opinion. On appeal, the plaintiffs claim that the trial court (1) lost personal jurisdiction over this case when it failed to render judgment within 120 days as required by § 51-183b, (2) improperly construed § 9-374 in concluding that the 2010 bylaws are controlling, (3) improperly declined to give preclusive effect to Judge Taylor's decision in the 2012 Waterbury action, (4) committed clear error in finding that they had waived their objections to the 2010 bylaws, (5) crafted an order that violated their constitutional rights, and (6) abused its discretion in permitting the defendants to amend their answer to assert special defenses and counterclaims. Additional relevant facts and procedural history will be set forth in the context of each of these claims as necessary. I WHETHER § 51-183B DEPRIVED THE TRIAL COURT OF PERSONAL JURISDICTION Relying primarily on Foote v. Commissioner of Correction , 125 Conn. App. 296, 8 A.3d 524 (2010), and Waterman v. United Caribbean, Inc. , 215 Conn. 688, 577 A.2d 1047 (1990), the plaintiffs first claim that the trial court lost personal jurisdiction over this case because it failed to issue its decision within 120 days after oral argument and posttrial briefing as required by § 51-183b. The plaintiffs argue that their refusal to consent to the extension of time requested by the trial court deprived it of authority to issue the decision after 120 days had passed, and that countenancing the trial court's attempt to extend the deadline by raising subject matter jurisdictional questions at the last minute would remove the "teeth" from § 51-183b. The plaintiffs further argue that it was improper for the trial court to raise subject matter jurisdictional questions so late in the process because the parties had mentioned these issues repeatedly earlier in the proceedings. In response, the defendants contend that the trial court's decision was timely under § 51-183b because its order of supplemental briefing and argument concerning its subject matter jurisdiction, which was filed prior to the expiration of the original 120 day decision period, had the effect of stopping and then restarting the 120 day decision period after the court heard supplemental arguments on August 3, 2018. We agree with the defendants and conclude that the trial court's order requiring supplemental briefing to address a colorable jurisdictional issue had the effect of stopping the 120 day decision period, which then started anew after supplemental arguments, thus rendering its decision timely under § 51-183b. The record reveals the following additional relevant facts and procedural history. On July 17, 2018, four days before the trial court's decision was due pursuant to § 51-183b, the trial court left voice mail messages for the parties, requesting a sixty day extension to issue the decision and asking them to file certain additional proposed orders. On July 18, 2018, the defendants filed proposed orders and did not comment as to timeliness. That same day, the plaintiffs filed a response declining to submit additional filings and refusing to waive the 120 day decision deadline, stating that a decision was needed to facilitate plans for the 2018 elections in light of the upcoming September 5, 2018 nomination filing deadline pursuant to General Statutes § 9-452. On July 19, 2018, the trial court issued an order directing the parties to brief the question of whether the court had subject matter jurisdiction over the case under, inter alia, the political question doctrine, and to appear for oral argument on that issue on August 3, 2018. Following oral argument, on August 21, 2018, the trial court issued a comprehensive memorandum of decision addressing both the jurisdictional issue and the merits of the various claims made by the parties. At the outset, we note that the plaintiffs' claim concerns the application of the case law interpreting § 51-183b to the undisputed facts, which raises a question of law over which our review is plenary. See, e.g., Tomlinson v. Tomlinson , 305 Conn. 539, 546, 46 A.3d 112 (2012) ; see also Gilmore v. Pawn King, Inc. , 313 Conn. 535, 542, 98 A.3d 808 (2014) ("we do not write on a clean slate when this court previously has interpreted a statute" [internal quotation marks omitted] ). "[I]n past cases interpreting § 51-183b and its predecessors, we have held that the defect in a late judgment is that it implicates the trial court's power to continue to exercise jurisdiction over the parties before it.... We have characterized a late judgment as voidable rather than as void . and have permitted the lateness of a judgment to be waived by the conduct or the consent of the parties.... [A]n unwarranted delay in the issuance of a judgment does not automatically deprive a court of personal jurisdiction. Even after the expiration of the time period within which a judge has the power to render a valid, binding judgment, a court continues to have jurisdiction over the parties until and unless they object. It is for this reason that a late judgment is merely voidable, and not void." (Citation omitted; internal quotation marks omitted.) Foote v. Commissioner of Correction , supra, 125 Conn. App. at 300-301, 8 A.3d 524, quoting Waterman v. United Caribbean, Inc. , supra, 215 Conn. at 692, 577 A.2d 1047 ; see also Commission on Human Rights & Opportunities ex rel. Arnold v. Forvil , 302 Conn. 263, 269-70, 25 A.3d 632 (2011) (noting that § 51-183b concerns personal rather than subject matter jurisdiction). The "completion date" of trial, for purposes of starting the 120 day period, includes the filing of briefs and completion of oral argument because "briefing of the legal issues [is] a component of the judicial gathering of the materials necessary to a well reasoned decision. In related contexts, 'completion' has been held to encompass the availability of all the elements directly or indirectly to be considered in the rendering of a decision." Frank v. Streeter , 192 Conn. 601, 604, 472 A.2d 1281 (1984) ; see also Fibre Optic Plus, Inc. v. XL Specialty Ins. Co. , 125 Conn. App. 399, 406, 8 A.3d 539 (2010) ("completion date" includes any oral argument heard subsequent to filing of briefs), cert. granted, 300 Conn. 907, 12 A.3d 1003 (2011) (appeal withdrawn February 14, 2012), and cert. granted, 300 Conn. 907, 12 A.3d 1003 (2011) (appeal withdrawn February 28, 2012). Our decision in Commission on Human Rights & Opportunities ex rel. Arnold v. Forvil , supra, 302 Conn. at 263, 25 A.3d 632, controls the plaintiffs' claim in the present appeal. In that case, we followed the Appellate Court's decision in Statewide Grievance Committee v. Ankerman , 74 Conn. App. 464, 470, 812 A.2d 169, cert. denied, 263 Conn. 911, 821 A.2d 767 (2003), and concluded that, "when a trial court properly reopens a case during the pendency of the 120 day statutory time period, the completion of proceedings scheduled on the date the proceedings were reopened constitutes the relevant completion date for purposes of commencing the 120 day limitation period for rendering judgment." (Emphasis added.) Commission on Human Rights & Opportunities ex rel. Arnold v. Forvil , supra, at 271, 25 A.3d 632 ; see also Statewide Grievance Committee v. Ankerman , supra, at 470, 812 A.2d 169 (trial court's order that attorney appear at hearing on disposition of grievance proceedings opened 120 day period). Thus, under Forvil , the trial court's order requiring supplemental briefing and argument within 120 days had the effect of stopping the decision period and then restarting it after supplemental arguments were heard. The plaintiffs' reply brief relies, however, on Waterman v. United Caribbean, Inc. , supra, 215 Conn. at 688, 577 A.2d 1047, for the proposition that their July 18, 2018 refusal to consent to a late decision deprived the trial court of authority to render a late judgment. See id., at 694, 577 A.2d 1047 (concluding that parties could not withdraw their prejudgment refusal to consent upon subsequently learning of favorable judgment). We understand the plaintiffs to argue that, under Waterman , their refusal to extend the deadline acted, as a matter of law, to block the court from subsequently reopening the decision period in any way, even to address a jurisdictional issue. We disagree with this reading of Waterman . First, that case is factually distinguishable from the present case because the trial court in Waterman took no steps to open the 120 day period prior to its expiration and had not asked for consent until after the lapse of the 120 day period. See id., at 690, 577 A.2d 1047 ("[b]y a letter dated October 5, 1988, which acknowledged that a judgment had not been rendered within the 120 day period . the trial court asked the parties to consent to an extension of time until December 15, 1988" [emphasis added] ). In contrast to Waterman , the trial court in the present case acted to reopen the jurisdictional period by requesting supplemental briefing and argument while it still had personal jurisdiction because the 120 day period had not yet elapsed. Second, beyond the trial court's inherent discretion to seek supplemental briefing and argument on factual or legal issues in the case, the plaintiffs' Waterman argument, insofar as it concerns the trial court's decision to raise a colorable question of subject matter jurisdiction, squarely conflicts with the axiom that questions about subject matter jurisdiction issues may be raised at any time, including by the court, sua sponte, and on appeal. See, e.g., Angersola v. Radiologic Associates of Middletown, P.C. , 330 Conn. 251, 265, 193 A.3d 520 (2018). Indeed, in Machado v. Taylor , 326 Conn. 396, 404, 163 A.3d 558 (2017), we recently concluded that it "would contravene well settled law" to allow "delay or laches [to preclude] a jurisdictional challenge." In so concluding, we emphasized that "[t]he objection of want of jurisdiction may be made at any time," including by the court sua sponte, and that "[t]he requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings." (Emphasis omitted; internal quotation marks omitted.) Id. ; see also id. (concluding that trial court improperly denied motion to dismiss "and render[ed] judgment in favor of the plaintiff without first resolving whether the defendant's motion raised a colorable jurisdictional issue, and, if so, whether it had jurisdiction over the cause of action"). In the present case, we conclude that the trial court's order requiring supplemental briefing stopped the 120 day decision period, which then restarted after supplemental arguments were heard, thus rendering the trial court's decision in this case timely under § 51-183b, notwithstanding the plaintiffs' earlier refusal to consent to the requested extension. Accordingly, § 51-183b did not operate to deprive the trial court of the personal jurisdiction over the parties required to decide this case. II WHETHER § 9-374 RENDERS THE 2010 BYLAWS CONTROLLING We next address the second principal issue in this appeal, namely, whether the trial court improperly construed § 9-374 in concluding that the 2010 bylaws, filed after Nader's tally of 1 percent of the vote in the 2008 election afforded the Independent Party statewide status for the first time, were controlling over the 2006 bylaws previously filed by the Danbury faction. The plaintiffs argue that the trial court's construction of § 9-374 has the effect of improperly supplying nonexistent statutory language because, as enacted by the legislature, the statute "contains no requirement" that a party refile its bylaws with the Secretary "upon achieving minor party status." The plaintiffs rely on "[p]ublic policy and common sense," arguing that the trial court's construction of the statute "would create a burdensome and tedious exercise for minor parties that the statutory scheme does not anticipate [or] facilitate," insofar as it would require that "new bylaws . be filed every time the Independent Party wins new minor party status for a given office ." In response, the defendants contend that, under General Statutes § 1-2z, the court's construction of § 9-374 must consider the definition of minor party in a related statute, § 9-372(6), and that, because the Independent Party did not receive 1 percent of the vote until 2008, "[n]o matter how the plaintiffs styled it, the 2006 filing was not the filing of a statewide minor party." We agree with the defendants and conclude that, under § 9-374, the 2010 bylaws govern the statewide Independent Party. Whether § 9-374 renders the 2010 bylaws controlling "presents a question of statutory construction over which we exercise plenary review.... When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply.... In seeking to determine that meaning . § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.... When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation." (Internal quotation marks omitted.) Marchesi v. Board of Selectmen , 328 Conn. 615, 627-28, 181 A.3d 531 (2018). Beginning with the statutory text, § 9-374 provides in relevant part: "In the case of a minor party, no authority of the state or any subdivision thereof having jurisdiction over the conduct of any election shall permit the name of a candidate of such party for any office to be printed on the official ballot unless at least one copy of the party rules regulating the manner of nominating a candidate for such office has been filed in the office of the Secretary of the State at least sixty days before the nomination of such candidate. In the case of a minor party, the selection of town committee members and delegates to conventions shall not be valid unless at least one copy of the party rules regulating the manner of making such selection has been filed in the office of the Secretary of the State at least sixty days before such selection is made. A copy of local party rules shall forthwith be also filed with the town clerk of the municipality to which they relate. Party rules shall not be effective until sixty days after the filing of the same with the Secretary of the State.... The term 'party rules' as used in this section includes any amendment to such party rules. When any amendment is to be filed as required by this section, complete party rules incorporating such amendment shall be filed, together with a separate copy of such amendment." (Emphasis added.) Section 9-374 sets forth two operative time periods with respect to the filing of the party rules. First, the statute requires minor parties to file their party rules with the Secretary "at least sixty days" before nominating a candidate or selecting town committee members and delegates to conventions, and precludes state or municipal officials from putting such candidates on the ballot unless such a filing has been made. Second, § 9-374 provides that such party rules "shall not be effective until sixty days after the filing of the same with the Secretary of the State." Given this time frame, we agree that the plaintiffs' reading of § 9-374 is plausible, insofar as there is no statutory language precluding a minor party from filing its party rules before a given point in time, or rendering those rules ineffective if filed early, and reading § 9-374-standing by itself-in such a manner might conceivably run afoul of the maxim that, in construing statutes, "[w]e are not permitted to supply statutory language that the legislature may have chosen to omit." (Internal quotation marks omitted.) State v. Josephs , 328 Conn. 21, 27, 176 A.3d 542 (2018). We do not, however, read § 9-374 by itself. Section 1-2z counsels us to construe statutes in light of related provisions, as we are "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.) State v. Fernando A. , 294 Conn. 1, 21, 981 A.2d 427 (2009) ; see also, e.g., Gilmore v. Pawn King, Inc. , supra, 313 Conn. at 555-56, 98 A.3d 808 ("in interpreting a statute, [r]elated statutory provisions, or statutes in pari materia, often provide guidance in determining the meaning of a particular word" [internal quotation marks omitted] ). Thus, we read § 9-374 in conjunction with § 9-372(6), which defines " '[m]inor party' " as "a political party or organization which is not a major party and whose candidate for the office in question received at the last-preceding regular election for such office , under the designation of that political party or organization, at least one per cent of the whole number of votes cast for all candidates for such office at such election ." (Emphasis added.) This definitional statute suggests that a minor party simply does not exist-for purposes of the ballot-unless and until its candidate receives 1 percent of the vote for a particular office at the last preceding regular election. Put differently, this definition suggests that there is nothing-at least under the contemplation of the statutory scheme-for those bylaws to govern until a putative party's candidate receives 1 percent of the vote for an office. Another related statute, namely, General Statutes § 9-453u, which governs applications to reserve party designations for candidates on the ballot by petition, further supports this reading. The designation of a candidate under § 9-453u is a precursor to minor party status, and that provision makes clear that a minor party is conceptually distinct under the statutory scheme from an organization seeking a party designation. See General Statutes § 9-453u(c)(3) and (4) (precluding designation of party name that "incorporate[s] the name of any minor party which is entitled to nominate candidates for any office which will appear on the same ballot with any office included in the statement" or is "the same as any party designation for which a reservation with the secretary is currently in effect for any office included in the statement"). These provisions indicate that a minor party simply does not exist for purposes of our election laws until its candidate receives 1 percent of the vote, thus triggering an obligation to file party rules and creating a party line on the ballot for the next election. Because a minor party does not exist prior to that point, ipso facto, party rules filed prior thereto simply have no effect with respect to the obligations of the Secretary. Although there is no legislative history to illuminate the meaning of the statutes further, we observe that limiting the effective party rules to those filed after the putative minor party's candidate receives 1 percent of the vote, along with the sixty day period before those rules take effect, has the salutary effect of allowing the party to take shape and potentially eliminate the confusion sown by factional disputes, such as that in this case. The statutory framework also reflects the organic nature of the development of statewide parties like the Independent Party that have their genesis in a conglomeration of smaller or local groups, each with their own history and political interests. Accordingly, we conclude that the trial court properly determined that the 2010 bylaws are the effective party rules of the Independent Party, because they were filed after Nader received 1 percent of the vote as a statewide candidate. III ADDITIONAL CLAIMS Beyond the principal issues in this appeal, the plaintiffs also raise numerous other claims. Specifically, the plaintiffs contend that the trial court improperly (1) failed to afford preclusive effect to Judge Taylor's decision in the 2012 Waterbury action, (2) determined that they had waived their rights to challenge the adoption of the 2010 bylaws, (3) adopted a construction of § 9-374 that violated the parties' constitutional rights, and (4) permitted the defendants to amend their answer to add special defenses and counterclaims after the close of evidence. See footnote 6 of this opinion. Because we conclude that all of these claims lack merit, we briefly address each in turn. A Preclusive Effect of 2012 Waterbury Action The plaintiffs contend that the trial court's decision improperly conflicts with Judge Taylor's decision in the 2012 Waterbury action; see Independent Party of Connecticut v. Dietter , supra, Superior Court, Docket No. CV-12-5016387-S; an action brought and withdrawn by the Waterbury faction after Judge Taylor denied its motion for a temporary order of mandamus based on his finding that the "Independent Party did not follow the amendment procedures provided in the 2006 [bylaws] for the adoption of amendments to those rules in 2010." The plaintiffs argue that Judge Taylor's decision was well reasoned and considered "essentially the same issues between essentially the same parties," and that the trial court in this case should have accorded it preclusive effect given the defendants' "gamesmanship" in withdrawing that action upon receipt of an adverse ruling. In response, the defendants contend that Judge Taylor's decision in the 2012 Waterbury action lacks preclusive effect in the present case because it was specifically intended to be a preliminary decision rendered on an expedited basis and not a final judgment on the merits. We agree with the defendants and conclude that Judge Taylor's decision in the 2012 Waterbury action has no preclusive effect with respect to the present case. The record reveals the following additional relevant facts and procedural history. In one chapter of this dispute between the parties; see footnote 9 of this opinion; the officers of the Waterbury faction and its nominees for the 16th senate district and the 106th assembly district brought the 2012 Waterbury action against the Secretary, the officers of the Danbury faction, and their corresponding house and senate candidates, seeking a declaration and an order directing the Secretary to place the Waterbury faction's candidates on the ballot for the 2012 election. Independent Party of Connecticut v. Dietter , supra, Superior Court, Docket No. CV-12-5016387-S. In that case, Judge Taylor observed that the "essential dispute between the parties revolve[d] around the validity and proper adoption of political party rules following the Independent Party of Connecticut's qualification as a minor political party for presidential elections, inter alia, which occurred after the 2008 election." Id. Along with their complaint, the Waterbury faction filed a motion seeking a temporary order of mandamus. Id. After conducting an evidentiary hearing and receiving memoranda of law on an expedited basis, the court issued a decision denying that motion. Id. Although Judge Taylor agreed with the Waterbury faction's claim that "the 2006 [bylaws] concerning the party nomination process are extremely general and do not so much as state the vote required for a local committee or caucus endorsement," he nevertheless rejected its argument that the 2006 bylaws did not comply with § 9-374, concluding that "there are no specific requirements listed in the statute to guide a political party in adopting party rules 'regulating the manner of nominating a candidate .' " Id. Judge Taylor then observed that the "question presented is whether the [Waterbury faction] properly convened a caucus of the Independent Party of Connecticut in 2010 to amend the 2006 [bylaws] and [to] elect new officers pursuant to the newly adopted 2010 [bylaws]. The court finds that the [Waterbury faction] did not follow the amendment procedures provided in the 2006 [bylaws] for the adoption of amendments to those rules in 2010. The court further finds that the 2010 amendments made to the 2006 [bylaws] occurred at a caucus of the [Waterbury faction] pursuant to a statute that is inapplicable to the amendment of state party rules. These findings lead to the court's conclusion that the [Waterbury faction] has failed to establish a clear legal right to the performance of a duty by the [Secretary] necessary for the issuance of an order of mandamus in this case." Id. Judge Taylor emphasized, however, that, "[t]hus far in this case . the court has held only an expedited hearing on a preliminary [m]otion for a [t]emporary [order of] [m]andamus. The court notes that there has not yet been a full opportunity for an exploration into the questions raised at the preliminary hearing as to whether the 2006 [bylaws ] are fatally inconsistent with state elections statutes , other than § 9-374 standing alone. The 2006 [bylaws] appear to be vintage party rules, allowing for strong party leadership through a self-perpetuating central committee, holding a veto over party endorsements that appear inconsistent with more modern and open party rules and procedures. These issues would be more thoroughly considered in a motion to dismiss, which the [Danbury faction] has not yet filed. Accordingly, in light of the inextricable link between the issue of standing and the merits of the [Waterbury faction's] underlying claims, the court will postpone a determination of the jurisdictional issue." (Emphasis added.) Id. After Judge Taylor's ruling on the motion for a temporary order of mandamus, the Waterbury faction subsequently withdrew the 2012 Waterbury action. Whether the preclusion doctrine of collateral estoppel or res judicata applies is a question of law subject to plenary review. See, e.g., MacDermid, Inc. v. Leonetti , 328 Conn. 726, 738-39, 183 A.3d 611 (2018). "Although res judicata and collateral estoppel often appear to merge into one another in practice, analytically they are regarded as distinct." Weiss v. Weiss , 297 Conn. 446, 458-59, 998 A.2d 766 (2010). "The doctrine of res judicata provides that [a] valid, final judgment rendered on the merits by a court of competent jurisdiction is an absolute bar to a subsequent action between the same parties . upon the same claim or demand.... Res judicata prevents a litigant from reasserting a claim that has already been decided on the merits.... Under claim preclusion analysis, a claim-that is, a cause of action-includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose.... Moreover, claim preclusion prevents the pursuit of any claims relating to the cause of action which were actually made or might have been made.... [T]he essential concept of the modern rule of claim preclusion is that a judgment against [the] plaintiff is preclusive not simply when it is on the merits but when the procedure in the first action afforded [the] plaintiff a fair opportunity to get to the merits.... Stated another way, res judicata is 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.... [W]here a party has fully and fairly litigated his claims, he may be barred from future actions on matters not raised in the prior proceeding." (Citations omitted; emphasis altered; internal quotation marks omitted.) Id., at 459-60, 998 A.2d 766. "[I]t is significant that the doctrine of res judicata provides that [a] judgment is final not only as to every matter which was offered to sustain the claim, but also as to any other admissible matter which might have been offered for that purpose.... The rule of claim preclusion prevents reassertion of the same claim regardless of what additional or different evidence or legal theories might be advanced in support of it." (Internal quotation marks omitted.) Id., at 463, 998 A.2d 766. Similarly, the "fundamental principles underlying the doctrine of collateral estoppel are well established. The common-law doctrine of collateral estoppel, or issue preclusion, embodies a judicial policy in favor of judicial economy, the stability of former judgments and finality.... Collateral estoppel, or issue preclusion, is that aspect of res judicata which prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties upon a different claim.... For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment.... "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.... If an issue has been determined, but the judgment is not dependent [on] the determination of the issue, the parties may relitigate the issue in a subsequent action.... Before collateral estoppel applies [however] there must be an identity of issues between the prior and subsequent proceedings. To invoke collateral estoppel the issues sought to be litigated in the new proceeding must be identical to those considered in the prior proceeding.... In other words, collateral estoppel has no application in the absence of an identical issue.... Further, an overlap in issues does not necessitate a finding of identity of issues for the purposes of collateral estoppel." (Citations omitted; emphasis altered; internal quotation marks omitted.) MacDermid, Inc. v. Leonetti , supra, 328 Conn. at 739-40, 183 A.3d 611. Finality of judgment is critical because "the preclusive effects of res judicata and collateral estoppel depend upon the existence of a valid, final judgment on the merits by a court of competent jurisdiction." Slattery v. Maykut , 176 Conn. 147, 157, 405 A.2d 76 (1978) ; see also id. ("a judgment of a court having jurisdiction of the parties and of the subject matter operates as res judicata in the absence of fraud or collusion even if obtained by default, and is just as conclusive an adjudication between the parties of whatever is essential to support the judgment as when rendered after answer and complete trial"); Corey v. Avco-Lycoming Division , 163 Conn. 309, 317-18, 307 A.2d 155 (1972) (decisions of administrative board acting in judicial capacity are entitled to res judicata effect), cert. denied, 409 U.S. 1116, 93 S.Ct. 903, 34 L.Ed.2d 699 (1973). This need for finality reflects the fact that the application of preclusion doctrines can have "dramatic consequences for the party against whom the doctrine is applied." (Internal quotation marks omitted.) Cumberland Farms, Inc. v. Groton , 262 Conn. 45, 59, 808 A.2d 1107 (2002). Accordingly, courts have held that preliminary decisions, such as on preliminary injunctions or other temporary orders, are not entitled to preclusive effect, particularly when the court makes clear that it is a "tentative ruling . not intended as a final decision on the merits. Ordinarily, findings of fact and conclusions of law made in a preliminary injunction proceeding do not preclude reexamination of the merits at a subsequent trial." Irish Lesbian & Gay Organization v. Giuliani , 143 F.3d 638, 644 (2d Cir. 1998) ; see also id., at 644-46 (treating District Court's earlier decision as on merits and subject to res judicata effect, rather than about whether to grant preliminary injunction, because it dismissed plaintiff's claims after hearing and "gave no indication that this ruling was tentative or done without prejudice, and [the plaintiff] did not dispute the dismissal at the time"); Gawker Media, LLC v. Bollea , 129 So.3d 1196, 1204 (Fla. App. 2014) ("we are not convinced that a ruling at such a provisional stage in the proceedings should have preclusive effect," and preliminary injunction rulings may be given preclusive effect only if "the prior decision is based on a decisive determination and not on the mere likelihood of success"); Malahoff v. Saito , 111 Haw. 168, 182 n.16, 140 P.3d 401 (2006) (grant of preliminary injunction is "not a final judgment sufficient for collateral estoppel purposes" unless intended as final resolution [internal quotation marks omitted] ). Declining to accord the effect of finality to preliminary decisions, such as on preliminary injunctions or other temporary orders, is consistent with the observation of the United States Supreme Court that such orders are often issued with "haste" and are "customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits." University of Texas v. Camenisch , 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981). Having reviewed Judge Taylor's decision in the 2012 Waterbury action, it is clear that he rendered it on an expedited basis as, in essence, a preliminary injunction ruling, without benefit of full exploration of the questions raised. Judge Taylor specifically emphasized that his denial of the Waterbury faction's motion for a temporary order of mandamus was tentative and not a final judgment on the merits. Accordingly, we conclude that the trial court properly declined to give preclusive effect to Judge Taylor's decision in the 2012 Waterbury action. B Special Defense of Waiver The plaintiffs next claim that the trial court "improperly intervened in the party's internal affairs" because the 2010 bylaws are "invalid" given that the defendants did not follow the amendment procedure contained in the 2006 bylaws. In this vein, the plaintiffs also contend that the trial court improperly held for the defendants with respect to the special defense of waiver; the plaintiffs contend specifically that the trial court improperly found that they had waived any right to challenge the validity of the 2010 bylaws, because, since 2012, they have operated in accordance with Judge Taylor's decision in the 2012 Waterbury action, which held that the 2010 bylaws were not a properly executed amendment of the 2006 bylaws. In addition to renewing their statutory argument that the 2006 bylaws were not binding on the statewide Independent Party, which was a new entity that did not exist until after the 2008 election, the defendants also contend that the trial court properly found that the plaintiffs waived objection to the 2010 bylaws by "their acquiescence in the process of their adoption and in the use of those bylaws, with their express consent, to govern subsequent nominations and endorsements." We agree with the defendants and conclude that the trial court's finding that the plaintiffs had waived any objection to the use of the 2010 bylaws to govern Independent Party proceedings was not clearly erroneous. "Waiver is a question of fact.... [W]here the factual basis of the court's decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.... Therefore, the trial court's conclusions must stand unless they are legally or logically inconsistent with the facts found or unless they involve the application of some erroneous rule of law material to the case.... "Waiver is the intentional relinquishment or abandonment of a known right or privilege.... Waiver is based upon a species of the principle of estoppel and where applicable it will be enforced as the estoppel would be enforced.... Estoppel has its roots in equity and stems from the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed . "Waiver does not have to be express, but may consist of acts or conduct from which waiver may be implied.... In other words, waiver may be inferred from the circumstances if it is reasonable to do so." (Citations omitted; internal quotation marks omitted.) AFSCME, Council 4, Local 704 v. Dept. of Public Health , 272 Conn. 617, 622-23, 866 A.2d 582 (2005) ; accord RBC Nice Bearings, Inc. v. SKF USA, Inc. , 318 Conn. 737, 747, 123 A.3d 417 (2015) ; see also DeLeo v. Equale & Cirone, LLP , 180 Conn. App. 744, 758-60, 184 A.3d 1264 (2018) (finding that defendant did not waive noncompete clause in partnership agreement was not clearly erroneous, despite defendant's statement encouraging plaintiff to take clients and that he did not want to hurt plaintiff, because defendant never denied existence or enforceability of noncompete clause and reiterated accounting firm's intention to adhere to partnership agreement, which required compensation when departing partner took clients); Santos v. Zoning Board of Appeals , 144 Conn. App. 62, 66-67, 71 A.3d 1263 (concluding that trial court's finding that plaintiff had waived 120 day decision deadline under § 51-183b"by executing multiple agreements to extend the period for the court to render judgment" was clearly erroneous because plaintiff "seasonably objected" to late decision and agreements "set forth a specific date beyond which their consent to a late judgment would not extend"), cert. denied, 310 Conn. 914, 76 A.3d 630 (2013) ; Grey v. Connecticut Indemnity Services, Inc. , 112 Conn. App. 811, 815-16, 964 A.2d 591 (2009) (trial court's finding that defendant waived right to arbitration was not clearly erroneous because she "acted inconsistently with her contractual right to arbitration" by litigating case in court for three years before moving to compel arbitration on eve of trial). We conclude that the trial court's factual finding of waiver with respect to the 2010 bylaws was not clearly erroneous and was, moreover, consistent with the court's legal conclusion under § 9-374 and its underlying findings-namely, that the Independent Party, as constituted in contemplation of the 2008 election, was a newly formed political party that had roots in various local independent parties around the state, including those from Danbury and Waterbury. Thus, the record amply supports the trial court's findings of "numerous indicators that the plaintiffs have waived their right to contest the validity of the 2010 bylaws." For example, the trial court properly credited testimony by Telesca and Mertens in finding that that Telesca and Fand "actively worked together starting in 2008 to create a statewide Independent Party in 2008 by petitioning to get Nader ballot access for the office of [the] president of the United States. Both Fand and Telesca filed a joint ED-601 party designation form on behalf of the Independent Party on May 5, 2008." (Footnote omitted.) After Nader received the requisite 1 percent of the vote, "Telesca and Mertens then began drafting bylaws for the new statewide party in an effort to comply with § 9-374. They sent the bylaws they drafted to local Independent Party town committee chairs, and arranged for a statewide party meeting/caucus to vote on the proposed bylaws." (Footnote added.) As the trial court found, Telesca and Iorio "met personally with Fand to discuss the proposed bylaws; Fand did not object to the planned meeting, nor did he object to the idea of creating new bylaws for the statewide party or to the bylaws themselves. After the bylaws were unanimously adopted at the March 20, 2010 party meeting and later filed with the [Secretary], neither Fand nor any other member of the Danbury faction objected to them," either at the meeting or after they were filed with the Secretary. "Moreover, when the Independent Party held a caucus on August 21, 2010, to endorse candidates for various offices pursuant to the 2010 bylaws, Fand and other members of the Danbury faction attended the meeting and did not question or object to their use. In addition, both Fand and LaFrance, two-thirds of the [Danbury faction], signed the endorsement form filed with the Waterbury town clerk and the [Secretary] along with Telesca, which specified the candidates that the Independent Party had endorsed for the 2010 elections at the August 21 meeting." The 2010 bylaws also governed the 2011 municipal election cycle, with no objection by Fand or the Danbury faction. "Fand and others in the Danbury faction also used the 2010 bylaws to govern [statewide] nominations/endorsements for the 2010, 2012 and 2014 election cycles without any objection," including the presidential election in 2012. As the trial court found, Fand and the Danbury faction "did not call the legitimacy of the 2010 bylaws into question until sometime in 2012 when [Fand and Telesca] first disagreed about the nomination of Mark Boughton, the Republican mayor of Danbury, who was hoping for the endorsement of the Independent Party in connection with his gubernatorial ambitions in 2012." Accordingly, the trial court found that "there is nothing in the law that prevented Telesca from filing the 2010 bylaws with the [Secretary], and that the plaintiffs' knowledge about the drafting and adoption of such bylaws and their failure to object demonstrate their de facto acceptance of them." We conclude that the trial court did not commit clear error in finding, with respect to the special defense of waiver, that "the defendants have established by a preponderance of the evidence submitted in this case that the plaintiffs have waived any right they may have had to challenge the validity of the 2010 bylaws." C Constitutional Claims The plaintiffs next argue that the trial court's decision violated the parties' rights under the first amendment to the United States constitution and article first, § 14, of the Connecticut constitution by directing the Secretary to accept only those Independent Party nominations "made pursuant to the 2010 bylaws ." They contend that this order is an improper interference with the Independent Party's right to choose its candidates in accordance with its own desires and hurts the party by depriving the Danbury faction of the right to make an endorsement even when the Waterbury faction has not made a competing endorsement, thus adversely affecting the entire party's chance to maintain the ballot line for future elections. In response, the defendants contend, inter alia, that this claim is unreviewable because the plaintiffs did not raise it before the trial court. The defendants also argue that the trial court's "disposition of the parties' dispute [with an order to the Secretary] was a necessary and appropriate judicial action" to which the plaintiffs had agreed at trial, because they named her as a defendant and explained to the trial court the necessity of an order directed to the Secretary given her office's long established policy of not accepting a minor party's nomination for an office when there is a conflicting nomination under the same party designation. We agree with the defendants and conclude that the plaintiffs waived their constitutional claim by inducing any claimed error. The plaintiffs' failure to raise their constitutional claim before the trial court ordinarily would not be fatal to appellate review, insofar as we could consider it under the bypass doctrine of State v. Golding , 213 Conn. 233, 239-40, 567 A.2d 823 (1989). See, e.g., Gleason v. Smolinski , 319 Conn. 394, 402 n.10, 125 A.3d 920 (2015) ( Golding doctrine applies in civil cases); see also State v. Elson , 311 Conn. 726, 750-51, 91 A.3d 862 (2014) ( Golding review is available when record is adequate and claim fully briefed, even without specific invocation of doctrine or acknowledgment of unpreserved nature of claim). It is well settled, however, that Golding review is not available when the claimed constitutional error has been induced by the party claiming it. See, e.g., State v. Coward , 292 Conn. 296, 305, 972 A.2d 691 (2009) ; State v. Cruz , 269 Conn. 97, 106-107, 848 A.2d 445 (2004). "[A] party cannot take a path at trial and change tactics on appeal." (Internal quotation marks omitted.) State v. Martone , 160 Conn. App. 315, 327, 125 A.3d 590, cert. denied, 320 Conn. 904, 127 A.3d 187 (2015). "[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 [allegedly] 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 error and induced constitutional error.... The invited error doctrine rests [on principles] of fairness, both to the trial court and to the opposing party.... [W]hether we call it induced error, encouraged error, waiver, or abandonment, the result-that the . claim is unreviewable-is the same." (Citations omitted; internal quotation marks omitted.) Id., at 328, 125 A.3d 590. Our review of the record leads us to conclude that the plaintiffs induced the claimed constitutional error in this case by naming the Secretary as a defendant and seeking an order directed to her. In their posttrial memorandum of law, the plaintiffs explained that the Secretary "remains as the first named [d]efendant for two reasons. First, the [Secretary] practices a long-standing policy of not accepting a candidate's nomination to office by a minor party when the [Secretary's] office receives a conflicting nomination with the same minor party designation for a given office. Therefore, the [trial court's] granting [of the plaintiffs'] third prayer for relief will compel the [Secretary] to recognize nominations from the plaintiffs as the valid nominations from the Independent Party, invalidating conflicting ones by [the defendants] or otherwise. Second, without the third prayer for relief, the [Secretary]-by enforcing its long-standing policy-stands positioned to cause the plaintiffs irreparable harm. This harm has been caused in at least the last three . state election cycles." (Footnote omitted.) The relief granted to the defendants, namely, a declaration that they, rather than the plaintiffs, are the "rightful" officers of the Independent Party, with the 2010 bylaws controlling, and an order that the Secretary "recognize the above and to treat nominations and endorsements made pursuant to [the] 2010 bylaws as nominations and endorsements of the Independent Party of Connecticut," is simply a mirror image of that requested by the plaintiffs. Accordingly, because we consider the alleged constitutional errors to have be induced by the plaintiffs' own litigation tactics, we decline to review those claims. D Amendment of Pleadings The plaintiffs' final claim is that the trial court abused its discretion by granting the defendants' request to amend their answer to add special defenses and counterclaims after the close of evidence. In response, the defendants contend that the plaintiffs were not prejudiced by the amendment, insofar as they have not identified anything that they would have done differently had the amendment either not been permitted or made earlier, and observe that the plaintiffs did not seek a continuance to address any new factual issues. The defendants rely on Dow & Condon, Inc. v. Brookfield Development Corp. , 266 Conn. 572, 833 A.2d 908 (2003), and emphasize that the amended pleading did not change any of the factual issues in the case, and that any changes were purely questions of law that the plaintiffs could address in posttrial briefing. We agree with the defendants and conclude that the trial court did not abuse its discretion by allowing them to amend their answer. The record reveals the following additional relevant facts and procedural history. On October 10, 2017, on the eve of trial, the defendants sought permission to file an amended answer, including four special defenses and a counterclaim. The original answer did not include any special defenses or counterclaims. The proposed amended answer asserted the following special defenses: (1) the plaintiffs "lack standing to file and prosecute this action"; (2) the plaintiffs "have ratified the actions of the defendants in filing bylaws for the Independent Party of Connecticut in 2010 or have waived any right they might have had to challenge it"; (3) the "purported bylaws [of 1987 and 2006] violate rights of free of association [under] the first amendment [and] the Connecticut Constitution"; and (4) the 2006 bylaws were adopted without authority and therefore invalid. The defendants also filed a counterclaim seeking a declaratory judgment "that they are [the] rightful officers of the Independent Party of Connecticut [and] that the individual plaintiffs . are not ." The plaintiffs objected to the request, and the trial court considered argument on the proposed amendment on October 11, 2017, which was the first day of trial. The trial court held the defendants' motion in abeyance and, after the close of evidence, indicated that it would overrule the plaintiffs' objection and permit the amendment. "While our courts have been liberal in permitting amendments . this liberality has limitations. Amendments should be made seasonably. Factors to be considered in passing on a motion to amend are the length of the delay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment.... The motion to amend is addressed to the trial court's discretion which may be exercised to restrain the amendment of pleadings so far as necessary to prevent unreasonable delay of the trial.... Whether to allow an amendment is a matter left to the sound discretion of the trial court. This court will not disturb a trial court's ruling on a proposed amendment unless there has been a clear abuse of that discretion.... It is the [appellant's] burden to demonstrate that the trial court clearly abused its discretion.... If an amendment is allowed at trial and the opponent wants to raise an abuse of discretion issue on appeal, he should immediately move for a continuance in the trial in order to defend against the new issue.... Under certain circumstances, the trial court may allow an amendment to plead an additional special defense even after judgment has entered." (Citations omitted; internal quotation marks omitted.) Dow & Condon, Inc. v. Brookfield Development Corp. , supra, 266 Conn. at 583-84, 833 A.2d 908. In considering whether a trial court has abused its discretion "in granting or denying a request to amend a [pleading] during or after trial," we recognize that "the trial court has its unique vantage point in part because it is interpreting the . allegations not in a vacuum, but in the context of the development of the proceedings and the parties' understanding of the meaning of those allegations. Similarly, prior to trial, in light of discovery, pretrial motions or conferences, a trial court may have a different context for the allegations than what is evident to an appellate court." Dimmock v. Lawrence & Memorial Hospital, Inc. , 286 Conn. 789, 799 n.4, 945 A.2d 955 (2008). We conclude that the trial court did not abuse its discretion in allowing the late amendment to the defendants' answer because it did not prejudice the plaintiffs. In their reply brief, the plaintiffs posit only that they were injured by the late amendment because the trial court "ultimately found in favor of the defendants on one special defense [of waiver] and on their counterclaim. The injury is that the trial court could not have found waiver or found in favor of the defendants on their counterclaim if the court had not permitted the amendment." Beyond the obviously adverse result of losing, however, the plaintiffs do not indicate that the trial court's decision to permit the amendment adversely affected the process. Specifically, they do not argue that they would have litigated the case differently had the trial court not permitted the amendment, or that they were deprived of any additional time necessary to respond to the amendment. Indeed, the trial court specifically afforded the plaintiffs fourteen days to file any necessary responsive pleading, in addition to posttrial briefing. See Dow & Condon, Inc. v. Brookfield Development Corp. , supra, 266 Conn. at 584, 833 A.2d 908 (The court noted that no prejudice resulted from allowing the inclusion of a special defense claiming a violation of state regulations because the plaintiff did not seek a continuance, and "the new affirmative defense did not inject any new factual issues into the case, but instead raised a purely legal issue. The plaintiff had the opportunity to address that issue fully in its posttrial brief to the court, which was filed nearly one month after trial. Finally . the trial court would have been obligated to consider the effect of the regulation on the enforceability of the cobrokerage agreement even if it had not been raised as a special defense."); Burton v. Stamford , 115 Conn. App. 47, 61-62, 971 A.2d 739 (declining to find that trial court abused its discretion by permitting late amendment of complaint when key factual issues remained same despite new theory of liability that would have required changes to jury instructions), cert. denied, 293 Conn. 912, 978 A.2d 1108 (2009). Nor do the plaintiffs indicate that the late "amendment . confuse[d] the issues in the case ." Travelers Casualty & Surety Co. of America v. Netherlands Ins. Co. , 312 Conn. 714, 759, 95 A.3d 1031 (2014) ; cf. LaFrance v. Lodmell , 322 Conn. 828, 847-48, 144 A.3d 373 (2016) (it was not abuse of discretion to deny defendant permission to amend cross complaint and related defenses at "late stage" when amendment "would have raised many complex issues, which would have required motions and discovery" that "would have significantly delayed the trial and prejudiced the plaintiff"). This suggests, then, that the late amendment to the answer did not prejudice the plaintiffs. Accordingly, we conclude that the trial court did not abuse its discretion by permitting the late amendment to the defendants' answer. The judgment is affirmed. In this opinion the other justices concurred. Duff is the chairman of the Independent Party of CT-State Central, LaFrance is its treasurer, and Palanzo is its secretary and deputy treasurer. Although the previous chairman, John L. Dietter, was originally a plaintiff in the present action, he died in November, 2016. LaFrance and Palanzo later appointed Duff to the position of chairman, and, shortly thereafter, the trial court granted a motion substituting Duff as a plaintiff. We note that, notwithstanding this substitution, the plaintiffs' appeal form in the present case continues to identify Dietter as chairman. The record reflects that this is nothing more than a scrivener's error. Cf. State v. Zillo , 124 Conn. App. 690, 691 n.1, 5 A.3d 996 (2010). 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. See also footnote 1 of this opinion. We then ordered, sua sponte, that this appeal "be considered on an expedited basis," and set a briefing and argument schedule accordingly. For the sake of simplicity, we hereinafter refer to Merrill as the Secretary and to Telesca and Frank, collectively, as the defendants. General Statutes § 51-183b provides: "Any judge of the Superior Court and any judge trial referee who has the power to render judgment, who has commenced the trial of any civil cause, shall have power to continue such trial and shall render judgment not later than one hundred and twenty days from the completion date of the trial of such civil cause. The parties may waive the provisions of this section." General Statutes § 9-374 provides in relevant part: "In the case of a minor party, no authority of the state or any subdivision thereof having jurisdiction over the conduct of any election shall permit the name of a candidate of such party for any office to be printed on the official ballot unless at least one copy of the party rules regulating the manner of nominating a candidate for such office has been filed in the office of the Secretary of the State at least sixty days before the nomination of such candidate. In the case of a minor party, the selection of town committee members and delegates to conventions shall not be valid unless at least one copy of the party rules regulating the manner of making such selection has been filed in the office of the Secretary of the State at least sixty days before such selection is made. A copy of local party rules shall forthwith be also filed with the town clerk of the municipality to which they relate. Party rules shall not be effective until sixty days after the filing of the same with the Secretary of the State.... The term 'party rules' as used in this section includes any amendment to such party rules. When any amendment is to be filed as required by this section, complete party rules incorporating such amendment shall be filed, together with a separate copy of such amendment." In addition to the principal issues, the plaintiffs also claim that the trial court improperly (1) determined that it was not bound by an earlier decision of the Superior Court in Independent Party of Connecticut v. Dietter , Superior Court, judicial district of Waterbury, Docket No. CV-12-5016387-S, 2012 WL 4902807 (September 28, 2012), (2) found that they had waived their right to challenge the 2010 bylaws, (3) issued an order that violated the parties' constitutional rights, and (4) allowed the defendants to amend their answer to assert a counterclaim and special defenses. We conclude that these additional claims lack merit. See part III of this opinion. As the trial court noted, a form ED-601 "is required to be filed with the [Secretary] to reserve a party designation in any race where a candidate must petition to get on the ballot. See General Statutes § 9-353b and 9-453u. A reservation of party designation may only be filed for a race in which another similarly named party has not already filed such a form." General Statutes § 9-372(6) provides: " 'Minor party' means a political party or organization which is not a major party and whose candidate for the office in question received at the last-preceding regular election for such office, under the designation of that political party or organization, at least one per cent of the whole number of votes cast for all candidates for such office at such election ." See Price v. Independent Party of CT-State Central , 323 Conn. 529, 543, 147 A.3d 1032 (2016) (single justice proceeding before Palmer, J. , dismissing Waterbury faction's motion for permeant injunction, in connection with Independent Party nomination for United States Senate, for lack of jurisdiction because "officials administering minor party caucuses are not 'election official[s]' for purposes of [General Statutes] § 9-323"); Independent Party of CT-State Central v. Telesca , Superior Court, judicial district of Danbury, Docket No. CV-14-6015650-S (August 4, 2014) (stipulation between parties regarding conflicting candidate endorsements for 2014 election); Independent Party of Connecticut v. Dietter , Superior Court, judicial district of Waterbury, Docket No. CV-12-5016387-S, 2012 WL 4902807 (September 28, 2012) (withdrawn by Waterbury faction after denial of motion for temporary order of mandamus). We note that none of the parties challenges the court's subject matter jurisdiction over this case under the political question doctrine, and, having considered the issue sua sponte; see, e.g., Soracco v. Williams Scotsman, Inc. , 292 Conn. 86, 91, 971 A.2d 1 (2009) ; we agree with the trial court's conclusion that, although this case is an intraparty dispute, its resolution "required [the court] to interpret § 9-374 and related provisions to determine which bylaws govern the Independent Party's nomination procedures for candidates for public office, which is the central dispute between the parties.... [S]uch issues of statutory interpretation are regularly entertained by the [court] and are well within its jurisdiction." See Nielsen v. Kezer , 232 Conn. 65, 76, 652 A.2d 1013 (1995) (The court concluded that the political question doctrine did not preclude judicial resolution of an intraparty dispute because "the plaintiffs' claims present no special obstacles to judicial ascertainment and application of appropriate standards for resolving them, and adjudication of the claims does not require judicial policy-making properly left to another branch of government. On the contrary, the controversy raises issues of constitutional and statutory interpretation of the kind regularly entertained by courts."); see also id., at 77 n.19, 652 A.2d 1013 ("We recognize, of course, that the issues raised by the plaintiffs' action relate to activities that are at the heart of our political process. Nonetheless, the mere fact that the suit seeks protection of a political right does not mean it presents a political question.... The doctrine of which we treat is one of political questions, not one of political cases." [Citation omitted; internal quotation marks omitted.] ). The court also observed that "there is no evidence that any other local party adhered to the 2006 bylaws or that the [Danbury faction] actually sought to impose the will of its three member state central committee beyond [Danbury]. Although the [Danbury faction] may have won the race to the [Secretary's] office and referred to themselves by a name which included the designation 'State Central,' that is not enough to anoint them as the governing body of the Independent Party post-2008." The court observed that the "designation 'State Central' has no real significance in the organization or operation of a minor party. It is simply a name chosen by the [Danbury faction] and carries with it no special status. For reasons previously stated in the findings of fact, there is no indication that [the Danbury faction] has statewide reach although they continue to claim that they are the true governing entity of the statewide Independent Party." The trial court also rejected the plaintiffs' argument that the 2010 bylaws afford the Independent Party statewide status only for particular offices, emphasizing that "nothing in § 9-374 or any other statute concerning minor parties states that bylaws must be repeatedly filed every time a minor party candidate achieves 1 percent of the vote for any office, unless those bylaws are amended." We note that significant motions practice continued before the trial court subsequent to the commencement of appellate proceedings, as numerous candidates for the state House of Representatives sought to intervene in the present case and otherwise protect their rights with respect to the judgment of the trial court as it affected the Independent Party's endorsements for the 2018 election, ultimately leading them to file a writ of error under Docket Number SC 20160. A detailed discussion of those additional facts and procedural history is set forth in a separate opinion of this court pertaining to that writ of error, which is also released today. See Independent Party of CT-State Central v. Merrill , 330 Conn. 729, 201 A.3d 392 (2019). We recognize that the legislature "clear[ly]" intended § 51-183b"to place the onus on judges to decide cases in a timely fashion.... [A]s a practical matter, there is nothing that counsel can do to require the trial judge to comply with [§ 51-183b ].... Thus, the statute . attempts to balance judicial expediency with fairness to the parties and to reduce delays over which counsel have little, if any, control.... The salutary effect of [§ 51-183b ] is to compel diligence and a prompt decision on the part of the judge who tried the case, and to avoid manifest disadvantages attendant on long delay in rendering judgment." (Citations omitted; footnote omitted; internal quotation marks omitted.) Foote v. Commissioner of Correction , supra, 125 Conn. App. at 304-305, 8 A.3d 524 ; see also Connecticut Light & Power Co. v. Costle , 179 Conn. 415, 420, 426 A.2d 1324 (1980) ; Gordon v. Feldman , 164 Conn. 554, 556-57, 325 A.2d 247 (1973). We also acknowledge that compliance with the 120 day mandate of § 51-183b while rendering a comprehensive decision is sometimes difficult, especially in relatively complex cases, given the scheduling demands placed on our trial judges, who are often left to their own devices without the aid of legal research assistance. Given the lack of a clearly articulated claim in the present appeal that the trial court abused its discretion by ordering supplemental briefing and argument on the jurisdictional question subsequent to the plaintiffs' refusal to extend the deadline, we leave to another day the question of whether a trial court could ever abuse its discretion by requesting supplemental briefs or argument on any relevant question shortly before the expiration of the 120 day period. General Statutes § 9-453u provides: "(a) An application to reserve a party designation with the Secretary of the State and to form a party designation committee may be made at any time after November 3, 1981, by filing in the office of the secretary a written statement signed by at least twenty-five electors who desire to be members of such committee. "(b) The statement shall include the offices for which candidates may petition for nomination under the party designation to be reserved but shall not include an office if no elector who has signed the application is entitled to vote at an election for such office. "(c) The statement shall include the party designation to be reserved which (1) shall consist of not more than three words and not more than twenty-five letters; (2) shall not incorporate the name of any major party; (3) shall not incorporate the name of any minor party which is entitled to nominate candidates for any office which will appear on the same ballot with any office included in the statement; (4) shall not be the same as any party designation for which a reservation with the secretary is currently in effect for any office included in the statement; and (5) shall not be the word 'none', or incorporate the words 'unaffiliated' or 'unenrolled' or any similarly antonymous form of the words 'affiliated' or 'enrolled'. "(d) The statement shall include the names of two persons who are authorized by the party designation committee to execute and file with the secretary statements of endorsement required by section 9-453o and certificates of nomination as required by section 9-460. "(e) The secretary shall examine the statement, and if it complies with the requirements of this section, the secretary shall reserve the party designation for the offices included in the statement and record such reservation in the office of the secretary. The reservation shall continue in effect from the date it is recorded until the day following any regular election at which no candidate appears on the appropriate ballot for that office under that party designation." The plaintiffs argue that this reading of the statutory scheme is unworkable because it means that a minor party must refile its rules with the Secretary each time that party's candidate receives 1 percent of the vote for a particular office, thereby affording it party status for that office for the next election. The defendants appear to disagree, insofar as they argue that the 1 percent of the vote received by Nader in 2008 rendered the Independent Party a statewide party, meaning that the 2010 bylaws filed with the Secretary are effective for other statewide offices, such as governor and United States senator. Although the trial court determined that such refiling was not necessary, we agree with the plaintiffs that their reading requiring refiling better accords with the plain language of the statute, insofar as it links minor party status to specific "office[s]." General Statutes § 9-374. We disagree, however, with the plaintiffs' conclusory claim in their reply brief that this reading would create "bedlam" in the Secretary's office. We have every confidence that the Secretary will be able to implement this reading on an administrative level, such as by the promulgation of new forms indicating the continued acceptance and utilization of previously filed party rules, each time a political party receives minor party status for a particular office. Judge Taylor further stated that, in "reviewing the language of . § 9-374 regarding the nomination of candidates by minor parties, the court sees no inconsistency between the plain meaning of the statute and the 2006 [bylaws], currently followed by the [Danbury faction]. Further, the [Waterbury faction] neither followed the amendment procedure of the 2006 [bylaws] nor an applicable statute in the adoption of the 2010 [bylaws]. Therefore, the [Waterbury faction] has not shown that it has a clear legal right to the placement by the [Secretary] of its nominees on the ballot line reserved for the Independent Party of Connecticut, in the face of different nominees from the [Danbury faction]." Independent Party of Connecticut v. Dietter , supra, Superior Court, Docket No. CV-12-5016387-S. This emphasis on finality is consistent with the public policies underlying the preclusion doctrines, which are "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." (Internal quotation marks omitted.) Cumberland Farms, Inc. v. Groton , 262 Conn. 45, 59, 808 A.2d 1107 (2002). Given the lengthy history of the litigation between the parties, the plaintiffs also rely by analogy upon the law of the case doctrine, and contend that these proceedings should be treated, in essence, as a unitary litigation such that Judge Taylor's decision was the law of the case with respect to the force and validity of the 2010 and 2006 bylaws. "The law of the case doctrine expresses the practice of judges generally to refuse to reopen what [already] has been decided . New pleadings intended to raise again a question of law which has been already presented on the record and determined adversely to the pleader are not to be favored.... [When] a matter has previously been ruled [on] interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance.... A judge should hesitate to change his own rulings in a case and should be even more reluctant to overrule those of another judge.... Nevertheless, if . [a judge] becomes convinced that the view of the law previously applied by his coordinate predecessor was clearly erroneous and would work a manifest injustice if followed, he may apply his own judgment." (Citations omitted; internal quotation marks omitted.) Total Recycling Services of Connecticut, Inc. v. Connecticut Oil Recycling Services, LLC , 308 Conn. 312, 322, 63 A.3d 896 (2013). Here again, the preliminary nature of the proceedings before Judge Taylor in 2012 defeats the plaintiffs' reliance on the law of the case doctrine. We agree with the United States Supreme Court that preliminary injunctions, which are akin to the temporary order of mandamus at issue here, are often issued with "haste" and are "customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits. A party thus is not required to prove his case in full at a [preliminary injunction] hearing . and the findings of fact and conclusions of law made by a court granting a preliminary injunction are not binding at trial on the merits ." (Citations omitted.) University of Texas v. Camenisch , supra, 451 U.S. at 395, 101 S.Ct. 1830. Accordingly, we decline to treat the preliminary decision by Judge Taylor-which was expressly preliminary and expedited-as the law of this case. Telesca testified that cooperation between him and Fand actually began in 2006, when they jointly signed a form ED-601 seeking a party designation for every single statewide race but did not receive enough votes to afford them minor party status for those offices in subsequent years. Telesca testified that his goal was "to unify the party, not just Danbury, but Waterbury, Watertown, Winsted, Milford, all the other regional parties that were around. And [he] tried to get everybody to come together to create a statewide party." Similarly, Mertens testified that they modeled their collaborative approach after that taken by the Green Party to combine local organizations into a statewide party under a single set of bylaws. Telesca testified that, with respect to the 2008 election, he believed that "[d]ifferent rules" governed "different areas of the state," and emphasized his belief that the 2006 bylaws "didn't apply to us" because they "were not my bylaws," and that he did not look to them as a "guide" for drafting the 2010 bylaws. Telesca also testified that he had voiced his objection to the 2006 bylaws, particularly the portion allowing nonmembers to vote in party proceedings, to Fand, Dietter, and LaFrance, and that he told "Fand in 2008 that we would never live under those bylaws. And if we got a party together, we had to create a new set of bylaws, and he agreed." On redirect examination, Telesca emphasized his belief that "there [weren't] any rules in 2010 until we created them" and that they were not in any way bound by the 2006 bylaws, even though they had previously been filed with the Secretary. We review unpreserved constitutional claims pursuant to Golding , under which "a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation . exists and . deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant's claim will fail." (Emphasis in original; internal quotation marks omitted.) State v. Holley , 327 Conn. 576, 590 n.8, 175 A.3d 514 (2018) ; see also In re Yasiel R. , 317 Conn. 773, 781, 120 A.3d 1188 (2015) (modifying Golding 's third prong). Counsel for the defendants explained to the trial court that he filed the amended answer and counterclaim late because he was not "involved in the case at the time when the complaint was filed," and became involved in the case shortly before trial because the defendants' previous attorney had been suspended from the practice of law. He argued that the proposed amended answer and counterclaim would not affect the development of the record at trial and emphasized that he did not intend for the "allegations of the complaint and the allegations of the answer to be materially different" or change the issues in the case, and that the new pleading was intended "to clean things up ."

12505695

Angel HUANG DO v. COMMISSIONER OF MOTOR VEHICLES

Do v. Comm'r of Motor Vehicles

2019-02-12

SC 19722

681

698

200 A.3d 681

200

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

2021-09-08T21:16:17.237805+00:00

Fastcase

Angel HUANG DO v. COMMISSIONER OF MOTOR VEHICLES

Angel HUANG DO v. COMMISSIONER OF MOTOR VEHICLES SC 19722 Supreme Court of Connecticut. Argued December 20, 2017 Officially released February 12, 2019 Drew S. Graham, assistant attorney general, with whom, on the brief, was George Jepsen, former attorney general, for the appellant (defendant). Chet L. Jackson, for the appellee (plaintiff). Palmer, McDonald, Robinson, Mullins, Kahn and Vertefeuille, Js. The listing of justices reflects their seniority status on this court as of date of oral argument.

9460

59263

PALMER, J. Under General Statutes § 14-227b(c), anytime someone is arrested for operating a motor vehicle while under the influence of drugs or intoxicating liquor and refuses to submit to or fails a blood, breath or urine test, the arresting officer must, among other things, prepare a report of the incident for the Department of Motor Vehicles (department), and, pursuant to § 14-227b-19 of the Regulations of Connecticut State Agencies, that report is admissible at a hearing to suspend an operator's license conducted in accordance with § 14-227b (g), as long as it conforms to the requirements of § 14-227b(c). The defendant, the Commissioner of Motor Vehicles (commissioner), suspended the operator's license of the plaintiff, Angel Huang Do, for ninety days following a hearing at which the hearing officer relied on such a report, which consisted of an A-44 form, a four page police investigation report, and the results of the plaintiff's breath analysis tests. The plaintiff appealed to the Superior Court from the decision of the commissioner, claiming, inter alia, that this report, which had been admitted into evidence by the hearing officer as a single exhibit, was unreliable, even though it complied with § 14-227b(c), due to certain inconsistencies and errors contained therein. The plaintiff asserted, therefore, that the hearing officer had abused his discretion by admitting the exhibit into evidence. The trial court rejected the plaintiff's claim but remanded the case to the hearing officer for an articulation of the type of vehicle the plaintiff was driving at the time of her arrest. The plaintiff appealed from the trial court's judgment to the Appellate Court which, in a two to one decision, reversed, concluding that the inconsistencies and errors in the exhibit rendered it so unreliable that its admission violated principles of fundamental fairness. See Do v. Commissioner of Motor Vehicles , 164 Conn. App. 616, 618-19, 138 A.3d 359 (2016). Because there was no other evidence in the record to support the hearing officer's findings, the Appellate Court sustained the plaintiff's appeal. Id., at 619, 138 A.3d 359. We granted the commissioner's petition for certification to appeal, limited to the issue of whether the Appellate Court properly determined that principles of fundamental fairness required the preclusion of the exhibit as unreliable even though it complied with § 14-227b(c). See Do v. Commissioner of Motor Vehicles , 322 Conn. 901, 138 A.3d 931 (2016). Because we agree with the commissioner that the hearing officer did not abuse his discretion in admitting and relying on the exhibit, we reverse the judgment of the Appellate Court. The record reveals the following facts and procedural history. On April 24, 2014, at approximately midnight, desk personnel notified State Trooper Troy M. Biggs that a 911 caller had described a white Mercedes-Benz driving erratically on Route 63 near Round Hill Road in the town of Bethany. Shortly thereafter, Biggs spotted the Mercedes-Benz traveling northbound on Route 63 and proceeded to follow it. After Biggs observed the vehicle swerving and crossing the center line, he activated his emergency lights and pulled the driver over. Biggs identified the plaintiff as the driver of the vehicle from her Connecticut motor vehicle operator's license. While questioning the plaintiff, Biggs detected a strong odor of alcohol on her breath and inside the car. The plaintiff also admitted to having consumed two alcoholic beverages prior to leaving her home. On the basis of this information, Biggs asked the plaintiff to exit the vehicle and to perform three standardized field sobriety tests, all of which the plaintiff failed. At 12:30 a.m., Biggs placed the plaintiff under arrest for operating a motor vehicle under the influence of intoxicating liquor or drugs and transported her to the Bethany state police barracks, where she was advised of her Miranda rights. She then agreed to submit to two breath analysis tests, the results of which indicated a blood alcohol content of 0.1184 and 0.1186 percent, respectively. The plaintiff subsequently was formally charged with operating a motor vehicle under the influence of intoxicating liquor or drugs in violation of General Statutes (Supp. 2014) § 14-227a (a). On April 26, 2014, in accordance with § 14-227b(c), Biggs transmitted a copy of the exhibit, which, as we previously indicated, consisted of an A-44 form, a four page police investigation report, and the results of the plaintiff's breath analysis tests, to the department. Each page of the exhibit was subscribed and sworn to electronically by Biggs under penalty of false statement. Biggs' supervising officer, Ryan M. Hennessey, administered an oath to Biggs and signed the exhibit as well. On May 14, 2014, the commissioner notified the plaintiff that her license was being suspended for a period of ninety days. See General Statutes § 14-227b(e)(1). The plaintiff availed herself of her right to contest the suspension at a hearing before an administrative hearing officer designated by the commissioner. Under § 14-227b(g), such hearings are strictly "limited to a determination of the following issues: (1) Did the police officer have probable cause to arrest the person for operating a motor vehicle while under the influence of intoxicating liquor or any drug or both; (2) was such person placed under arrest; (3) did such person . submit to [a] test or analysis, commenced within two hours of the time of operation, [which] . indicated that such person had an elevated blood alcohol content; and (4) was such person operating the motor vehicle." If the hearing officer finds affirmatively on all four issues, the hearing officer must uphold the commissioner's suspension of the person's license. See General Statutes § 14-227b(h). Prior to the hearing, the commissioner notified the plaintiff that the exhibit would be offered in evidence pursuant to § 14-227b(c). At the hearing, the plaintiff objected to the admission of the exhibit on the ground that it was unreliable due to the following internal discrepancies: (1) the A-44 form states that, at the time of her arrest, the plaintiff was driving a 2007 Audi A4 with Massachusetts license plates whereas the investigation report states that the plaintiff was driving a 2006 Mercedes-Benz S28 with Connecticut license plates; (2) after Biggs had subscribed and sworn to the information contained in the A-44 form, Biggs' supervising officer, Hennessey, altered the first page of that form by crossing out "04/23/2014" as the date of the incident and writing in "04/24/14"; (3) Hennessy also crossed out the name "Helt, David" as a person who witnessed the plaintiff's refusal to perform a breath analysis test; and (4) page two of the investigation report, in the prearrest screening section, states that the plaintiff informed Biggs that she was wearing contact lenses whereas the summary of the plaintiff's horizontal gaze nystagmus test results in the same report states that the plaintiff performed that test "with and without her glasses on." On the basis of these alleged discrepancies, the plaintiff argued that the exhibit did not meet the admissibility requirements of § 14-227b(c) because it could not be determined from the exhibit which vehicle the plaintiff was driving on the night of the incident and because the exhibit was not properly subscribed and sworn to because of the alterations made by Hennessey. In response, the department argued that the discrepancies identified by the plaintiff were mere scrivener's errors that went solely to the weight to be ascribed to the exhibit and not to its admissibility. The hearing officer agreed with the department and admitted the exhibit. The hearing officer advised the plaintiff, however, that he would take into account her arguments regarding the several errors and discrepancies in the exhibit in deciding whether the commissioner had satisfied each of the four requirements specified in § 14-227b(g) for suspending the plaintiff's operator's license. The plaintiff did not testify or otherwise present any evidence at the hearing. On May 30, 2014, the hearing officer issued the following findings: (1) "The police officer had probable cause to arrest the [plaintiff] for a violation specified in [§] 14-227b of the . General Statutes"; (2) "[t]he [plaintiff] was placed under arrest"; (3) "[t]he [plaintiff] submitted to the test or analysis and the results indicated a [blood alcohol content] of .08 [percent] or more"; and (4) "[the plaintiff] was operating the motor vehicle." Consistent with these findings, the commissioner ordered the suspension of the plaintiff's license for a period of ninety days. The plaintiff thereafter filed a petition for reconsideration in which she argued that the hearing officer could not properly have found affirmatively on the fourth issue-namely, that the plaintiff was operating the motor vehicle-because the exhibit indicated that the plaintiff was driving two different vehicles at the time of the incident. The plaintiff further argued that the A-44 form was inadmissible due to the alterations that Hennessey had made to it after Biggs had subscribed and sworn to the information contained therein. The commissioner denied the petition for reconsideration. Pursuant to General Statutes § 4-183, the plaintiff appealed from the commissioner's decision to the Superior Court, claiming that the hearing officer had abused his discretion in admitting the exhibit into evidence and that, even if the exhibit had been properly admitted, there was insufficient evidence to support the hearing officer's findings. The trial court rejected the plaintiff's claims, concluding that the exhibit was properly admitted because it complied with the requirements of § 14-227b(c) and, furthermore, that the contents of the exhibit supported the hearing officer's findings. Specifically, the trial court stated: "In this case, the A-44 [form] contains the April 26, 2014 electronic sworn signature under penalty of false statement of [Biggs] as the arresting officer. The signature box refers to the report itself and any attachments thereto. The attached investigation report contains the April 26, 2014 electronic sworn signature of [Biggs] as the investigator. These reports thus comply with the statute and provided sufficient reliability to justify their admission at the license suspension hearing in this case. See General Statutes § 14-227b(c) (the [c]ommissioner . may accept a police report under this subsection that is prepared and transmitted as an electronic record, including electronic signature or signatures). "That reliability is not negated by the plaintiff's claims of discrepancies in the date of arrest and the identity of the motor vehicle that the plaintiff drove. The plaintiff raised both these claims before the hearing officer, thus giving the hearing officer an opportunity to consider them and exercise his discretion concerning the admissibility of the report. "Under the applicable abuse of discretion standard, no abuse of discretion occurred here.... There is no dispute that the motor vehicle stop took place shortly after midnight on April 24, 2014. Page one of the A-44 [form] shows a typewritten but crossed out notation of the incident date as 04/23/2014. In handwriting, the date of 04/24/14 is added with initials that the commissioner concedes are those of . Hennessey, who . administered the oath but was not the sworn, arresting officer. The [exhibit], therefore, does contain this amount of unsworn information, which was improper. However, pages one and two of the A-44 [form] contain four references to the arrest and breath tests taking place in the early morning hours of 04/24/2014. The investigation report then makes six references to the incident and investigation taking place on April 24. Under these circumstances, the hearing officer could reasonably have concluded that the initial notation of 04/23/2014 was a scrivener's error due to fact that the arrest took place shortly after midnight and that this error did not negate the overall reliability of the [exhibit]. "The same is true of the discrepancy with regard to the motor vehicle in question. Page one of the A-44 [form] lists the motor vehicle as a 2007 Audi with a Massachusetts registration. In the Property section of the investigation report, however, the motor vehicle is identified as a white 2006 Mercedes-Benz with Connecticut registration 344-ZBO. [Likewise] [t]he narrative [portion] of the [investigation] report states: A 911 caller described the vehicle as a white Mercedes-Benz bearing CT registration 344-ZBO. I observed this vehicle traveling northbound . I activated my overhead emergency strobe lights, sirens and wig-wag headlights. The vehicle pulled over . I never lost sight of the vehicle from my initial observation to the stop. Although the [exhibit] thus contain[s] conflicting evidence concerning the motor vehicle that the plaintiff operated, that conflict does not negate the overall reliability of the [exhibit], which otherwise meets the statutory and regulatory criteria. Rather, the conflict simply creates a fact or credibility issue for the hearing officer to resolve." (Citations omitted; internal quotation marks omitted.) Because the trial court also concluded, however, that the exhibit was ambiguous as to which vehicle the plaintiff was driving on the morning in question, the court remanded the case to the hearing officer for an articulation concerning that factual issue. The plaintiff appealed to the Appellate Court, claiming, inter alia, that the trial court incorrectly had determined that the hearing officer did not abuse his discretion in admitting the exhibit into evidence. Do v. Commissioner of Motor Vehicles , supra, 164 Conn. App. at 618, 138 A.3d 359. In support of this contention, the plaintiff argued, as she had before the trial court, that the discrepancies and errors contained in the exhibit rendered it unreliable and, therefore, inadmissible despite its compliance with § 14-227b(c). See id., at 623, 138 A.3d 359. The plaintiff also argued, for the first time, that the exhibit likely contained information copied and pasted from the arrest report of another person. See id. The Appellate Court, with one judge dissenting, agreed with the plaintiff and sustained her appeal. See id., at 634, 138 A.3d 359 ; see also id., at 635, 138 A.3d 359 (Bear , J. , dissenting). In reaching its determination, the Appellate Court acknowledged that, under § 14-227b-19(a) of the Regulations of Connecticut State Agencies, a police report that conforms to the requirements of § 14-227b (c) is deemed admissible at a license suspension hearing. Id., at 624, 138 A.3d 359. The Appellate Court reasoned, however, that neither it nor this court "has ever held that technical compliance with [ § 14-227b ] (c) must always result in the admission of an A-44 form. Although an A-44 form may technically comply with subsection (c), the information contained in the four corners of the document may still lead the hearing officer to conclude that the document is otherwise unreliable." Id., at 626, 138 A.3d 359. "Because the reliability of the A-44 form is of the utmost importance, there may be instances in which an A-44 form contains so many significant internal discrepancies and errors that it is rendered unreliable, at least in the absence of testimony by the arresting officer or other evidence that supports its reliability." Id., at 627, 138 A.3d 359. In the Appellate Court's view, Biggs' report was one such instance. Specifically, the court stated: "Portions of the exhibit in all likelihood pertain to the arrest of another individual, calling into question which portions of the exhibit actually pertain to the plaintiff. Furthermore, portions of the exhibit have been altered and initialed by an unknown person [namely, RH], and it is unclear whether this person had [personal] knowledge of the incident and swore under oath to the accuracy of the alterations. Additionally, there is no evidence as to when these alterations occurred." Id., at 629-30, 138 A.3d 359. "The extent of the errors and discrepancies far surpasses mere scrivener's errors. The exhibit does not merely state that the plaintiff operated two different vehicles-an Audi and a Mercedes-Benz-but it also lists different vehicle models, years, and state registrations. The statements that the plaintiff wore contact lenses and that the plaintiff participated in field sobriety tests with and without her glasses also cannot be dismissed as mere scrivener's errors. Additionally, the notation that 'Helt, David' witnessed the plaintiff's refusal to submit to chemical alcohol testing is not a scrivener's error because the department admits that the plaintiff consented to the Breathalyzer test. Although the incident date on the A-44 form may be a scrivener's error, the alteration by an unknown person undermines its reliability." Id., at 630, 138 A.3d 359. Judge Bear dissented from the majority opinion. In particular, he disagreed that the internal discrepancies identified by the plaintiff rendered the entire exhibit unreliable. See id., at 637, 138 A.3d 359 (Bear , J. , dissenting). In his view, the significant number of factual commonalities between the A-44 form and the attached investigation report, combined with the large and undisputed portion of the exhibit that clearly described the plaintiff and her actions on the night in question, rendered the exhibit sufficiently reliable for use at the hearing. See id., at 637, 642-44, 138 A.3d 359 (Bear , J. , dissenting). In reaching his determination, Judge Bear noted, among other things, "that both [the A-44 form and the investigation report] give the same or fundamentally similar information for the following items: the police case number; the location and time of the traffic stop; the race, sex, birthday, and address of the plaintiff; that the plaintiff failed the same three field sobriety tests in virtually the same manner; that the plaintiff indicated that she had no physical injuries; and that [the plaintiff] was apprised of her Miranda rights at 12:43 a.m." (Footnotes omitted.) Id., at 642-43, 138 A.3d 359 (Bear , J. , dissenting). Judge Bear noted that both documents also indicate that "the plaintiff [does not have] diabetes [and was not] on medication; the number and type of drinks that the plaintiff consumed [prior to her arrest]; the [fact] that the plaintiff was afforded the opportunity to contact an attorney [at 12:44 a.m.]; and the date, time, and results of [her] breath analysis tests." (Footnote omitted.) Id., at 644, 138 A.3d 359 (Bear , J. , dissenting). Judge Bear disagreed with the trial court, however, that the case must be remanded to the hearing officer for an articulation of the type of vehicle the plaintiff was driving when she was stopped by Biggs. See id., at 645, 138 A.3d 359 (Bear , J. , dissenting). According to Judge Bear, it was apparent from Biggs' investigation report "that the plaintiff was operating the 2006 Mercedes-Benz at the time of her arrest . and that the sole reference to the 2007 Audi [on the A-44 form] is in the nature of a scrivener's, typographical, or word processing error." Id. Judge Bear also noted that the plaintiff did not testify or make any claim to the hearing officer that the information contained in the investigation report was inaccurate, which, Judge Bear asserted, underscored the overall reliability of that report and the reasonableness of the hearing officer's reliance on it. See id., 646, 138 A.3d 359 (Bear , J. , dissenting). On appeal, the commissioner urges us to conclude, consistent with the determinations of the trial court and Judge Bear, that the hearing officer did not abuse his discretion or otherwise act unreasonably, arbitrarily, or illegally by admitting the exhibit and then relying on it in determining whether the department had satisfied the requirements of § 14-227b(g). The plaintiff, in turn, argues that the Appellate Court correctly determined that the errors contained in the exhibit rendered it so unreliable as to be inadmissible. We agree with the commissioner. We begin our analysis by setting forth the relevant standards of review and legal principles that guide our analysis. "[J]udicial review of the commissioner's action is governed by the Uniform Administrative Procedure Act . General Statutes § 4-166 through 4-189... and the scope of that review is very restricted.... [R]eview of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable." (Citation omitted; internal quotation marks omitted.) Murphy v. Commissioner of Motor Vehicles , 254 Conn. 333, 343, 757 A.2d 561 (2000). "Substantial evidence exists if the administrative record affords a substantial basis of fact from which the fact in issue can be reasonably inferred." (Intenal quotation marks omitted.) Schallenkamp v. DelPonte , 229 Conn. 31, 40, 639 A.2d 1018 (1994). "The substantial evidence rule imposes an important limitation on the power of the courts to overturn a decision of an administrative agency . and . provide[s] a more restrictive standard of review than standards embodying review of weight of the evidence or clearly erroneous action.... The United States Supreme Court, in defining substantial evidence in the directed verdict formulation, has said that it is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." (Internal quotation marks omitted.) Cadlerock Properties Joint Venture, L.P. v. Commissioner of Environmental Protection , 253 Conn. 661, 676-77, 757 A.2d 1 (2000), cert. denied, 531 U.S. 1148, 121 S.Ct. 1089, 148 L.Ed.2d 963 (2001). We previously have stated that "administrative tribunals are not strictly bound by the rules of evidence and . may consider exhibits [that] would normally be incompetent in a judicial proceeding, [as] long as the evidence is reliable and probative." Lawrence v. Kozlowski , 171 Conn. 705, 710, 372 A.2d 110 (1976), cert. denied, 431 U.S. 969, 97 S.Ct. 2930, 53 L.Ed.2d 1066 (1977). It is axiomatic, moreover, that it is within the province of the administrative hearing officer to determine whether evidence is reliable; see Murphy v. Commissioner of Motor Vehicles , supra, 254 Conn. at 346, 757 A.2d 561 ; and, on appeal, the plaintiff bears the burden of proving "that the commissioner, on the facts before him, acted contrary to law and in abuse of his discretion ." Demma v. Commissioner of Motor Vehicles , 165 Conn. 15, 16-17, 327 A.2d 569 (1973). "Neither this court nor the [Appellate Court] may retry the case or substitute its own judgment for that of the [hearing officer with respect to] the weight of the evidence or questions of fact.... Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion." (Internal quotation marks omitted.) Murphy v. Commissioner of Motor Vehicles , supra, at 343, 757 A.2d 561. Applying these principles to the present case, we agree with the commissioner that the plaintiff has failed to demonstrate that the hearing officer abused his discretion by admitting the exhibit into evidence and relying on it to support his findings under § 14-227b(g). As the Appellate Court acknowledged, § 14-227b-19(a) of the Regulations of Connecticut State Agencies, which has "the force and effect of a statute"; Gianetti v. Norwalk Hospital , 211 Conn. 51, 60, 557 A.2d 1249 (1989) ; provides in clear and straightforward terms that a police officer's report concerning the arrest of a drunk driving suspect "shall be admissible into evidence at [a license suspension] hearing if it conforms to the requirements of subsection (c) of [§] 14-227b of the . General Statutes." (Emphasis added.) Subsection (c) of § 14-227b itself provides that the report, to be admissible, must be submitted to the department within three business days, be subscribed and sworn to by the arresting officer under penalty of false statement, set forth the grounds for the officer's belief that there was probable cause to arrest the driver, and state whether the driver refused to submit to or failed a blood, breath or urine test. We previously have stated that the admissibility requirements set forth in § 14-227b(c)"provide sufficient indicia of reliability so that the [police] report can be introduced in evidence as an exception to the hearsay rule, especially in license suspension proceedings, without the necessity of producing the arresting officer." Volck v. Muzio , 204 Conn. 507, 518, 529 A.2d 177 (1987). It is undisputed that the exhibit in the present case meets these requirements: it was submitted to the department within three business days; it was subscribed and sworn to by the arresting officer; it set forth the grounds for the officer's belief that there was probable cause to arrest the plaintiff; and it stated whether the plaintiff submitted to a blood test. Neither this court nor the Appellate Court has ever recognized any basis for excluding a police report from evidence at a license suspension hearing other than the failure to comply with § 14-227b(c). Indeed, we consistently have rejected claims that a report should be excluded for any other reason. See, e.g., Schallenkamp v. DelPonte , supra, 229 Conn. at 43, 639 A.2d 1018 (fact that officer was not certified to administer breath analysis test was inconsequential because certification is not required under § 14-227b ); Volck v. Muzio , supra, 204 Conn. at 512, 518, 529 A.2d 177 (arresting officer's failure to comply with statutory dictates of § 14-227b [b] provided insufficient ground for overturning commissioner's suspension of operator's license, but absence of endorsement of third person to plaintiff's refusal to submit to breath analysis test as required by § 14-227b [c] would be ground for exclusion of police report); Roy v. Commissioner of Motor Vehicles , 67 Conn. App. 394, 398, 786 A.2d 1279 (2001) (arresting officer's failure to check box in A-44 form indicating that plaintiff was operating vehicle on public road did not render police report inadmissible because "[t]he report to be completed by police officers in accordance with § 14-227b [c] does not require the police to check a box setting forth that the person arrested was operating on a public road"); Bialowas v. Commissioner of Motor Vehicles , 44 Conn. App. 702, 711-12, 692 A.2d 834 (1997) (" 'multiple' " violations of § 14-227b were not grounds for excluding police report from evidence). We have rejected such claims because, as we explained in Fishbein v. Kozlowski , 252 Conn. 38, 743 A.2d 1110 (1999), "the restriction of a license suspension hearing to the four issues specified in [what is now § 14-227b(g) ] is indicative of the legislative view that the failure to comply precisely with the . requirements of [ § 14-227b(b) ] should not prevent suspension of the license of a person, arrested with probable cause for believing he was operating under the influence or with impaired ability as a result of intoxicating liquor, who has refused to submit to [or has failed] the prescribed [blood alcohol] tests . While the legislature has attached certain consequences to departures from the procedures specified in § 14-227b(b) and has provided a substantial incentive for the police to comply with those procedures in the context of criminal proceedings . the legislature has manifested its intention that noncompliance with subsection (b), not involving one of the four issues to be determined pursuant to subsection [what is now § 14-227b(g) ], does not preclude the suspension of the license of a driver when the four enumerated elements have been demonstrated." (Citations omitted; internal quotation marks omitted.) Id., at 47-48, 743 A.2d 1110 ; see also Volck v. Muzio , supra, 204 Conn. at 512, 518, 529 A.2d 177 (because hearing is limited to four enumerated issues, multiple failures by arresting officer to comply with statutory dictates of § 14-227b did not constitute grounds for overturning commissioner's decision to suspend operator's license); Fitzgerald v. Commissioner of Motor Vehicles , 142 Conn. App. 361, 364-65, 65 A.3d 533 (2013) ("the failure of the police to comply with subsection [b] of § 14-227b, which provides the right to telephone an attorney before being subjected to a chemical test, is irrelevant in a license suspension hearing because the hearing specifically, by legislation, is limited to the four issues specified in § 14-227b [g]" [footnote omitted] ); Dalmaso v. Dept. of Motor Vehicles , 47 Conn. App. 839, 844, 707 A.2d 1275 ("[w]ithout legislative action to enlarge the scope of a license suspension hearing beyond the four issues specified in subsection [g], we have no reason to modify the well established view that noncompliance with subsection [b] is irrelevant in such a proceeding"), appeal dismissed, 247 Conn. 273, 720 A.2d 885 (1998). The present case is no exception. Contrary to the determination of the Appellate Court, therefore, the fact that Biggs may have sworn to the accuracy of conflicting information concerning the type of vehicle the plaintiff was driving, the date of the incident, or whether the plaintiff was wearing contact lenses when she performed the horizontal gaze nystagmus test goes to the weight to be accorded the exhibit by the hearing officer, not to its admissibility. See, e.g., Schallenkamp v. DelPonte , supra, 229 Conn. at 41, 639 A.2d 1018 (determination regarding reliability of evidence is strictly within province of administrative hearing officer, and "the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence" [internal quotation marks omitted] ); Lawrence v. Kozlowski , supra, 171 Conn. at 708, 372 A.2d 110 ("The [hearing officer's] function is that of an administrative agency, although he acts in a quasi-judicial capacity. To render a decision, he must weigh evidence and reach conclusions." [Internal quotation marks omitted.] ). Thus, the hearing officer properly considered the exhibit in its entirety, despite any errors or inconsistencies. Moreover, we see no persuasive reason why the hearing officer was precluded from relying on the exhibit even though it contained several mistakes and discrepancies. Indeed, as Judge Bear observed; see Do v. Commissioner of Motor Vehicles , supra, 164 Conn. App. at 641, 138 A.3d 359 (Bear , J. , dissenting); the four page investigation report alone provides support for the hearing officer's findings that (1) the police had probable cause to arrest the plaintiff, (2) the plaintiff was in fact arrested, (3) the plaintiff submitted to a breath analysis test, which indicated an elevated blood alcohol content, and (4) the plaintiff was the person operating the vehicle. The investigation report states in relevant part: "On 04-24-14 at approximately 0018 [hours], I was informed . that there was a vehicle operating erratically traveling northbound on Route 63 in the area of Round Hill Road in Bethany. A 911 caller described the vehicle as a white Mercedes Benz bearing [Connecticut] registration 344-ZBO. I observed this vehicle traveling northbound, failing to maintain its proper lane, at the intersection of Route 63 and Munson, swerving over the solid double yellow line onto the southbound side of the roadway. I activated my overhead emergency strobe lights, sirens and wig-wag headlights. The vehicle pulled over onto the shoulder at the intersection of Route 63 and Litchfield Turnpike in Bethany. I never lost sight of the vehicle from my initial observation to the stop. [Another] [t]rooper . arrived on [the] scene to assist [me].... "Upon approaching the vehicle . I observed [an] Asian female seated in the operator's position with the vehicle engine at an idle. The operator, later identified by her [Connecticut] operator's license . as [the plaintiff] . was asked for her license, registration and proof of insurance.... I then asked the [plaintiff] where she was coming from to which she stated, 'Milford.' I asked the [plaintiff] where in Milford . she [was] coming from to which she stated '[m]y house.' I asked the [plaintiff] where she was going to which she [responded] that she was on her way to her boyfriend's house in Bethany. I then asked the [plaintiff] if she had consumed any alcoholic beverages to which she stated '[y]es.' She went on to explain that she had [consumed] a [v]odka and [t]onic and a glass of [s]angria. It should be noted that I detected a strong odor of an alcoholic beverage emanating from the [plaintiff's] breath as well as the driver's side compartment of the vehicle. I observed that the [plaintiff's] eyes were bloodshot and [glassy]. The [plaintiff] appeared to have difficulty locating [her] . [v]ehicle registration and [i]nsurance [identification] card . "Based [on] the above stated facts and circumstances [the plaintiff] was asked to exit and step to the rear of her vehicle and asked to perform [s]tandardized [f]ield [s]obriety [t]ests. [The plaintiff] was then asked if she had any physical injuries and/or disabilities that would prevent her from performing the tests, to which she replied, '[n]o.' [The plaintiff then] stated she was wearing contact lenses ." The investigation report then details the plaintiff's substandard performance on the three field sobriety tests. It also describes her arrest and subsequent transport to the state police barracks, where she was administered her Miranda warnings and read the requisite implied consent advisory. The investigation report further provides that the plaintiff was allowed to call an attorney and that, after speaking with him, she submitted to two breath analysis tests, which indicated a blood alcohol content of 0.1184 and 0.1186, respectively. The investigation report also notes that "a [video] cassette tape of the [s]tandardized field [s]obriety [t]ests and the [plaintiff's] arrest was removed from the [video recorder] in [Biggs'] assigned vehicle and entered into evidence.... The video portion of the arrest [was] functioning throughout this investigation." Finally, the investigation report concludes by providing that the plaintiff was issued a summons to appear on May 8, 2014, at 9:30 a.m. in New Haven Superior Court, that she was released on a $500 nonsurety bond, that her operator's license was revoked in accordance with § 14-227b(c), and that she was picked up by a friend at 2 a.m. As Judge Bear also noted, the plaintiff did not dispute any of these facts at the administrative hearing; see Do v. Commissioner of Motor Vehicles , supra, 164 Conn. App. at 636, 646, 138 A.3d 359 (Bear , J. , dissenting); even though she had every opportunity to do so, and there is nothing in the record before this court to suggest that she disputes those facts now. As for the four discrepancies in the exhibit, we agree with the trial court and Judge Bear that the hearing officer reasonably could have concluded that they did not negate the overall reliability of the exhibit as a whole. See id., at 641, 138 A.3d 359 (Bear , J. , dissenting). Indeed, one of them-that the plaintiff performed the horizontal gaze nystagmus test with and without her glasses on even though she told Biggs prior to taking the test that she was wearing contact lenses-does not strike us as a discrepancy at all. The plaintiff could have told Biggs that she was wearing contacts but then removed them to perform the test, believing she would do better on the test without them. In light of her level of intoxication, the plaintiff also could have simply forgotten that she was not wearing her contact lenses when she told Biggs differently, which Biggs then noted in his report. The other three discrepancies on the A-44 form, an electronic document that contains a series of questions the arresting officer answers by filling in the blank next to the question, also do not warrant exclusion of the exhibit because none of them implicates the four findings prescribed by § 14-227b(g). See, e.g., Fishbein v. Kozlowski , supra, 252 Conn. at 46, 743 A.2d 1110 ("[w]e . have held repeatedly that the plain language of [what is now § 14-227b (g) ] expressly and narrowly limits the scope of the license suspension hearing to the four issues enumerated in the statute"); Volck v. Muzio , supra, 204 Conn. at 520, 529 A.2d 177 ("With respect to a license suspension hearing . whether an operator was warned of the consequences of refusing to submit to chemical tests is not made one of the issues to be adjudicated pursuant to [what is now § 14-227b(g) ]. Although one of the four issues to be determined is whether a driver has refused to submit to chemical testing, his knowledge of the consequences is not an essential factor in deciding whether such a refusal has occurred."); Buckley v. Muzio , 200 Conn. 1, 7, 509 A.2d 489 (1986) (sole issue was whether hearing officer properly applied what is now § 14-227b [g] to facts of case, and "[h]aving nothing more to determine, it was inappropriate for [the reviewing court] to indulge in a microscopic search for technical infirmities in the [commissioner's] action" [internal quotation marks omitted] ). It bears emphasis, moreover, as Judge Bear noted; see Do v. Commissioner of Motor Vehicles , supra, 164 Conn. App. at 642-44, 138 A.3d 359 (Bear , J. , dissenting); that the vast majority of the information contained in the A-44 form-roughly 90 percent of Biggs' responses-mirrors precisely the information contained in the investigation report. Indeed, two of the discrepancies are actually corrections. As we previously indicated, after administering the oath to Biggs, Hennessey crossed out "04/23/2014" as the date of the incident and wrote in "04/24/14." He also crossed out "Helt, David" as the name of a person who witnessed the plaintiff's refusal to submit to a breath analysis test. We agree with Judge Bear that the hearing officer reasonably could have concluded that the original notations of "04/23/2014" and "Helt, David" were errors that Hennessey detected and corrected prior to transmitting the report to the department. See Do v. Commissioner of Motor Vehicles , supra, at 644 and n.10, 138 A.3d 359 (Bear , J. , dissenting). Such a conclusion is warranted because it is undisputed that the plaintiff submitted to two breath analysis tests, the results of which were entered into evidence at the hearing. It is also undisputed that the incident occurred shortly after midnight on April 24, 2014, not on April 23, 2014. Indeed, as the trial court noted, the correct date of April 24, 2014, is mentioned ten different times in the exhibit-four times in the A-44 form and six times in the investigation report. As for the single reference to a 2007 Audi, we also agree with Judge Bear that the hearing officer reasonably could have concluded that the plaintiff was driving the white Mercedes-Benz based on the narrative set forth in the investigation report, which indicates that both Biggs and the 911 caller observed a white Mercedes-Benz driving erratically on Route 63 and that Biggs, upon approaching this vehicle, identified the plaintiff as the driver on the basis of her Connecticut operator's license. See id., at 645-46, 138 A.3d 359 (Bear , J. , dissenting). It does appear to us, however, as the Appellate Court itself surmised, that Biggs inadvertently transcribed information from another person's arrest report when completing the plaintiff's A-44 form and that, although Hennessey caught two of the mistakes resulting therefrom before the three submissions were transmitted to the department, one was not so identified. See id., at 622-23, 629-30, 138 A.3d 359. That would explain why "04/23/2014" and the name "Helt, David" are crossed out whereas the reference to the 2007 Audi is not. As the commissioner argues, however, § 14-227b(g) requires only a showing that the arresting officer had probable cause to arrest the plaintiff for operating a motor vehicle; it does not expressly require information regarding the type of vehicle that was being driven. As we previously stated, under § 14-227b(g)(4), the hearing officer must determine whether the plaintiff was operating "the motor vehicle." In this subdivision, "the motor vehicle" refers to the vehicle referenced in subdivision (1) of § 14-227b(g), which asks whether the police officer had probable cause to arrest the plaintiff for operating "a motor vehicle while under the influence of intoxicating liquor ." (Emphasis added.) As we explained, there is ample evidence in the record to support the hearing officer's finding that, on the night in question, the plaintiff was operating a motor vehicle while under the influence of intoxicating liquor. Indeed, the plaintiff has not challenged the hearing officer's finding that Biggs had probable cause to arrest her for that offense. An affirmative finding on the first statutory issue necessarily results in an affirmative finding on the fourth statutory issue. We note, moreover, our disagreement with the Appellate Court that, "because the plaintiff objected to the admission of the exhibit and casted significant doubt [on] its reliability, the burden was on the department to offer additional evidence to prove the reliability of the exhibit," and that "[p]lacing this burden on the department is consistent with [this] [c]ourt's holding in Carlson v. Kozlowski , 172 Conn. 263, 267-68, 374 A.2d 207 (1977), that although hearsay evidence is generally admissible in administrative hearings, hearsay evidence must be sufficiently reliable to be admissible." Do. v. Commissioner of Motor Vehicles , supra, 164 Conn. App. at 628, 138 A.3d 359. In Carlson , the commissioner suspended the operator's license of the plaintiff, Alan J. Carlson, after a hearing officer determined, on the basis of four eyewitness affidavits, that Carlson had caused a fatal accident. Carlson v. Kozlowski , supra, at 265, 374 A.2d 207. On appeal, Carlson claimed that the commissioner's decision was not supported by substantial evidence because the hearsay contained in the affidavits was unreliable. See id. As the Appellate Court explained in the present case, "[t]o determine whether hearsay evidence is sufficiently reliable in an administrative hearing, [this] court in Carlson adopted the test articulated in Richardson v. Perales , 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). In Richardson , the United States Supreme Court was asked to decide whether medical records were sufficiently reliable to be admissible in an administrative hearing without the testimony of the medical examiner. Id., at 402, 91 S.Ct. 1420. In holding that the medical records were reliable, the court looked to multiple factors, including whether there were inconsistencies on the face of the records, and whether the plaintiff had the ability to subpoena the author of the records. Id., at 403-406, 91 S.Ct. 1420." Do v. Commissioner of Motor Vehicles, supra, 164 Conn. App. at 628-29, 138 A.3d 359. The Appellate Court's reliance on Carlson is misplaced for two reasons. First, as we previously stated, this court has already determined, in accordance with the legislative directive contained in § 14-227b(c), that the admissibility requirements set forth in that provision "provide sufficient indicia of reliability so that the [police] report can be introduced in evidence as an exception to the hearsay rule, especially in license suspension proceedings, without the necessity of producing the arresting officer." Volck v. Muzio , supra, 204 Conn. at 518, 529 A.2d 177. Second, even if the Richardson factors were applicable, this court stated in Carlson that, "[i]f hearsay evidence is insufficiently trustworthy to be considered 'substantial evidence' and it is the only evidence probative of the plaintiff's culpability, its use to support the agency decision would be prejudicial to the plaintiff, absent a showing . that the appellant knew it would be used and failed to ask the commissioner to subpoena the declarants. " (Emphasis added.) Carlson v. Kozlowski , supra, 172 Conn. at 267, 374 A.2d 207. In the present case, it is undisputed that the plaintiff was informed prior to her hearing that the exhibit would be entered into evidence, but she failed to avail herself of her right to subpoena Biggs or any other witness to challenge the accuracy of the information contained in the exhibit. See Regs., Conn. State Agencies § 14-227b-18 (b) ("[a] person arrested for an enumerated offense may at such person's own expense and by such person's own solicitation summon to the [license suspension] hearing the arresting officer and any other witness to give oral testimony"). Although it is true, as the Appellate Court noted; see Do v. Commissioner of Motor Vehicles , supra, 164 Conn. App. at 626-27, 138 A.3d 359 ; that a witness' failure to respond to such a subpoena is not a ground for dismissal or a continuance of the hearing, there is nothing in the regulation to suggest that the hearing officer cannot, if warranted, consider the nonappearance of a subpoenaed witness in making his or her decision. We note, finally, that this court "[has] indicated repeatedly that a license suspension hearing is not a criminal proceeding and that the subject of such a hearing is not entitled to all of the procedural protections that would be available in a criminal proceeding." Fishbein v. Kozlowski , supra, 252 Conn. at 49, 743 A.2d 1110. "In State v. Hickam , 235 Conn. 614, 624, 668 A.2d 1321 (1995), cert. denied, 517 U.S. 1221, 116 S.Ct. 1851, 134 L.Ed.2d 951 (1996), we [explained] that . the legislative history of § 14-227b reveals that a principal purpose [of] the enactment of the statute was to protect the public by removing potentially dangerous drivers from the state's roadways with all dispatch compatible with due process. This court in Hickam distinguished license suspension proceedings, the primary purpose of which is to promote public safety by removing those who have demonstrated a reckless disregard for the safety of others from the state's roadways, from criminal proceedings, the primary purpose of which is punishment." (Footnote omitted; internal quotation marks omitted.) Fishbein v. Kozlowski , supra, at 48-49, 743 A.2d 1110. Even in the context of a criminal proceeding, however, in which procedural safeguards are at their zenith, this court has recognized that, as a general matter, "the constitution's safeguard against convictions based on unreliable or questionable evidence is not the exclusion of such evidence but an opportunity for the defense to persuade the jury that such evidence is untrustworthy." State v. Dickson , 322 Conn. 410, 478, 141 A.3d 810 (2016) (Zarella , J. , concurring in the judgment), cert. denied, - U.S. -, 137 S.Ct. 2263, 198 L.Ed.2d 713 (2017). As Judge Bear aptly noted, the plaintiff in the present case had the opportunity at the license suspension hearing to present evidence to demonstrate the unreliability of the information contained in the exhibit but failed to do so. See Do v. Commissioner of Motor Vehicles , supra, at 636, 646, 138 A.3d 359 (Bear , J. , dissenting). We conclude, therefore, that the hearing officer properly admitted and relied on the hearsay information, sworn to by Biggs, that was submitted to the hearing officer by the commissioner. Because that information constituted substantial evidence to support the hearing officer's findings, there is no need for a remand of the case to the hearing officer, whose decision to reject the plaintiff's claim must stand. The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to reverse the trial court's judgment insofar as that court remanded the case for further articulation and to order the trial court to deny the plaintiff's administrative appeal. In this opinion the other justices concurred. General Statutes § 14-227b(c) provides in relevant part: "If [a] person arrested [for operating a motor vehicle under the influence of intoxicating liquor or drugs] refuses to submit to [a blood, breath or urine] test or analysis or submits to such test or analysis, commenced within two hours of the time of operation, and the results of such test or analysis indicate that such person has an elevated blood alcohol content, the police officer, acting on behalf of the Commissioner of Motor Vehicles, shall immediately revoke and take possession of the motor vehicle operator's license or, if such person is a nonresident, suspend the nonresident operating privilege of such person, for a twenty-four-hour period. The police officer shall prepare a report of the incident and shall mail or otherwise transmit in accordance with this subsection the report and a copy of the results of any chemical test or analysis to the Department of Motor Vehicles within three business days. The report shall contain such information as prescribed by the Commissioner of Motor Vehicles and shall be subscribed and sworn to under penalty of false statement as provided in section 53a-157b by the arresting officer. If the person arrested refused to submit to such test or analysis, the report shall be endorsed by a third person who witnessed such refusal. The report shall set forth the grounds for the officer's belief that there was probable cause to arrest such person for a violation of section 14-227a . and shall state that such person had refused to submit to such test or analysis when requested by such police officer to do so or that such person submitted to such test or analysis, commenced within two hours of the time of operation, and the results of such test or analysis indicated that such person had an elevated blood alcohol content. The Commissioner of Motor Vehicles may accept a police report under this subsection that is prepared and transmitted as an electronic record, including electronic signature or signatures, subject to such security procedures as the commissioner may specify and in accordance with the provisions of sections 1-266 to 1-286, inclusive. In any hearing conducted pursuant to the provisions of subsection (g) of this section, it shall not be a ground for objection to the admissibility of a police report that it is an electronic record prepared by electronic means." Although § 14-227b has been the subject of amendments in 2016 and 2014; see Public Acts 2016, No. 16-126, § 17; Public Acts 2016, No. 16-55, § 6 and 7; Public Acts 2014, No. 14-228, § 6; those amendments have no bearing on the merits of the appeal. In the interest of simplicity, we refer to the current revision of § 14-227b throughout this opinion. Section 14-227b-19 of the Regulations of Connecticut State Agencies provides: "(a) The report filed or transmitted by the arresting officer shall be admissible into evidence at the hearing if it conforms to the requirements of subsection (c) of section 14-227b of the . General Statutes. "(b) The chemical test results in the form of the tapes from a breath analyzer or other chemical testing device submitted contemporaneously with the report shall be admissible into evidence at the hearing if they conform to the requirements of subsection (c) of section 14-227b of the . General Statutes. "(c) An electronic record that contains electronic signatures of persons required to sign in accordance with subsections (a), (b) and (c) of section 14-227b-10 of the Regulations of Connecticut State Agencies shall be admissible at a hearing to the same extent as a report containing written signatures, as provided in subsection (c) of section 14-227b of the . General Statutes." General Statutes § 14-227b(g) provides in relevant part: "If [a person whose license has been suspended pursuant to this section] contacts the department to schedule a hearing, the department shall assign a date, time and place for the hearing, which date shall be prior to the effective date of the suspension, except that, with respect to a person whose operator's license or nonresident operating privilege is suspended in accordance with subdivision (2) of subsection (e) of this section, such hearing shall be scheduled not later than thirty days after such person contacts the department. At the request of such person [or] the hearing officer . and upon a showing of good cause, the commissioner may grant one or more continuances. The hearing shall be limited to a determination of the following issues: (1) Did the police officer have probable cause to arrest the person for operating a motor vehicle while under the influence of intoxicating liquor or any drug or both; (2) was such person placed under arrest; (3) did such person refuse to submit to such test or analysis or did such person submit to such test or analysis, commenced within two hours of the time of operation, and the results of such test or analysis indicated that such person had an elevated blood alcohol content; and (4) was such person operating the motor vehicle. In the hearing, the results of the test or analysis shall be sufficient to indicate the ratio of alcohol in the blood of such person at the time of operation, provided such test was commenced within two hours of the time of operation. The fees of any witness summoned to appear at the hearing shall be the same as provided by the general statutes for witnesses in criminal cases. Notwithstanding the provisions of subsection (a) of section 52-143, any subpoena summoning a police officer as a witness shall be served not less than seventy-two hours prior to the designated time of the hearing." "The A-44 form is used by the police to report an arrest related to operating a motor vehicle under the influence and the results of any sobriety tests administered or the refusal to submit to such tests.... [S]ee General Statutes § 14-227b(c) (The [arresting] police officer shall prepare a report of the incident. . The report shall contain such information as prescribed by the Commissioner of Motor Vehicles .)." (Citation omitted; internal quotation marks omitted.) Do v. Commissioner of Motor Vehicles , 164 Conn. App. 616, 618 n.1, 138 A.3d 359 (2016). We refer to the three documents comprising the police report as the exhibit and refer to each document in the exhibit-the A-44 form, the investigation report, and the plaintiff's breath analysis tests-individually when discussing the specific information contained therein. As we explain more fully hereinafter, we also agree with the commissioner that, contrary to the determination of the trial court, there is no need for the case to be remanded to the hearing officer for an articulation because the hearing officer's findings were sufficient to support the commissioner's decision to suspend the plaintiff's license. During the horizontal gaze nystagmus test, the plaintiff exhibited in both eyes a "lack of smooth pursuit," "distinct jerkiness at maximum deviation," and an "onset of jerkiness prior to forty-five degrees ." During the walk and turn, the plaintiff "lost her balance, performed no heel to toe, raised her arms for balance, took the incorrect number of steps and turned incorrectly." During the one leg stand, the plaintiff lifted her arms for balance, swayed while trying to balance, and put her foot down. Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). General Statutes (Supp. 2014) § 14-227a (a) provides in relevant part: "No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if such person operates a motor vehicle (1) while under the influence of intoxicating liquor or any drug or both, or (2) while such person has an elevated blood alcohol content. For the purposes of this section, 'elevated blood alcohol content' means a ratio of alcohol in the blood of such person that is eight-hundredths of one per cent or more of alcohol, by weight ." General Statutes § 14-227b(e)(1) provides: "Except as provided in subdivision (2) of this subsection, upon receipt of [a] report [that conforms to subsection (c) of this section], the Commissioner of Motor Vehicles may suspend any operator's license or nonresident operating privilege of such person effective as of a date certain, which date shall be not later than thirty days after the date such person received notice of such person's arrest by the police officer. Any person whose operator's license or nonresident operating privilege has been suspended in accordance with this subdivision shall automatically be entitled to a hearing before the commissioner to be held in accordance with the provisions of chapter 54 and prior to the effective date of the suspension. The commissioner shall send a suspension notice to such person informing such person that such person's operator's license or nonresident operating privilege is suspended as of a date certain and that such person is entitled to a hearing prior to the effective date of the suspension and may schedule such hearing by contacting the Department of Motor Vehicles not later than seven days after the date of mailing of such suspension notice." See footnote 3 of this opinion. The changes that were made to the A-44 form bore the initials "RH," which the plaintiff acknowledges are those of Biggs' supervising officer, Hennessey, who administered the oath to Biggs. General Statutes § 4-183 provides in relevant part: "(a) A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the Superior Court as provided in this section. The filing of a petition for reconsideration is not a prerequisite to the filing of such an appeal." See footnote 2 of this opinion. Of course, although a report that complies with General Statutes § 14-227b(c) is admissible, if the report is so confusing and ambiguous that it reasonably cannot be relied on, then it would be improper for a hearing officer to do so. That is not the case here.

12487045

Nancy HELFANT, Executrix (Estate of Irwin Helfant), et al. v. YALE-NEW HAVEN HOSPITAL et al.

Helfant v. Yale-New Haven Hosp.

2016-09-06

No. 37569.

347

355

145 A.3d 347

145

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-09-08T21:16:17.237805+00:00

Fastcase

Nancy HELFANT, Executrix (Estate of Irwin Helfant), et al. v. YALE-NEW HAVEN HOSPITAL et al.

Nancy HELFANT, Executrix (Estate of Irwin Helfant), et al. v. YALE-NEW HAVEN HOSPITAL et al. No. 37569. Appellate Court of Connecticut. Argued March 1, 2016. Decided Sept. 6, 2016. John T. Bochanis, Bridgeport, for the appellants (plaintiffs). S. Peter Sachner, Middlebury, with whom, on the brief, was Amy F. Goodusky, Hartford, for the appellees (defendant Middlesex Hospital et al.). ALVORD, PRESCOTTand WEST, Js.

4341

27694

WEST, J. The plaintiff, Nancy Helfant, in her capacity as the executrix of the estate of Irwin Helfant, the decedent, and in her individual capacity, brought this medical negligence action against the defendants, Middlesex Hospital, Middlesex Hospital Shoreline Medical Center, Yale-New Haven Hospital, and the agents, servants, and employees of these institutions, and against John Lynch and Henry Cabin, both physicians, individually. The plaintiff appeals from the judgment of the trial court dismissing the action on the ground that the plaintiff failed to satisfy General Statutes § 52-190a by filing a written opinion of a similar health care provider that there appears to be negligence on the part of the defendants. The plaintiff claims that the court improperly determined that the opinion letter filed in the present case failed to demonstrate that the author of the letter was a similar health care provider as defined by General Statutes § 52-184c. Because we conclude that the opinion letter submitted by the plaintiff was not from a similar health care provider, we affirm the judgment of the trial court. The record discloses the following relevant procedural history. The plaintiff filed a complaint against the defendants on March 20, 2008, and a revised complaint on November 12, 2008, in which she, in her capacity as executrix, asserted a wrongful death claim on the basis of the defendants' medical malpractice. In her revised complaint, the plaintiff alleged the following facts, the truth of which we assume for purposes of her appeal. On December 5, 2005, the plaintiff's decedent was admitted for treatment by Lynch at Middlesex Hospital Shoreline Medical Center, was subsequently transferred to Yale-New Haven Hospital, where Cabin rendered care, and the decedent later died. The plaintiff alleged that the decedent's death was caused by the negligence, carelessness, and breach of the duty of care of the institutional defendants through their agents, servants, and employees. The plaintiff also alleged that the decedent's death was caused by the negligence, carelessness, and breach of the duty of care of the defendant physicians, Lynch and Cabin. Furthermore, the plaintiff alleged that as a result of the breach of the duty of care by the defendants, the decedent died on December 5, 2005. The plaintiff additionally alleged that as a result the decedent sustained pain and suffering, incurred various medical care, funeral, and burial expenses, and lost his capacity to earn wages and carry out life's activities. Additionally, the plaintiff, in her individual capacity, alleged that as a result of the defendants' breach of the duty of care owed the decedent, she suffered a loss of companionship, support, love and consortium with her husband, the decedent. Attached to the complaint was a good faith certificate signed by the plaintiff's attorney. The plaintiff's attorney represented therein that, following a reasonable inquiry by him, he believed in good faith that grounds existed for a medical malpractice action against the defendants. Additionally, the plaintiff attached a document entitled "Medical Evaluation Report" authored by Robert Pieroni, a physician. The letter stated in relevant part: "The communication between Doctors Lynch and Cabin and agents of their hospitals was frankly abysmal, and their actions and inactions in their 'treatment' of [the decedent] were distinctly substandard." The opinion letter set forth the specific facts related to the decedent's condition at the time he arrived at Middlesex Hospital Shoreline Medical Center. Additionally, the letter delineated the ways in which the defendants failed to provide adequate or appropriate care, which allegedly led to the decedent's demise. The letter's stationary indicated that Pieroni was certified as a specialist by various American boards of medicine, however, a specialty of emergency medicine was not one of the many listed. Thereafter, the defendants moved to dismiss the plaintiff's revised complaint on the grounds that the opinion letter submitted by the plaintiff did not comply with § 52-190a, because it was not authored by a "similar health care provider," and that it was insufficiently detailed in that it did not provide for how the defendants deviated from the standard of care. In support of their motion to dismiss, the defendants submitted as an exhibit an affidavit executed by Lynch. In the affidavit Lynch averred that he "[was] an emergency room physician . and [had] been board certified by the American Board of Emergency Medicine since June 18, 2004." The plaintiff filed an objection to the motion and attached as exhibits an affidavit made by the opinion letter author, Pieroni, as well as his curriculum vitae. In the affidavit, Pieroni averred that he "previously and currently [performs] physician responsibilities in a hospital emergency room department and [has] experience in providing emergency medical care." Pieroni further stated that he "[had] been previously called upon to assist emergency room physicians in the diagnosis and treatment of patients...." He also declared that "[a]s a board certified physician in internal medicine, family medicine, and other specialty areas, [he had] been trained to perform medical diagnosis and treatment in different settings including emergency department settings...." On October 5, 2009, the trial court, Wilson, J., entered an order sustaining the plaintiff's objection to the defendants' motion to dismiss. Subsequently, the defendants filed a motion to reargue their motion to dismiss, citing, inter alia, Bennett v. New Milford Hospital, Inc., 117 Conn.App. 535, 979 A.2d 1066 (2009), aff'd, 300 Conn. 1, 12 A.3d 865 (2011). The court later granted the defendants' motion to reargue, vacated its order of October 5, 2009, and heard reargument on the defendants' motion to dismiss. In an April 6, 2010 memorandum of decision, the court granted the defendants' motion to dismiss. The court summarized the key arguments advanced by the parties as follows: "[Lynch] argue[d] that the plaintiff's complaint must be dismissed pursuant to § 52-190a (c)because the author of the plaintiff's opinion letter [was] not a 'similar health care provider' as defined by § 52-184c (c). [He] further [contended] that the letter [was] not sufficiently detailed to allege medical negligence, in that it neither [stated] a standard of care nor [illustrated] how [he] breached that standard. Lastly, [Lynch argued] that the letter [was] conclusory in its entirety. "The plaintiff [countered] that § 52-190a (c)provides for dismissal only where a plaintiff neglects to attach an opinion letter to a complaint. In addition, she [argued] that the opinion author is a similar health care provider because he has sufficient experience in the field of emergency medicine, which is unlike other medical specialties in that it is defined solely by the setting in which the care is rendered. The plaintiff further [argued] that the sufficiency of the detail of a medical opinion letter is not properly raised in a motion to dismiss; and that, if the court [were to find] that it is, the letter is sufficiently detailed. "The plaintiff filed a supplemental objection to the defendants' motion to dismiss, in which she [countered], inter alia, that the care rendered by [Lynch] was outside of his specialty. Therefore, the plaintiff [contended] that the opinion letter author [Pieroni] is a similar medical provider under § 52-184c (c), although [Pieroni] is not board certified in emergency medicine. In reply, the defendants [asserted] that Bennett [v. New Milford Hospital, Inc., supra, 117 Conn.App. 535, 979 A.2d 1066,] still controls this issue, focusing on [Lynch's] board certification relative to that of [Pieroni]. The defendants also [argued] in reply that the substance of the letter at issue is lacking, and that it is deficient as against the institutional defendants...." The trial court concluded that this court's decision in Bennett v. New Milford Hospital, Inc., supra, 117 Conn.App. 535, 979 A.2d 1066, was "controlling as to the validity of the opinion letter as against [Lynch]." The court noted that "[n]owhere in the record is there any indication that [Pieroni] is board certified in emergency medicine." The court concluded, therefore, that "since [Lynch] is board certified in emergency medicine, § 52-190a (a)and 52-184c (c)require that a similar health care provider be board certified in emergency medicine." The court further concluded that "[u]nder the standard set forth in Bennett , and § 52-190a (a), the letter cannot be determined to have been authored by a similar health care provider." Accordingly, the court granted the defendants' motion to dismiss pursuant to § 52-190a (c)inasmuch as it related to Lynch. The court separately addressed "whether the opinion letter, although insufficient as to [Lynch] [remained] sufficient as against the institutional defendants...." Noting that the plaintiff's revised complaint alleged vicarious liability against only the institutional defendants for the negligent conduct of Lynch as their agent, the court concluded that because it found the opinion letter deficient as offered against Lynch individually, it must follow that it was also deficient as against the institutional defendants as Lynch's principals. "We begin by noting the well established standard of review on a challenge to a ruling on a motion to dismiss. When the facts relevant to an issue are not in dispute, this court's task is limited to a determination of whether, on the basis of those facts, the trial court's conclusions of law are legally and logically correct.... Because there is no dispute regarding the basic material facts, this case presents an issue of law, and we exercise plenary review.... Similarly, the meaning of a statute is a question of law over which our review is plenary." (Citations omitted; internal quotation marks omitted.) Bennett v. New Milford Hospital, Inc., supra, 117 Conn.App. at 541, 979 A.2d 1066. On appeal, the plaintiff claims that the court improperly dismissed the action on the ground that the opinion letter was not authored by a similar health care provider. The plaintiff argues that the opinion letter complies with § 52-190a, and, therefore, is sufficient to support a claim against Lynch and the institutional defendants. Thus, the plaintiff asserts that the dismissal of the action was unwarranted. The defendants claim that the court properly applied the holding of Bennett in concluding that the opinion letter's author did not meet the objective standard imposed by § 52-190a, requiring that the attesting expert be a similar health care provider to Lynch. General Statutes § 52-190a (a)provides in relevant part that "[n]o civil action or apportionment complaint shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, whether in tort or in contract, in which it is alleged that such injury or death resulted from the negligence of a health care provider, unless . the claimant or the claimant's attorney, . obtain[s] a written and signed opinion of a similar health care provider, as defined in section 52-184c, which similar health care provider shall be selected pursuant to the provisions of said section, that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion...." "To interpret the requirements of § 52-190a (a), we must read it together with § 52-184c, the statute regarding similar health care providers. Subsections (b)and (c) of § 52-184cdefine a 'similar health care provider' for purposes of the statute. For physicians who are board certified or hold themselves out as specialists, subsection (c) of § 52-184cdefines 'similar health care provider' as 'one who: (1) [i]s trained and experienced in the same specialty; and (2) is certified by the appropriate American board in the same specialty....' " Bennett v. New Milford Hospital, Inc., supra, 117 Conn.App. at 546, 979 A.2d 1066. Because Lynch is certified by the American Board of Emergency Medicine, is trained and experienced in emergency medicine, and holds himself out as a specialist, pursuant to the plain language of § 52-190a (a)and 52-184c (c), a "similar health care provider" with respect to Lynch would be a physician who is not only trained and experienced in emergency medicine, but one who is also "certified by the appropriate American board" in emergency medicine. General Statutes § 52-184c (c). Accordingly, before bringing an action alleging medical negligence on Lynch's part, the plaintiff or her attorney needed to obtain and file a written and signed opinion from such a physician indicating that there appears to be evidence of such negligence. Because the plaintiff's expert is not board certified in emergency medicine, he does not fall within the statutory definition of a similar health care provider as set forth in § 52-184c (c). The plaintiff, citing § 52-184c (c), contends that the opinion letter author is a similar health care provider for purposes of § 52-190a, even if his board certification is not in the exact same certification as that of Lynch. The plaintiff argues that the exception contained in § 52-184c (c) is applicable because Lynch was not providing treatment to the decedent solely within his claimed specialty of emergency medicine. Specifically, the plaintiff notes that Lynch's diagnosis and treatment of the decedent's condition-air in the chest cavity-was not caused by any trauma and, thus, was a condition outside of his emergency medicine specialty. The plaintiff also relies on the fact that she did not assert any allegations in the complaint based on Lynch's specialization in emergency medicine, and further argues that the facts of this case are different than those in Bennett. The plaintiff contends that this case, therefore, is distinguishable from Bennett simply because the plaintiff in Bennett alleged that the defendant physician was specialized in emergency medicine, whereas the plaintiff in this case did not. She asserts that by not alleging that Lynch was acting within his medical specialty of emergency medicine while negligently treating the decedent, the exception in § 52-184c (c), regarding providing treatment or diagnosis for a condition not within a provider's specialty, applies. It is important to note, however, that the plaintiff did not allege in her revised complaint that Lynch was acting outside of his medical specialty when he rendered treatment to the decedent. Furthermore, the plaintiff did not restrict her claims against Lynch to properly interpreting a chest X-ray. Rather, the revised complaint alleges that Lynch failed to take a proper history of the decedent, properly diagnose, and conduct the proper diagnostic testing on the decedent, which would fall within the specialty of emergency medicine. See footnotes 5 and 6 of this opinion. Moreover, the plaintiff essentially is arguing that merely by omitting language regarding Lynch's specialty, the exception in § 52-184c (c)applies; however, if that assertion were accepted, it would seem that by omitting such language regarding a defendant's specialty, a plaintiff could always plead his or her way around the statute. Additionally, even if the plaintiff's proposition that the alleged negligence of Lynch was limited to the improper interpretation of a chest X-raywere accepted, this act would not appear to fall outside of his field of specialization as a board certified emergency medicine physician. Indeed, there were no facts alleged in the revised complaint to demonstrate that the interpretation of X-rays falls outside the purview of the emergency medicine specialty. The fact that Lynch was interpreting the chest X-rayin an emergency room setting also leads us to the conclusion that it was within his specialty of emergency medicine. In Farrell v. Bass, 90 Conn.App. 804, 812-13, 879 A.2d 516 (2005), this court upheld the trial court's finding that a plastic surgeon's direction to his patient to discontinue taking the medication Coumadin, a blood thinner, for two days prior to surgery was not sufficient to conclude that the plastic surgeon was providing treatment or diagnosis for a condition which is not within his specialty, as stated in § 52-184c (c). The trial court had concluded that any direction to the patient to discontinue Coumadinfor a time was given in the physician's role as a plastic surgeon. Id., at 814, 879 A.2d 516. Similarly, in this case, Lynch's interpretation of the decedent's X-ray was done within his role as an emergency medicine physician rendering treatment in an emergency room setting. Thus, we conclude that Lynch was not providing treatment or diagnosis for a condition that was not within his specialty and, therefore, the exception in § 52-184c (c)does not apply to the facts of this case. Accordingly, pursuant to § 52-190a (a)and 52-184c (c), the plaintiff's medical opinion letter should have been authored by a physician who is both trained and experienced and board certified in emergency medicine. Additionally, the plaintiff contends that the medical opinion letter was sufficient to support a claim against the institutional defendants; however, as the trial court concluded, the plaintiff did not allege that the liability of the institutional defendants arose from anything other than vicarious liability for the negligent conduct of Lynch as their agent. The plaintiff cites several Superior Court cases to support the proposition that a written opinion that addresses only the negligence of the physicians is sufficient to withstand a motion to dismiss in an action in which the alleged medical malpractice of a hospital or similar entity is premised on the conduct of its individual physicians, employees, or staff. The plaintiff argues that the fact that Lynch was the only agent specifically named in the complaint does not limit the allegations in the complaint against the institutional defendants to just his negligent acts and argues that because they alleged negligence on the part of the institutional defendants' "agents, servants, and employees," the written opinion letter authored by Pieroni is sufficient to support a claim against those defendants. Our Supreme Court in Wilkins v. Connecticut Childbirth & Women's Center, 314 Conn. 709, 727, 104 A.3d 671 (2014), concluded that, under certain circumstances, an opinion letter from a properly qualified physician in support of a complaint may also support allegations directed against subordinate providers practicing in the same medical specialty. In the present case, however, because Pieroni was not properly qualified to author the opinion letter as against Lynch, the letter would not support allegations directed at any subordinate providers whose negligence would be imputed to the institutional defendants. Accordingly, because we conclude that the medical opinion letter was insufficient as offered against Lynch, we conclude that it was insufficient as against the institutional defendants as well. On the basis of the foregoing, because the opinion letter submitted by the plaintiff was not authored by a similar health care provider pursuant to § 52-190a (a) and 52-184c (c), we conclude that the court properly dismissed the action. The judgment is affirmed. In this opinion the other judges concurred. We refer in this opinion to Nancy Helfant in both capacities as the plaintiff. Middlesex Hospital maintained and operated a public hospital in the city of Middletown and state of Connecticut known as Middlesex Hospital, and in the town of Essex, known as Middlesex Hospital Shore Line Medical Center. The plaintiff resolved her case against Yale-New Haven Hospital and Henry Cabin prior to filing this appeal. Therefore, the remaining defendants in this appeal, Middlesex Hospital, Middlesex Hospital Shoreline Medical Center, and John Lynch, will be referred to collectively as the defendants, and individually by name when appropriate. The defendants Middlesex Hospital and Middlesex Hospital Shoreline Medical Center will be collectively referred to as the institutional defendants. General Statutes § 52-190aprovides in relevant part: "(a) No civil action or apportionment complaint shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, whether in tort or in contract, in which it is alleged that such injury or death resulted from the negligence of a health care provider, unless the attorney or party filing the action or apportionment complaint has made a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant. The complaint, initial pleading or apportionment complaint shall contain a certificate of the attorney or party filing the action or apportionment complaint that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant or for an apportionment complaint against each named apportionment defendant. To show the existence of such good faith, the claimant or the claimant's attorney, and any apportionment complainant or the apportionment complainant's attorney, shall obtain a written and signed opinion of a similar health care provider, as defined in section 52-184c, which similar health care provider shall be selected pursuant to the provisions of said section, that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion.... "(c) The failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action." General Statutes § 52-184cprovides in relevant part: "(a) In any civil action to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, in which it is alleged that such injury or death resulted from the negligence of a health care provider, as defined in section 52-184b, the claimant shall have the burden of proving by the preponderance of the evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider. The prevailing professional standard of care for a given health care provider shall be 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. "(b) 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 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. "(c) 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'...." The plaintiff alleged that the defendant hospitals breached their duties in the following ways: "(a) In that [they] failed to use the care and skill ordinarily used by hospitals in the state of Connecticut. "(b) In that [their] agents, servants and/or employees failed to properly diagnose and treat the [decedent] while he was a patient in the defendants' hospitals. "(c) In that [their] agents, servants and/or employees failed to take a proper history of the decedent; "(d) In that [their] agents, servants and/or employees failed to properly diagnose the decedent's condition; "(e) In that [their] agents, servants and/or employees failed to conduct proper diagnostic testing of the decedent's condition; "(f) In that [their] agents, servants and/or employees failed to properly monitor the decedent's condition; "(g) In that [their] agents, servants and/or employees failed to use the proper treatment, care and skills ordinarily used by hospitals in the state of Connecticut." The plaintiff alleged that the defendant physicians breached their duties in the same ways as articulated against the defendant hospitals. The full text of the letter read as follows: "I have reviewed in detail, and on several occasions, medical records forwarded to me pertaining to the treatment of Irwin Helfant by [Lynch] and agents of Middlesex Hospital on 10/4/05 and by [Cabin] and agents of Yale-New Haven Hospital until his premature demise on 12/5/05. "[The decedent] was known to have a history of surgery for esophageal rupture. He presented to Middlesex Hospital Emergency Department with complaints o[f] nausea and vomiting, chest and abdominal pain, shortness of breath, diaphoresis and anorexia. His lab values included normal cardiac enzymes but markedly elevated WBC with a left shift, elevated liver and kidney function tests and an abnormal chest X-ray, with a large area of consolidation. "Despite the extremely high likelihood that the [decedent] was infected from a repeat esophageal disruption, Doctor Lynch failed to make this diagnosis and transferred [the decedent] to Yale-New Haven Hospital's cardias catheterization lab for further evaluation and intervention by Henry S. Cabin, M.D. and his Yale team, who again failed to appropriately diagnose and treat the [decedent]. "The communication between Doctors Lynch and Cabin and agents of their hospitals was frankly abysmal, and their actions and inactions in their 'treatment' of [the decedent] were distinctly substandard. More likely than not [the decedent] would have survived had he been properly diagnosed and treated." The court concluded that "[b]ecause [it found] that the opinion letter submitted by the plaintiff was not authored by a 'similar health care provider' as to the institutional defendants, it need not reach the issue of whether the substance [of the] letter [was] sufficient." The portion of § 52-184c (c)that the plaintiff refers to as the exception states: "[P]rovided 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.' "

12486179

A BETTER WAY WHOLESALE AUTOS, INC., v. COMMISSIONER OF MOTOR VEHICLES.

A Better Way Wholesale Autos, Inc. v. Comm'r of Motor Vehicles

2016-07-26

No. 37402.

1209

1216

142 A.3d 1209

142

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-09-08T21:16:17.237805+00:00

Fastcase

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

A BETTER WAY WHOLESALE AUTOS, INC. v. COMMISSIONER OF MOTOR VEHICLES.

A BETTER WAY WHOLESALE AUTOS, INC. v. COMMISSIONER OF MOTOR VEHICLES. No. 37402. Appellate Court of Connecticut. Argued March 8, 2016. Decided July 26, 2016. Kenneth A. Votre, New Haven, for the appellant (plaintiff). Drew S. Graham, assistant attorney general, with whom, on the brief, was George Jepsen, attorney general, for the appellee (defendant). DiPENTIMA, C.J., and ALVORD and AGATI, Js.

3517

21729

AGATI, J. General Statutes § 14-54(a) requires automobile dealers who wish to obtain a license "for dealing in . motor vehicles" first to obtain and present to the Commissioner of Motor Vehicles a certificate of approval from local officials in the municipality where the dealer wishes to operate. The defendant, the Commissioner of Motor Vehicles (commissioner), determined after an administrative hearing that the plaintiff, A Better Way Wholesale Autos, Inc., failed to comply with this statutory provision. The sole issue raised in this appeal is whether the administrative record contains substantial evidence to support this determination. We conclude that the record lacks substantial evidence to show that the plaintiff violated § 14-54(a) and, accordingly, reverse the judgment of the Superior Court. The following facts and procedural history are relevant to this appeal. The plaintiff is a used car dealer with a principal place of business located at 423 Rubber Avenue in Naugatuck. The Department of Motor Vehicles has issued the plaintiff two licenses to operate car dealerships at two separate locations in Naugatuck located at 423 and 381 Rubber Avenue, respectively. In addition to these parcels, the plaintiff leases a third, unlicensed parcel located on Old Firehouse Road in Naugatuck (storage lot), on which it stores several hundred cars. Pursuant to an anonymous complaint, the commissioner investigated whether the plaintiff was selling cars on the storage lot without a license. At the conclusion of this investigation, one of the commissioner's investigators, Robert Bellante, determined that the plaintiff had violated § 14-54(a). Subsequently, the commissioner sent the plaintiff notice that it was to appear for an administrative hearing. In its notice, the commissioner alleged that the plaintiff had operated a car dealership on an unlicensed lot in violation of § 14-54(a) and General Statutes § 14-52(a), a provision which requires, inter alia, individuals and entities to obtain used car dealer's licenses. The parties appeared before an administrative hearing officer on February 22, 2013. At the hearing, the commissioner submitted evidence to prove that the plaintiff had operated a car dealership on the unlicensed storage lot. Specifically, the commissioner submitted Bellante's report, which stated that the storage lot contained several hundred vehicles; that he spoke with John Gorbecki, the plaintiff's principal; that Gorbecki informed Bellante that potential customers are permitted to view cars on the storage lot, but that sales take place at 423 Rubber Avenue; and that the gate to the storage lot is never locked because emergency vehicles, which the town parks on the storage lot, need to be able to exit in the event of an emergency. Bellante also reported that a storage trailer containing car keys, a compressor, and a jump start was located on the storage lot. Steve Licitra, a different investigator employed by the commissioner, testified that he investigated the plaintiff independently of Bellante, and that during his investigation, he spoke with two individuals on the storage lot. Licitra stated that when he asked these individuals what they were doing, they responded that they were looking at cars to buy. He testified that these individuals said that they were directed to the storage lot by a salesperson at the main office. He also stated that buyer guides were displayed prominently on the windows of the vehicles. When asked if he had any knowledge of whether the plaintiff had obtained approval from Naugatuck for the storage lot, Licitra stated that he did not know. The plaintiff sought to demonstrate that its activities on the storage lot did not constitute operating a car dealership. To this end, the plaintiff elicited testimony from Licitra that neither he nor anyone else employed by the commissioner ever had witnessed any transactional conduct on the storage lot, such as negotiation between customers and salespeople, the exchange of cash, or the execution of bills of sale. The plaintiff also elicited testimony from Gorbecki that the storage lot was used only to store excess inventory, not to sell or to service cars. Gorbecki admitted that salespeople at 423 Rubber Avenue sometimes would direct customers to the storage lot to view cars, but he also testified that if a customer was interested in a car, that customer would return to the main office at 423 Rubber Avenue and the transaction would occur there. Finally, Gorbecki testified about discussions he had with local officials in Naugatuck, including the town's zoning manager. Specifically, Gorbecki testified that town officials wished to maintain a thoroughfare through the storage lot so that emergency vehicles could cut through in the event of an emergency. The plaintiff also produced minutes from the June 16, 2010 meeting of the Naugatuck Zoning Commission (zoning commission). The minutes state that at that meeting, the zoning commission discussed whether to grant the plaintiff's application "to park cars on [the storage lot] located on Elm St [reet] and Rubber [Avenue]." The plaintiff also submitted a document, dated June 16, 2010, which appears to be approval from the zoning commission to park 400 cars on the storage lot. During cross-examination, Licitra admitted that he had not spoken with any local officials regarding approvals for the storage lot. Moreover, he conceded that he was not challenging the veracity or authenticity of the zoning commission minutes or the other documents submitted. On August 2, 2013, the hearing officer issued his findings of fact, conclusions of law, and order. Specifically, he found that the plaintiff's activities at the storage lot constituted "merchandising," which he concluded was part and parcel of its business of offering for sale and selling used cars. The hearing officer also found that the storage lot "was not approved by local authority for anything other than the parking of cars." Consequently, the hearing officer found that the plaintiff had operated a used car dealership at an unlicensed location in violation of § 14-52(a) and 14-54(a). Accordingly, the hearing officer ordered the plaintiff to pay a civil fine in the amount of $5000. The plaintiff filed an administrative appeal in the Superior Court, pursuant to General Statutes § 4-183, claiming that the hearing officer improperly concluded that it had violated § 14-52(a) and 14-54(a). After a hearing on the matter, the court, Schuman, J., sustained the appeal with respect to the hearing officer's determination that the plaintiff had violated § 14-52(a), but affirmed the hearing officer's determination that the plaintiff had violated § 14-54(a). In its analysis, the court sought to reconcile § 14-54(a) with § 14-52(a), notwithstanding the fact that it had found that the plaintiff had not violated § 14-52(a). In particular, the court determined that "a person desiring a motor vehicle dealer's license under § 14-52 must first, under § 14-54, obtain a certificate of approval of the municipal authorities for the location for which such license is desired and then present the certificate to the commissioner." (Emphasis added.) Thus, the court determined that the license that a person "desires to obtain" under § 14-54(a) is a license under § 14-52(a). Although the court recognized that § 14-54(a) "does not specifically state that a dealer must obtain a state license for each location where it wishes to operate," it nevertheless concluded that "the statute strongly implied that requirement by providing that a dealer shall obtain a certificate of local approval of the 'location for which such license is desired.' " Ultimately, the court concluded that § 14-54(a) requires "an entity 'dealing in . motor vehicles' [to] obtain local approval and then a state license for the location in which it desires to do business" under § 14-52(a). (Emphasis added.) After reviewing the evidence in the administrative record, the court concluded that the plaintiff's conduct on the storage lot constituted " 'dealing in . motor vehicles' so that the plaintiff must obtain a local certificate of approval." The court remanded the case for a determination of the fine to be imposed, but noted that the fine could not exceed $1000 pursuant to General Statutes § 14-51a. This appeal followed. We begin with the standard of review. "[J]udicial review of the commissioner's action is governed by the Uniform Administrative Procedure Act [ (UAPA), General Statutes § 4-166 through 4-189 ], and the scope of that review is very restricted.... [R]eview of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable.... Neither this court nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact.... Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion.... "The substantial evidence rule governs judicial review of administrative fact-finding under the UAPA.... An administrative finding is supported by substantial evidence if the record affords a substantial basis of fact from which the fact in issue can be reasonably inferred.... The substantial evidence rule imposes an important limitation on the power of the courts to overturn a decision of an administrative agency.... "It is fundamental that a plaintiff has the burden of proving that the commissioner, on the facts before him, acted contrary to law and in abuse of his discretion.... The law is also well established that if the decision of the commissioner is reasonably supported by the evidence it must be sustained." (Citations omitted; internal quotation marks omitted.) Murphy v. Commissioner of Motor Vehicles, 254 Conn. 333, 343-44, 757 A.2d 561 (2000). On appeal, the plaintiff claims that the court improperly determined that § 14-54(a) applies to the facts of the present case. Specifically, the plaintiff argues that the evidence does not demonstrate that it was "dealing in . motor vehicles" on the storage lot. The plaintiff argues that the storage lot was not operated as a car dealership, and, therefore, that it did not need approval of local officials under the statute. Additionally, the plaintiff argues that § 14-54(a) does not require licensing at all; instead, it simply states that to the extent a person desires to obtain a license, such person must obtain local approval and present a certificate of approval to the commissioner. In response, the commissioner seeks, as the court did, to correlate § 14-54(a) with § 14-52(a). In particular, the commissioner argues that § 14-54(a) requires a license under § 14-52(a) if the activities on the location at issue constitute "dealing in . motor vehicles." The commissioner argues that there is ample evidence in the record to support the court's determination that the plaintiff was "dealing in . motor vehicles" on the storage lot in violation of § 14-54(a), such as the evidence that customers were directed to the storage lot and that buyer guides were displayed on the vehicles. As a preliminary note, we must stress that the issue of whether the plaintiff violated § 14-52(a) is not before us. Instead, we must determine whether there is substantial evidence in the administrative record to support the court's determination that the plaintiff violated § 14-54(a). In order to do so, we must evaluate the statutory framework in subpart (D) of title 14 of the General Statutes. The commissioner has the power to impose civil penalties for conduct that constitutes a violation of, among other provisions, § 14-54(a). See General Statutes § 14-51a ("[t]he commissioner may, after notice and hearing, impose a civil penalty of not more than one thousand dollars on any person, firm or corporation who violates any provision of sections 14-54 to 14-67a, inclusive"). Section 14-54(a), in turn, provides that "[a]ny person who desires to obtain a license for dealing in . motor vehicles in a municipality having a population of no less than twenty thousand shall first obtain and present to the commissioner a certificate of approval of the location for which such license is desired from the board or authority designated by local charter, regulation or ordinance of the town, city or borough wherein the business is located or is proposed to be located...." In other words, § 14-54(a) states that if a person desires to obtain a license, then such person must obtain approval from local officials and present proof of that approval to the commissioner. The failure to obtain such approval from local officials and to verify such approval with the commissioner is the conduct that is proscribed by the statute, and such conduct may result in civil penalties pursuant to § 14-51a. Thus, we must determine whether the record contains substantial evidence that the plaintiff failed both to obtain local approval and to present such approval to the commissioner. On the basis of our review, we conclude that the administrative record lacks substantial evidence to support the hearing officer's determination. To begin with, we note that the plaintiff has maintained throughout that it never desired to obtain a license to "[deal] in . motor vehicles" on the storage lot. No evidence to the contrary has been presented. Second, and more importantly, the record is devoid of any evidence that the plaintiff, consistent with a desire to obtain a license, failed either to obtain a certificate of approval from local officials or to present such a certificate to the commissioner. The documentary and testimonial evidence adduced at the hearing overwhelmingly addressed whether the plaintiff was operating a used car dealership on the storage lot. For example, there was evidence that the plaintiff stored hundreds of cars on the storage lot, which were displayed with buyer guides, and that the plaintiff directed customers onto the storage lot to view the inventory. But as we previously noted, this appeal only requires us to consider whether the plaintiff failed to obtain and verify local zoning approval. See General Statutes § 14-54(a). None of the evidence concerning whether the plaintiff operated a car dealership on the storage lot speaks to whether the plaintiff failed to obtain and verify local zoning approval. Moreover, practically none of the evidence submitted to the hearing officer addressed whether local officials in Naugatuck had any knowledge of or involvement in permitting the storage lot. The evidence that was submitted to this issue, however, fell far short of demonstrating that such approval was not obtained. For example, Licitra was asked if he was aware of whether the plaintiff obtained approval from Naugatuck officials for the storage lot, and he responded that he did not know. Indeed, Licitra admitted that he had not spoken with any local officials regarding approvals for the storage lot. At one point, Licitra was shown the minutes from the June 16, 2010 meeting of the zoning commission and the June 16, 2010 document approving the plaintiff to park 400 cars on the storage lot. Licitra did not challenge the authenticity or veracity of these documents. Significantly, no representative of the commissioner ever has challenged these documents, whether before the hearing officer, the trial court, or this court. Thus, the evidence suggests that the plaintiff did in fact obtain local approval, just not for the purpose of operating a used car dealership. The commissioner nevertheless argues that § 14-54(a) does in fact contain a licensing requirement. In support of this argument, the commissioner cites to Mohican Valley Concrete Corp. v. Zoning Board of Appeals, 75 Conn.App. 45, 815 A.2d 145 (2003). In that case, this court stated that "§ 14-54 requires a person who contemplates establishing a new automobile dealership in this state to obtain a state license. A state license, in turn, is conditioned upon approval of the proposed location by a local zoning board." (Footnote omitted.) Id., at 46, 815 A.2d 145. We reject the commissioner's contention. First, we disagree that the quoted pronouncement of this court in Mohican Valley Concrete Corp. is binding with respect to § 14-54(a). The court in that case was not tasked with the meaning or requirements of § 14-54(a). Instead, that case, as the court noted, "concern[ed] the validity of a zoning board's decision to grant such an approval." Id. That case addressed the adequacy of a zoning board's decision and whether a car dealer was entitled to a special exception to use a proposed location for a dealership. Id., at 55-59, 815 A.2d 145. Thus, the statement concerning what § 14-54(a) requires is dicta. "Dicta are [o]pinions of a [court] which do not embody the resolution or determination of the specific case before the court [and] [e]xpressions in [the] court's opinion which go beyond the facts before [the] court and therefore are individual views of [the] author[s] of [the] opinion and [are] not binding in subsequent cases as legal precedent." (Internal quotation marks omitted.) Honulik v. Greenwich, 293 Conn. 641, 645 n. 5, 980 A.2d 845 (2009). Second, and more importantly, the plain language of § 14-54(a) simply does not support the commissioner's position. We disagree with the court's determination that § 14-54 "strongly implie[s]" a requirement that car dealers obtain licenses for each location on which they wish to operate a car dealership. Further, whether the plaintiff was "dealing in . motor vehicles" without a license is irrelevant because § 14-54(a) does not proscribe such conduct. As we previously have stated in this opinion, our inquiry in the present case is whether the plaintiff failed to obtain local approval and to present a certificate of approval to the commissioner. Because the record lacks substantial evidence to demonstrate that the plaintiff engaged in this conduct, we conclude that the determination of the hearing officer and the trial court that the plaintiff violated § 14-54(a) cannot stand. The judgment is reversed and the case is remanded with direction to sustain the plaintiff's appeal. In this opinion the other judges concurred. General Statutes § 14-54(a) provides in relevant part: "Any person who desires to obtain a license for dealing in or repairing motor vehicles in a municipality having a population of no less than twenty thousand shall first obtain and present to the commissioner a certificate of approval of the location for which such license is desired from the board or authority designated by local charter, regulation or ordinance of the town, city or borough wherein the business is located or is proposed to be located, except that in any town or city having a zoning commission, combined planning and zoning commission and a board of appeals, such certificate shall be obtained from the zoning commission...." General Statutes § 14-52(a) provides in relevant part: "No person, firm or corporation may engage in the business of the buying, selling, offering for sale or brokerage of any motor vehicle or the repairing of any motor vehicle without having been issued either a new car dealer's, a used car dealer's, a repairer's or a limited repairer's license...." Bellante did not testify. General Statutes § 4-183(a) provides in relevant part: "A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the Superior Court as provided in this section...." On appeal, the commissioner claims that the court improperly concluded that the plaintiff did not violate § 14-52. The commissioner has failed, however, to file a cross appeal, which it was required to do, as an appellee seeking to change the judgment, pursuant to Practice Book § 61-8. See East Windsor v. East Windsor Housing Ltd., LLC, 150 Conn.App. 268, 270 n. 1, 92 A.3d 955 (2014) ("[i]f an appellee wishes to change the judgment in any way, the party must file a cross appeal" [internal quotation marks omitted] ); see also Akin v. Norwalk, 163 Conn. 68, 70-71, 301 A.2d 258 (1972). Consequently, we will not review this claim. General Statutes § 14-51a provides: "The commissioner may, after notice and hearing, impose a civil penalty of not more than one thousand dollars on any person, firm or corporation who violates any provision of sections 14-54 to 14-67a, inclusive, or of not more than two thousand dollars on any person, firm or corporation who violates section 14-52." (Emphasis added.). See footnote 5 of this opinion. Although the parties have neither raised nor briefed it, we note that another provision in title 14 sets forth a licensing requirement for individual lots. See General Statutes § 14-58(a) ("[e]ach new car dealer, used car dealer or repairer before engaging in such business shall make a separate sworn application to the commissioner for a license to engage in such business in each place of business conducted by such dealer").

12486205

Annemarie MORRISSEY-MANTER v. SAINT FRANCIS HOSPITAL AND MEDICAL CENTER et al.

Morrissey-Manter v. Saint Francis Hosp. & Med. Ctr.

2016-06-28

No. 37628.

363

391

142 A.3d 363

142

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-09-08T21:16:17.237805+00:00

Fastcase

Annemarie MORRISSEY-MANTER v. SAINT FRANCIS HOSPITAL AND MEDICAL CENTER et al.

Annemarie MORRISSEY-MANTER v. SAINT FRANCIS HOSPITAL AND MEDICAL CENTER et al. No. 37628. Appellate Court of Connecticut. Argued March 1, 2016. Decided June 28, 2016. Henry E. Jacobs, Hartford, for the appellant (plaintiff). Christopher A. Klepps, Hartford, with whom was Christopher L. Brigham, New Haven, for the appellees (defendants). ALVORD, PRESCOTT and WEST, Js.

14336

90759

PRESCOTT, J. In this wrongful termination of employment action, the plaintiff, Annemarie Morrissey-Manter, appeals from the summary judgment rendered by the trial court in favor of the defendants, Saint Francis Hospital and Medical Center, and Saint Francis Care, Inc. On appeal, the plaintiff claims that the court improperly granted the defendants' motion for summary judgment as to four counts of her amended complaint because one or more genuine issues of material fact existed with respect to her claims that (1) an implied contractual agreement between the parties prohibited her discharge without cause, (2) the defendants terminated her employment in violation of an important public policy, (3) the defendants breached the covenant of good faith and fair dealing by terminating her employment in "bad faith," and (4) the defendants withheld certain medical records and destroyed evidence that would have supported her cause of action. We affirm the judgment of the trial court. The following facts and procedural history are relevant to this appeal. The plaintiff was employed as a registered nurse at Saint Francis Hospital and Medical Center for thirty-two years. On June 4, 2012, at Manchester Memorial Hospital, a patient was seen for cardiac distress. A temporary cardiac pacemaker (pacer) was inserted into the patient. The patient was then transferred to the emergency department at the defendants' facility, and, from there, into the defendants' cardiac intensive care unit. During the transfer of the patient, an admitting nurse unhooked the patient's temporary pacer from the external pacer box, and the pacer box was returned to the ambulance crew that had transferred the patient. Subsequently, members of the nursing staff at the defendants' facility were unable to connect the patient's transvenous pacer wire to an external temporary pacer box because the defendants lacked a proper adapter. During this event, the plaintiff came into the room to offer support to the patient's team and to help stabilize the patient. In violation of hospital policy, but in order to assist the medical team, she took a blade and cut a small portion of the plastic covering the end of the pacer wire in an attempt to make the pacer wire fit into the defendants' temporary pacer box. The plaintiff successfully connected the pacer wire to the temporary pacer box, and, at that point, the patient's blood pressure improved and he stabilized. On June 7, 2012, Gilda Cabral, a nurse manager, met with the plaintiff and discussed a disciplinary action form that had been prepared against her on June 6, 2012. The form, after describing the event as previously discussed, stated that the patient's condition began to deteriorate the morning following his admission to Saint Francis Hospital, and that Dr. Aneesh Tolat, an electro-physiologist, was asked to assess the patient. After assessing the patient, Dr. Tolat determined that the patient was receiving inadequate pacing because the pacer wire may have been compromised and was not stable. Because of this instability, a new pacer wire had to be inserted into the patient through catheterization. According to the form, Dr. Tolat emphasized that "a catheter can never be tampered with. Once it is, even if it seems that the wire is functioning correctly, there is always a question as to the stability of the wire." (Emphasis omitted.) Furthermore, Dr. Tolat was "very disturbed" by the plaintiff's action, which he characterized as "inappropriate and unacceptable." On the form, the box labeled "termination" was marked as the appropriate disciplinary step to be taken, and the form concluded: "This action posed a significant patient safety concern, as this action could have had potentially lethal consequences to the patient; since this wire was in place to ensure that the patient's heartbeat was paced correctly. By compromising the wire, this resulted in the patient having to undergo a procedure to have a new catheter inserted. In addition, this action posed a significant risk to the [h]ospital because this action is not within the scope of practice for a [s]taff [registered nurse]." (Emphasis in original.) The plaintiff resigned her position in lieu of termination. The plaintiff commenced this action against the defendants on August 27, 2012. In her initial five count complaint, the plaintiff alleged breach of an implied contract of employment, violation of the covenant of good faith and fair dealing, wrongful discharge in violation of public policy, negligent infliction of emotional distress, and defamation. On February 14, 2014, the defendants filed a motion for summary judgment, claiming that the plaintiff could not establish the prima facie elements for any of the claims alleged in her complaint. In support of their motion, the defendants filed a memorandum of law, an affidavit by an employee in the defendants' human resources department, copies of two disciplinary action forms against the plaintiff, copies of the defendants' disciplinary action policy and pension plan policy, the plaintiff's responses to the defendants' first set of interrogatories, and an excerpt from the defendants' employee handbook. On April 15, 2014, the plaintiff filed an objection to the defendants' motion for summary judgment. In support of her objection, the plaintiff filed a memorandum of law, the plaintiff's affidavit, and a copy of the plaintiff's letter of resignation. The court held a hearing on the defendants' motion for summary judgment and the plaintiff's objection on May 5, 2014. At that time, the plaintiff stated that she wanted to amend her complaint to include a claim for spoliation of evidence. The court instructed the plaintiff to file such a request as soon as possible. On May 21, 2014, the plaintiff filed a request for permission to amend her complaint to add a count for spoliation of evidence, alleging that the defendants had destroyed and altered the patient's medical records, and had disposed of the pacer wire in bad faith. On July 28, 2014, which was the second day of the hearing on the motion for summary judgment, the court granted the plaintiff's request. With the court's permission, the parties filed supplemental briefs and exhibits that addressed the claim of spoliation. The court issued its memorandum of decision on January 5, 2015. The court concluded that the evidence submitted did not support the existence of an implied contract of employment, and, thus, the plaintiff's status was as an at-will employee. The court also concluded that the plaintiff had not established a genuine issue of material fact regarding the prima facie elements for a cause of action for breach of the covenant of good faith and fair dealing, that she failed to cite a relevant public policy that was violated by her termination of employment, and that she failed to establish a genuine issue of material fact regarding the elements of a claim for spoliation because there was no evidence that any medical records had been destroyed or that the pacer wire had been destroyed by the hospital in bad faith. Accordingly, the court granted the defendants' motion for summary judgment as to all six counts of the plaintiff's complaint. This appeal followed. Before reaching the plaintiff's individual claims, we set forth this court's standard of review in a summary judgment case. "The law governing summary judgment and the accompanying standard of review are well settled. Practice Book § [17-49] requires that judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A material fact is a fact that will make a difference in the result of the case.... The facts at issue are those alleged in the pleadings.... "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact.... As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent.... "The party opposing a motion for summary judgment must present evidence that demonstrates the existence of some disputed factual issue.... The movant has the burden of showing the nonexistence of such issues but the evidence thus presented, if otherwise sufficient, is not rebutted by the bald statement that an issue of fact does exist.... To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts . which contradict those stated in the movant's affidavits and documents.... The opposing party to a motion for summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue.... The existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence.... Our review of the trial court's decision to grant a motion for summary judgment is plenary." (Internal quotation marks omitted.) Brusby v. Metropolitan District, 160 Conn.App. 638, 645-46, 127 A.3d 257 (2015). I The plaintiff first claims that the trial court improperly rendered summary judgment on her count alleging the breach of an implied contract of employment because there was a genuine issue of material fact regarding the existence of an implied employment contract as evidenced by the defendants' "words, actions, conduct [and] course of performance...." (Emphasis omitted.) Specifically, the plaintiff argues that she was not an at-will employee because she was subject to progressive discipline, received merit pay and annual job performance reviews, participated in a 401(k) retirement plan, received verbal assurances of continued employment, and was referred to as " 'a team player and devoted to her job.' " For these reasons, the plaintiff argues, she could not be discharged without just cause. We conclude that the court properly rendered summary judgment on this count. The following additional procedural history is necessary for our review of this claim. In support of their motion for summary judgment, as supplemented, the defendants submitted an affidavit, copies of their disciplinary action and pension plan policies, and an excerpt from their employee handbook stating that "[t]he relationship between Saint Francis and its employees is a relationship of employment at will." The affidavit, signed by Diane Trudeau, a manager in their human resources department, averred that the plaintiff was a noncontractual employee, the defendants adhere to the at-will doctrine in all of their policies and procedures, the plaintiff signed an acknowledgement in 1986 that she received a copy of the employee handbook containing such policies, and at-will employment at the defendants' facility can be documented back to 1992. The policies and employee handbook excerpt that the defendants filed with their motion for summary judgment corroborated Trudeau's statements. The disciplinary action policy provides that "[a]n employee may be given a Final Written Warning with or without Suspension or be terminated, at any time, with or without notice, for a violation of Organization policy or practice or a significant performance issue." (Emphasis omitted.) Another policy, titled "Employment at Will," provides in relevant part: "The purpose of this policy is to affirm that employees who do not have a separate, individual employment contract with the hospital for a specific, fixed term of employment are employed at the will of the hospital for an indefinite period. Employees may resign from the hospital at any time, for any reason, and may be terminated by the hospital at any time, for any reason, with or without cause, and with or without notice." That policy further provides that "[t]his policy shall not be modified by any statements contained in this or any other employee handbooks, employment applications, hospital recruiting materials, memoranda, or other materials provided to employees in connection with their employment. None of those documents, whether singly or combined, shall create an expressed or implied contract of employment for a definite period or an expressed or implied contract concerning any terms or conditions of employment." The final paragraph in that policy provides: "Nothing contained in this manual, employee handbooks, employment applications, memoranda, or other materials provided to employees in connection with their employment shall require the employer to have 'just cause' to terminate that employee or otherwise restrict the employer's right to terminate an employee at any time or for any reason." In her objection to the defendants' motion for summary judgment, the plaintiff did not challenge the existence of the policies as described. Rather, she argued that she had been employed at the defendants' facility for thirty-two years, had been assured that she would remain employed there as long as she did a good job, had received complimentary correspondence regarding her exemplary service, and had been advised that disciplinary action was generally progressive and was a process. Additionally, she alleged that the defendants admitted that they have a matching pension plan contribution in place for all eligible employees. Her affidavit repeats these allegations, although she does not identify the persons who assured her of continued employment if her work performance remained satisfactory. On appeal, the plaintiff contends that she provided sufficient information to create a genuine issue of material fact as to whether she had an implied contract of employment with the defendants. We disagree. "In Connecticut, an employer and employee have an at-will employment relationship in the absence of a contract to the contrary. Employment at will grants both parties the right to terminate the relationship for any reason, or no reason, at any time without fear of legal liability." (Internal quotation marks omitted.) Thibodeau v. Design Group One Architects, LLC, 260 Conn. 691, 697-98, 802 A.2d 731 (2002). "In order to prevail on [her] claim, the plaintiff must demonstrate an actual agreement by the defendant to have an employment contract with [her]. A contract implied in fact, like an express contract, depends on actual agreement.... Accordingly, to prevail on [her] wrongful termination claim, which alleged the existence of an implied agreement between the parties, the plaintiff had the burden of proving by a fair preponderance of the evidence that [the defendant] had agreed, either by words or action or conduct, to undertake [some] form of actual contract commitment to [her] under which [she] could not be terminated without just cause [following progressive disciplinary measures].... To survive a motion for summary judgment, the plaintiff had the burden of presenting evidence that the defendant had agreed to some form of contract commitment. "A contractual promise cannot be created by plucking phrases out of context; there must be a meeting of the minds between the parties.... The mere fact that the plaintiff believed [certain actions or policies] to constitute a contract does not bind [the defendant] without some evidence that it intended to be bound to such a contract." (Citations omitted; internal quotation marks omitted.) Reynolds v. Chrysler First Commercial Corp., 40 Conn.App. 725, 729-30, 673 A.2d 573, cert. denied, 237 Conn. 913, 675 A.2d 885 (1996). The plaintiff's arguments in support of the existence of an implied contract of employment have been made by other plaintiffs in other cases and have been rejected by this court. For example, in Gagnon v. Housatonic Valley Tourism District Commission, 92 Conn.App. 835, 843, 888 A.2d 104 (2006), "[t]he plaintiff claim[ed] that such things as periodic reviews, setting dates at which there would be salary increases, setting long-term benefits and the way other employees were treated [were] evidence of an implied contract between her and [the defendant] that she would not be discharged except for cause. [This court held that] [t]he plaintiff fail[ed] to recognize, however, that it [was] her burden to establish that adherence to these policies and procedures was the result of a contractual commitment by the defendant. [C]ontracts are not created by evidence of customs and usage." (Internal quotation marks omitted.) Furthermore, as previously quoted from the defendants' policies and employee handbook, the defendants disclaimed anything other than an at-will employment relationship with any of their employees who did not have written contracts. Our Supreme Court has "stated with unambiguous clarity that employers can protect themselves against employee contract claims based on statements made in personnel manuals by following either (or both) of two simple procedures: (1) eschewing language that could reasonably be construed as a basis for a contractual promise; and/or (2) including appropriate disclaimers of the intention to contract ." (Internal quotation marks omitted.) Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 535, 733 A.2d 197 (1999). The evidence presented to the trial court by the defendants in support of their motion for summary judgment reveals the existence of such disclaimers in their policies and employee handbook, and the plaintiff presented no competent summary judgment evidence that contradicts that evidence. See Brusby v. Metropolitan District, supra, 160 Conn.App. at 646, 127 A.3d 257. Accordingly, the trial court properly rendered summary judgment as to this count because the plaintiff failed to present evidence that established that there was a genuine issue of material fact regarding whether an implied contractual agreement existed that would prohibit the termination of her employment except for just cause. II The plaintiff next claims that the court improperly rendered summary judgment on count three of her complaint, which alleges that the defendants terminated her employment in violation of an important public policy. See Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 476, 427 A.2d 385 (1980) (employer lacks discretion to terminate at-will employee if termination would violate important public policy). The defendants respond that the court properly determined that the plaintiff failed to identify an important and clearly articulated public policy that was violated as the result of her discharge. We conclude that the plaintiff cannot prevail on her claim. The following additional procedural history is relevant to this claim. In her amended complaint, the plaintiff alleged that her termination violated two public policies. First, she alleged that "[e]ven if this was an at-will employment arrangement, allowing an employer to terminate an employee for saving a man's life is against public policy. Saving a person's life is a substantial public policy and should fall under [t]he [p]ublic [p]olicy [e]xception to the [a]t-[w]ill [e]mployment [r]ule." Second, she alleged that "[t]he [defendants'] attempt to cover up their liability exposure, by firing the [plaintiff] who stepped up to the plate to save a man's life, is improper and violates public policy." In their motion for summary judgment, the defendants claimed that the plaintiff had "not alleged an established public policy" and that she should not "be immunized from an adverse employment action for allegedly saving a patient's life...." At the hearing before the trial court on their motion, the defendants' counsel argued that the plaintiff had altered medical equipment, which was against hospital policy, and that her termination from employment was therefore proper even if she did save a patient's life. In response, in her opposition to the defendants' motion for summary judgment, the plaintiff expanded upon her public policy claim. In support of her allegation that her termination violated a public policy against covering up medical malpractice, the plaintiff set forth two arguments. First, the plaintiff argued that terminating an employee in order to hide medical malpractice by the employer violates a general public policy against covering up negligence. Second, the plaintiff appeared to argue that the defendants had a duty to report adverse medical events to the Department of Health pursuant to General Statutes § 19a-127n (b). According to the plaintiff, that statute embodies a public policy against hospitals covering up medical malpractice, which her termination violated because the defendants' goal in terminating her employment was to cover up an adverse event-the inability to connect the pacer wire to the temporary pacer box. In support of her allegation that her termination violated a public policy in favor of saving a person's life, the plaintiff argued that her termination violated the public policy inherent in the rescue doctrine, because the defendants' negligence placed the patient in peril and invited rescue. "The rescue doctrine is a bar to or precludes the affirmative defenses of contributory negligence and assumption of the risk. A person is not contributorily negligent who, with due care, encounters a risk created by a defendant's negligence in order to perform a rescue necessitated by that negligence, and it is not contributory negligence for a plaintiff to expose him- or herself to a danger in a reasonable effort to save a third person from harm." (Footnotes omitted.) 65A C.J.S. 46-47, Negligence § 267 (2010). "The 'rescue doctrine' allows an injured rescuer to recover damages from the person whose negligence created the need for rescue." Id., p. 48. The court granted the defendants' motion for summary judgment as to the plaintiff's public policy count. Concerning the plaintiff's argument that her termination violated a public policy against covering up medical malpractice, the court held: "While the plaintiff argues that she was terminated in an effort to cover up possible medical malpractice committed by the defendants' other employees, she has proffered no evidence of this alleged malpractice beyond simply speculating that it occurred; nor has the plaintiff cited a relevant public policy that was violated by her termination under the circumstance." With respect to the plaintiff's assertion that her termination violated the public policy inherent in § 19a-127n (b), the court stated: "An 'adverse event' is defined within [§ 19a-127n (b) ] as 'any event that is identified on the National Quality Forum's List of Serious Reportable Events or on a list compiled by the Commissioner of Public Health and adopted as regulations'.... General Statutes § 19a-127n (a)(1). Without entering the National Quality Forum's List of Serious Reportable Events into evidence, the plaintiff states that the List includes 'patient death or serious injury associated with the use or function of a device in patient care, in which the device is used or functions other than as intended.' The plaintiff alleges that because the defendants did not report the adverse event at the heart of this litigation to the Department of Public Health, the event could not have transpired the way the defendants claim it did, and therefore a material issue of fact exists, which precludes the entry of summary judgment as to count three. The plaintiff does not specify exactly what this material issue of fact is, and it is difficult to see how the defendants' alleged failure to comply with the statute is relevant to whether the plaintiff's dismissal occurred for a reason that violates public policy." Concerning the public policy inherent in the rescue doctrine, the court held that "[t]he doctrine is invoked only in determining whether the rescuer's contributory negligence is to be excused.... The rescue doctrine does not constitute a public policy for the purposes of an exception to the at-will employment doctrine; nor is it clear how the rescue doctrine is applicable to the circumstances of the plaintiff's case." (Citation omitted; internal quotation marks omitted.) Importantly, on appeal, the plaintiff does not reassert her contention, made before the trial court, that her termination violated the public policy in favor of saving a person's life as reflected in the rescue doctrine. The plaintiff did not brief on appeal, or mention in any way, her argument that her termination violated the public policy inherent in the rescue doctrine in favor of saving a person's life. Indeed, we have scoured the relevant portions of the plaintiff's brief and have found absolutely no mention or analysis of a general public policy of saving lives or the rescue doctrine. Although the plaintiff factually argues in her brief that her actions saved the patient's life, she does not argue that the defendants' actions in terminating her employment after she saved a life violated an important and clearly articulated public policy of "saving lives." Accordingly, we deem this claim abandoned and decline to review it. See Fradianni v. Protective Life Ins. Co., 145 Conn.App. 90, 92 n. 2, 73 A.3d 896 (claim or argument not briefed deemed abandoned), cert. denied, 310 Conn. 934, 79 A.3d 888 (2013) ; Deutsche Bank National Trust Co. v. Shivers, 136 Conn.App. 291, 292 n. 2, 44 A.3d 879 (claim not briefed on appeal deemed abandoned, and court may decline to review it), cert. denied, 307 Conn. 938, 56 A.3d 950 (2012). The dissent implicitly concedes that this public policy ground is not raised, analyzed, or even mentioned in the portion of the plaintiff's appellate brief addressing count three. Instead, the dissent appears to suggest that a party has not abandoned a claim on appeal as long as that claim was made before the trial court and mentioned in oral argument before this court. This assertion is contrary to well established precedent that appellate courts will treat as abandoned claims that are not briefed adequately. See Barros v. Barros, 309 Conn. 499, 503 n. 4, 72 A.3d 367 (2013) (claim deemed abandoned for inadequate briefing); State v. Weston, 164 Conn. 635, 636, 325 A.2d 457 (1973) (claim not briefed on appeal, although argued during oral argument, treated as abandoned); Braham v. Newbould, 160 Conn.App. 294, 312 n. 15, 124 A.3d 977 (2015) (claim abandoned that was not properly briefed because "[i]t is not the role of this court to undertake the legal research and analyze the facts in support of a claim or argument when it has not been briefed adequately" [internal quotation marks omitted] ). Adherence to this well established precedent is particularly warranted in this case for the following reasons. The dissenting opinion appears to find an important and clearly articulated public policy of "saving lives" inherent in the rescue doctrine, Connecticut's good Samaritan law pursuant to General Statutes § 52-557b, and the public safety exception to the warrant requirement. Because these potential sources of a public policy exception to the employment at-will doctrine were not raised by the plaintiff in her brief, the defendants have had no opportunity to respond to or analyze them. Moreover, although this court has the discretion to address an abandoned claim; Ward v. Greene, 267 Conn. 539, 546, 839 A.2d 1259 (2004) ; we should be particularly cautious of addressing a claim that, in essence, asks the court to recognize a new and broad public policy exception to the at-will employment doctrine without adequate briefing because of the narrowness of the public policy exception to the at-will employment doctrine. See Thibodeau v. Design Group One Architects, LLC, supra, 260 Conn. at 701, 802 A.2d 731 ("the public policy exception to the general rule allowing unfettered termination of an at-will employment relationship is a narrow one" [internal quotation marks omitted] ). Caution is particularly warranted in a case, like this one, involving emergency medicine. There may be compelling reasons in the complex world of emergency medicine that would counsel against recognizing the public policy articulated by the dissent, at least as broadly as the dissent has framed it. As this court previously has suggested in Armshaw v. Greenwich Hospital, 134 Conn.App. 134, 138, 38 A.3d 188 (2012), medical providers should have significant discretion to terminate the employment of an at-will employee who has violated hospital procedures and policies that are in place to guarantee the safety and proper care of patients. Id. ("[o]ur review of the record . does not uncover any explicit statutory mandate, constitutional provision or judicial determination that prevents a hospital from discharging an at-will nursing employee, who has been the subject of previous disciplinary action, for failing to follow conduct and quality of work protocols designed to ensure the safety and proper care of its patients"). Thus, it is particularly troublesome to recognize an amorphous "saving lives" public policy exception to the at-will employment doctrine in the context of emergency medicine, especially in a case in which such a public policy has not been briefed adequately. Even if we were inclined to agree with the dissent that such a public policy exists, the plaintiff has failed to offer any competent summary judgment evidence to establish that a genuine issue of material fact exists regarding whether the termination of her employment violated such a public policy. The dissent considers the uncertified deposition testimony of various members of the defendants' medical staff that the plaintiff attached to her opposition to the motion for summary judgment in concluding that the plaintiff has established a genuine issue of material fact as to whether the termination of her employment violated the alleged public policy. It is unclear, however, whether the trial court considered these documents or whether it excluded them. In its memorandum of decision, the trial court noted that the plaintiff offered these uncertified documents with her opposition to the motion for summary judgment, but makes no further reference to them. The memorandum of decision, however, is unclear as to whether the court actually considered the uncertified deposition testimony. The transcript from the hearing on the motion for summary judgment, however, strongly suggests that the court did not consider these documents. The court specifically advised the plaintiff's counsel that "there has to be something in the record in a proper form and in compliance with the rule of practice for the court to consider in opposition to this motion for summary judgment.... I have nothing . that's a problem." Instead, the plaintiff on appeal argues only that there was a genuine issue of material fact concerning whether her termination violated a public policy against covering up medical malpractice. In support of this claim, the plaintiff, before the trial court, relied on § 19a-127n, which requires hospitals to report adverse medical events, and, thus, according to the plaintiff, embodies a public policy prohibiting hospitals from covering up medical malpractice. On appeal, she also argues that there is a general public policy against terminating an employee in order to cover up the employer's negligence. The plaintiff further argues that to the extent that such a public policy does not exist, this court has the authority to judicially create such a public policy. We conclude that the trial court properly rendered summary judgment with respect to the plaintiff's claim that her termination violated an important public policy prohibiting an employer from covering up negligence. We reach this conclusion for primarily two reasons. First, the plaintiff has failed to establish a genuine issue of material fact regarding whether her termination violated this alleged public policy as it relates to § 19a-127n, which is the only legal authority that she cited before the trial court as support for the existence of this public policy. Second, even if we assume that there is a recognized, general public policy exception that prohibits an employer from engaging in conduct intended to hide instances of negligence, the plaintiff has failed to establish a genuine issue of material fact regarding whether the defendants were negligent and whether she was terminated to cover up that negligence. We begin with the legal principles that guide our analysis. Our Supreme Court has "establish[ed] the principle that public policy imposes some limits on unbridled discretion to terminate the employment of someone hired at will." Sheets v. Teddy's Frosted Foods, Inc., supra, 179 Conn. at 476, 427 A.2d 385. Although the court in Sheets "recognized a public policy limitation on the traditional employment at-will doctrine in an effort to balance the competing interests of employers and employees . [it also] recognized the inherent vagueness of the concept of public policy and the difficulty encountered when attempting to define precisely the contours of the public policy exception. In evaluating claims, [courts should] look to see whether the plaintiff has . alleged that his discharge violated any explicit statutory or constitutional provision . or whether he alleged that his dismissal contravened any judicially conceived notion of public policy." (Citations omitted; internal quotation marks omitted.) Thibodeau v. Design Group One Architects, LLC, supra, 260 Conn. at 700-701, 802 A.2d 731. Our Supreme Court also "repeatedly [has] underscored [that] adherence to the principle that the public policy exception to the general rule allowing unfettered termination of an at-will employment relationship is a narrow one.... [C]ourts should not lightly intervene to impair the exercise of managerial discretion or to foment unwarranted litigation.... Consequently, we have rejected claims of wrongful discharge that have not been predicated upon an employer's violation of an important and clearly articulated public policy." (Citations omitted; internal quotation marks omitted.) Id., at 698-99, 802 A.2d 731 ; see also Morris v. Hartford Courant Co., 200 Conn. 676, 680, 513 A.2d 66 (1986) (public policy exception to at-will employment termination requires particular, explicit public policy); Armshaw v. Greenwich Hospital, supra, 134 Conn.App. at 138, 38 A.3d 188 (exception requires "explicit statutory mandate, constitutional provision or judicial determination" [emphasis added] ). We first address the plaintiff's argument that her termination violated the public policy inherent in our health care statutes mandating the accurate reporting of adverse events. In her appellate brief, the plaintiff does not cite to any specific health care statutes; rather, she merely alleges that "[t]he [d]efendants attempt to hide their corporate negligence by instantly terminating [the plaintiff] . and creating false documents in [violation] of health statutes requiring honest and accurate reporting of adverse health care events.... These statutes taken collectively constitute an important public policy." (Emphasis omitted.) In her opposition to the motion for summary judgment, however, the plaintiff cited only to § 19a-127n (b) in support of this argument. Accordingly, we limit our review to whether there was a genuine issue of fact concerning whether the plaintiff's termination violated a public policy inherent in § 19a-127n (b), one that prohibits hospitals from covering up negligence because it requires the accurate reporting of adverse medical events that occur at hospitals. See Gordon v. Gordon, 148 Conn.App. 59, 65, 84 A.3d 923 (2014) ("[w]e have consistently declined to review claims based on a ground different from that raised in the trial court" [internal quotation marks omitted] ); State v. Ulen, 31 Conn.App. 20, 29, 623 A.2d 70 (same), cert. denied, 226 Conn. 905, 625 A.2d 1378 (1993). Section 19a-127n (b) provides in relevant part: "[A] hospital or outpatient surgical facility shall report adverse events to the Department of Public Health [department] on a form prescribed by the commissioner...." An "adverse event" is defined as "any event that is identified on the National Quality Forum's List of Serious Reportable Events or on a list compiled by the Commissioner of Public Health and adopted as regulations...." General Statutes § 19a-127n (a). Section 19a-127n-2 of the Regulations of Connecticut State Agencies provides in relevant part: "(b) All adverse events identified in the National Quality Forum's list of serious events, as amended, and those on the list compiled by the department, as amended, shall be reported by the facility on the adverse event reporting form prescribed by the Commissioner...." For two reasons, the plaintiff failed to establish that an issue of material fact existed concerning whether her termination violated the public policy allegedly inherent in § 19a-127n. First, as the trial court found, the plaintiff failed to provide competent summary judgment evidence that the statute applied to the facts of this case. The plaintiff here makes the same error as did the plaintiff in Burnham v. Karl & Gelb, P.C., 252 Conn. 153, 161, 745 A.2d 178 (2000). Our Supreme Court in Burnham held that the plaintiff failed to establish that a genuine issue of material fact existed as to whether her termination violated the public policy inherent in General Statutes § 31-51m because she offered no competent summary judgment evidence that the circumstances of her termination met the requirements of the statute. Id. Section 31-51m prohibits employers from retaliating against employees who report a violation of a federal or state law to a "public body...." (Emphasis omitted; internal quotation marks omitted.) Id., at 160, 745 A.2d 178. Prior to her termination, the plaintiff in Burnham had reported the defendant's allegedly unsafe dental practices to the state dental association. Id., at 155, 745 A.2d 178. The plaintiff, however, failed to offer any competent summary judgment evidence "that the dental association [was] a public body as defined in § 31-51m (a)(4). Therefore, because the plaintiff failed to present evidence that created a material issue of fact as to whether her termination violated the provisions of § 31-51m, we conclude [d] that the plaintiff [could not] use the public policy embodied therein to support her claim of wrongful discharge based on a violation of public policy." Id., at 161, 745 A.2d 178. Similarly, in the present case, the plaintiff has offered no competent summary judgment evidence that § 19a-127n is applicable. For the plaintiff's termination to violate the public policy allegedly inherent in § 19a-127n, the event at issue had to qualify as an adverse event under the statute, and her termination had to somehow be designed to circumvent the defendants' duty to report the adverse event. The plaintiff provided no competent summary judgment evidence that established that there was a genuine issue of material fact as to whether the event at issue qualified as an adverse event pursuant to § 19a-127n. As the trial court stated, the plaintiff did not provide as evidence the National Quality Forum's List of Serious Reportable Events or the list compiled by the department. Although the plaintiff asserted in her pleadings that the event at issue qualified as an adverse event under the National Quality Forum's List of Serious Reportable Events, she offered no evidence to support this assertion. See Trotta v. Branford, 26 Conn.App. 407, 412, 601 A.2d 1036 (1992) ("[d]emonstrating a genuine issue requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred"). Because the plaintiff has offered no competent summary judgment evidence that § 19a-127n is applicable, she cannot use the public policy allegedly embodied therein to support her claim of wrongful discharge based on a violation of public policy. Second, even if the event at issue was an adverse event under § 19a-127n, the plaintiff has not established a genuine issue of material fact regarding whether her termination violated the public policy allegedly inherent in § 19a-127n. Specifically, the plaintiff has failed to explain how her termination alleviated the defendants' duty to report an adverse event pursuant to § 19a-127n or that she was terminated for reporting the event herself. Despite terminating the plaintiff, the defendants' duty to report the adverse event, assuming that the event at issue was an adverse event, continued to exist. Whether the defendants terminated the plaintiff's employment had no effect on their statutory duty to report the adverse event. Additionally, assuming that the allegedly adverse event was not reported to the department, the plaintiff has failed to explain how not reporting the adverse event necessarily equates to an attempt to cover up its alleged negligence. Indeed, the plaintiff conflates a failure to comply with the statutory requirement to report adverse medical events with an attempt to cover up negligence. Not all adverse medical events that presumably must be reported under § 19a-127n, however, constitute negligence. Thus, it is unclear how the plaintiff's termination violated any public policy allegedly inherent in § 19a-127n prohibiting an employer from covering up negligence. Furthermore, this case is distinguishable from cases in which our Supreme Court has held that it violated public policy to terminate an employee who insisted that an employer adhere to a statute or regulation. In Sheets v. Teddy's Frosted Foods, Inc., supra, 179 Conn. at 478, 427 A.2d 385, our Supreme Court held that it violated public policy to terminate an employee in retaliation for the employee calling to the employer's attention repeated violations of the Connecticut Uniform Food, Drug and Cosmetic Act, General Statutes (Rev. to 1977) § 19-211 et seq., now codified at General Statutes § 21a-91 et seq. In the present case, the plaintiff did not allege that she was terminated because she insisted that the defendants comply with § 19a-127n, nor that she was terminated because she reported the defendants' lack of compliance with the statute to the Department of Public Health or another authority. Thus, the plaintiff's claim falls outside the narrow public policy recognized in Sheets v. Teddy's Frosted Foods, Inc., supra, at 478, 427 A.2d 385. Next, we address the plaintiff's more general argument that her termination violated an important and clearly articulated public policy prohibiting an employer from terminating an employee in order to cover up its negligence. The plaintiff argues that, to the extent that such a public policy is not clearly established in statutes or case law, this court may and should judicially create such a public policy. For the reasons that follow, we agree with the defendants that the plaintiff has failed to identify a clearly articulated, important public policy against terminating an employee in order to cover up negligence, and we decline to judicially create such a general public policy in the circumstances of this case. Additionally, even if we assume that such a general public policy exists, the plaintiff has failed to establish that there is a genuine issue of material fact regarding whether her termination violated such a public policy because she offered no competent summary judgment evidence that the defendants were negligent and that the defendants terminated her employment in an attempt to hide that negligence. After the defendants argued in their motion for summary judgment that the plaintiff alleged no particular public policy that was violated by her termination, the plaintiff was required to establish that there existed an issue of material fact as to whether her termination violated an important public policy "clearly articulated" in state statutes, the state constitution, or prior case law. Thibodeau v. Design Group One Architects, LLC, supra, 260 Conn. at 701, 802 A.2d 731 ; see also Morris v. Hartford Courant Co., supra, 200 Conn. at 680, 513 A.2d 66 (public policy exception to at-will employment termination requires particular, explicit public policy); Armshaw v. Greenwich Hospital, supra, 134 Conn.App. at 138, 38 A.3d 188 (exception requires "explicit statutory mandate, constitutional provision or judicial determination" [emphasis added] ). The plaintiff, however, with the sole exception of § 19a-127n, has failed to cite to this court or to the trial court a single statute or any case law in support of the alleged public policy against terminating an employee to cover up negligence. We have already concluded that § 19a-127n does not bear the weight that the plaintiff places upon it. Accordingly, the plaintiff falls far short of creating a genuine issue of material fact concerning the violation of an important and clearly articulated public policy against terminating an employee to cover up negligence because she never established the existence of such a public policy. Additionally, because the plaintiff's argument contains no supporting law or analysis, the precise contours of her alleged public policy are unknown, and we decline to establish such a public policy in this case. Even if this court was inclined to establish such a public policy in this case, the plaintiff has failed to provide any competent summary judgment evidence to create a genuine issue of material fact that the defendants were negligent and that she was terminated to cover up their negligence. The plaintiff's allegation of negligence is supported by only speculation, not by evidence submitted in opposition to the motion for summary judgment. Although the plaintiff offered evidence of the defendants' conduct regarding the incident in question, she offered no evidence, such as an affidavit from an expert in emergency medicine, that would support a finding that the defendants' conduct was negligent or that the defendants would have been concerned about liability to the patient. Additionally, the plaintiff has not come forward with any evidence from which an inference may be drawn that her termination furthered, or was designed to further, the defendants' alleged goal of covering up medical malpractice. Nor has the plaintiff offered any evidence that the defendants took any steps intended to or that were in fact successful in hiding evidence of their alleged negligence from the particular patient involved in this case. Without such evidence, the causal connection between the plaintiff's termination and the defendants' alleged attempt to cover up potential negligence remains unclear. Although the plaintiff's employment was terminated, the plaintiff offers no explanation for how her termination would shield the defendants from liability in the event that they were sued for medical malpractice by the patient or the patient's estate. In sum, the plaintiff has failed to establish the existence of a genuine issue of material fact concerning whether, by terminating her employment, the defendants violated the public policy allegedly inherent in § 19a-127n in favor of the accurate reporting of adverse events or a more general public policy against terminating an employee to cover up negligence. Accordingly, we conclude that the trial court properly rendered summary judgment in favor of the defendants as to the plaintiff's count alleging that the defendants terminated her employment in violation of an important public policy. III The plaintiff next claims that the court improperly rendered summary judgment on her count alleging that the defendants breached the covenant of good faith and fair dealing by terminating her employment in bad faith. Specifically, she contends that the court improperly concluded that "the plaintiff . failed to establish the prima facie elements of a cause of action for breach of the covenant of good faith and fair dealing." because there was a genuine issue of material fact regarding the existence of an implied contract that prohibited her termination except for just cause. The defendants argue that the court was correct in its conclusion because there was no genuine issue of material fact regarding the existence of an implied contract between the parties. We agree with the defendants. Our Supreme Court has "recognize[d] an implied covenant of good faith and fair dealing in every contract without limitation.... Essentially it is a rule of construction designed to fulfill the reasonable expectations of the contracting parties as they presumably intended. The principle, therefore, cannot be applied to achieve a result contrary to the clearly expressed terms of a contract, unless, possibly, those terms are contrary to public policy." (Citations omitted.) Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 566-67, 479 A.2d 781 (1984). "Although we endorse the applicability of the good faith and fair dealing principle to employment contracts, its essence is the fulfillment of the reasonable expectations of the parties. Where employment is clearly terminable at will, a party cannot ordinarily be deemed to lack good faith in exercising this contractual right. Like other contract provisions, which are unenforceable when violative of public policy, the right to discharge at will is subject to the same restriction." Id., at 572, 479 A.2d 781. Accordingly, for the plaintiff to survive summary judgment on this claim in this case, she was required to establish a genuine issue of material fact regarding the existence of an implied employment contract. As previously discussed, the plaintiff failed to establish a genuine issue of material fact concerning whether the parties had an implied contract that prohibited her discharge without just cause. Accordingly, the court properly rendered summary judgment as to the plaintiff's count alleging breach of the covenant of good faith and fair dealing. IV Finally, the plaintiff claims that the court improperly granted the defendants' motion for summary judgment on her spoliation of evidence count because genuine issues of material fact existed with respect to her claim that the defendants withheld certain medical records and destroyed evidence that would have supported her cause of action. The defendants argue that the court properly determined that the plaintiff's spoliation claim failed because she did not provide any evidence that medical records had been destroyed or that the patient's pacer wire, which was replaced and discarded by the defendants' medical staff, had been destroyed in bad faith. We agree with the defendants that the court properly rendered summary judgment as to this count. The following additional facts and procedural history are relevant to this claim. On August 15, 2012, approximately two months after the incident at issue, the plaintiff sent a letter to the defendants, requesting that the pacer wire and the patient's medical records be preserved. In her revised complaint, as amended, the gravamen of the plaintiff's claim of spoliation was that the transvenous pacer wire that had been altered by the plaintiff was subsequently destroyed by the defendants. Thus, the plaintiff argued that she could not have an expert examine the pacer wire to dispute the defendants' position that she damaged the pacer wire when she altered it. The plaintiff further alleged that "[t]he medical record has glaring absences of documentation regarding the care of the patient that is the subject of the disciplinary action against the [p]laintiff." In their motion for summary judgment, as supplemented, the defendants represented that they had provided more than 900 pages of medical records and that the plaintiff had provided no documentation whatsoever to support her speculative claim that portions of the medical record had been destroyed, let alone intentionally destroyed. With respect to the pacer wire, the defendants argued that it had been disposed of shortly after the incident and that they were under no obligation to preserve an altered piece of medical equipment. In rendering summary judgment on this claim, the trial court concluded that "[although] the plaintiff has speculated that the defendants destroyed certain of the patient's medical records, she has presented no evidence that would tend to support that allegation. [Additionally, although the parties agree that the defendants destroyed the pacer wire] there is no evidence that the pacer wire was destroyed in bad faith...." "[T]he tort of intentional spoliation of evidence consists of the following essential elements: (1) the defendant's knowledge of a pending or impending civil action involving the plaintiff; (2) the defendant's destruction of evidence; (3) in bad faith, that is, with intent to deprive the plaintiff of his cause of action; (4) the plaintiff's inability to establish a prima facie case without the spoliated evidence; and (5) damages." (Emphasis added.) Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 244-45, 905 A.2d 1165 (2006). Our careful review of the record supports the court's determination that the plaintiff failed to establish a genuine issue of material fact regarding the destruction of the patient's medical record and the defendants' alleged bad faith in destroying the pacer wire. Regarding the pacer wire, the facts of this case are analogous to those in Surrells v. Belinkie, 95 Conn.App. 764, 898 A.2d 232 (2006). In Surrells, the defendant plastic surgeon performed breast surgery on the plaintiff. Id., at 765, 898 A.2d 232. Subsequently, the plaintiff noticed that her right breast was swollen and leaking fluid. The defendant determined that the plaintiff's right breast had become necrotic and performed a debridement, or surgical removal, of the necrotic tissue. Id., at 765-66, 898 A.2d 232. The defendant disposed of the necrotic tissue following the surgery and did not test it for the presence of an infection. Id., at 770, 898 A.2d 232. The plaintiff in Surrells filed a complaint against the defendant, alleging medical negligence on the ground that his negligence during the original breast surgery caused an infection in her right breast. Id., at 766, 898 A.2d 232. The plaintiff further alleged spoliation of the evidence because she could not have the necrotic tissue tested for an infection to establish that the defendant's actions had caused an infection to occur. Id., at 770, 898 A.2d 232. The trial court found that the plaintiff failed to establish that she developed an infection and declined to draw an adverse inference against the defendant on the ground that he did not intentionally destroy the necrotic tissue. On appeal, this court affirmed the trial court's decision, holding that "the spoliation of the plaintiff's breast tissue occurred before [the defendant] had any reason to believe that the tissue would be the subject of litigation. The plaintiff appears not to have offered the court any evidence that a plastic surgeon ordinarily would be expected to retain tissue samples from every patient in anticipation of future litigation.... The court consequently had no basis from which to infer that [the defendant] destroyed the plaintiff's breast tissue in order to avoid testing it for the presence of an infection." Id., at 771, 898 A.2d 232. Similarly, in the present case, the plaintiff failed to offer any evidence that the pacer wire was disposed of for any other purpose than that which medical waste is ordinarily disposed. Additionally, the August 15, 2012 letter requesting that the pacer wire be preserved was sent by the plaintiff to the defendants months after the incident in question, which was approximately when the pacer wire was disposed of. Thus, the plaintiff has failed to offer any evidence from which an inference could be drawn that the defendants disposed of the pacer wire in bad faith in order to deprive her of her cause of action. Regarding the allegedly destroyed medical records, the plaintiff not only has failed to offer any evidence that records were destroyed or altered, but she also has failed to identify specifically what was allegedly altered or destroyed. The plaintiff's assertion, contained only in her brief on appeal, is grounded in mere speculation. She argues "that [medical] staff wrote [in the patient's medical record] that the patient was in critical condition, was unstable and had heart failure, pulmonary edema, a heart attack, brain injury, kidney failure, liver failure and lacked cardiac pacing. It stretches the imagination that this is not documented in a 1000 page medical record except for a brief phrase here and there." The plaintiff, however, did not identify any specific portion of the patient's medical record that was missing or altered. Both parties admit in their pleadings-the plaintiff in her request to revise her amended complaint and the defendants in their motion for summary judgment as supplemented-that the defendants provided the plaintiff with the patient's medical records. Once this was established, the defendants met their burden of establishing that they did not destroy the medical records, and it was incumbent upon the plaintiff to identify specific portions of the medical record that were missing or appeared altered. In sum, the plaintiff failed to provide any competent summary judgment evidence that established a genuine issue of material fact regarding the defendants' bad faith in disposing of the pacer wire or the destruction or alteration of the patient's medical record. Accordingly, we conclude that the trial court properly rendered summary judgment as to the plaintiff's claim for spoliation of evidence. The judgment is affirmed. In this opinion WEST, J., concurred. In her complaint, the plaintiff identified Saint Francis Care, Inc., as the parent company of Saint Francis Hospital and Medical Center. The plaintiff's operative complaint consisted of six counts, including counts for negligent infliction of emotional distress and defamation. The trial court rendered summary judgment as to all six counts of her complaint. At oral argument before this court, the plaintiff stated that the trial court's determinations with respect to her claims of negligent infliction of emotional distress and defamation were not being challenged in this appeal. The plaintiff included other claims in her statement of issues, but she did not address them in her appellate brief or reply brief. "We are not required to review issues that have been improperly presented to this court through an inadequate brief." (Internal quotation marks omitted.) Burns v. Quinnipiac University, 120 Conn.App. 311, 323-24 n. 12, 991 A.2d 666, cert. denied, 297 Conn. 906, 995 A.2d 634 (2010). General Statutes § 19a-127n provides in relevant part: "(a) (1) For purposes of this section, an 'adverse event' means any event that is identified on the National Quality Forum's List of Serious Reportable Events or on a list compiled by the Commissioner of Public Health and adopted as regulations.... "(2) . (b) . [A] hospital or outpatient surgical facility shall report adverse events to the Department of Public Health on a form prescribed by the commissioner...." Rationales for the rescue doctrine include: "(1) The rescue doctrine . is shorthand for the idea that rescuers are to be anticipated and is a reflection of a societal value judgment that rescuers should not be barred from bringing suit for knowingly placing themselves in danger to undertake a rescue.... "(4) The rescue doctrine encourages efforts to save imperiled persons, by permitting a rescuer to recover for injuries sustained in a rescue attempt despite the rescuer's voluntary (though not reckless) decision to expose himself to danger.... "(5) The rescue doctrine recognizes that those who negligently imperil life or property may be liable not only to their victims but also to the rescuers." (Citations omitted.) 65A C.J.S., supra, at 47 n. 1. The dissent relies on Markley v. Dept. of Public Utility Control, 301 Conn. 56, 67 n. 12, 23 A.3d 668 (2011), which "assume[d], arguendo," that an equal protection claim was not abandoned on appeal, although it was not briefed, because the claim was discussed in the trial court and at oral argument on appeal. Markley, however, cannot be read as establishing a new rule regarding the abandonment of a claim or as overruling a long line of precedent regarding inadequate briefing. At best, Markley stands for the proposition that an appellate court retains discretion to consider a claim that has been inadequately briefed. We note that although the plaintiff alleged in her revised complaint that her termination violated public policy against covering up negligence, she did not cite to § 19a-127n (b) or allege that her termination violated the public policy allegedly inherent in § 19a-127n (b). The defendants, however, never filed a request to revise seeking "a more complete or particular statement of the allegations"; Practice Book § 10-35(1) ; or a motion to strike contesting the legal sufficiency of the allegation. Practice Book § 10-39. Therefore, we do not address the significance, if any, of the plaintiff's failure to cite to § 19a-127n in her complaint. Both the National Quality Forum's List of Serious Reportable Events and the list compiled by the Commissioner of Public Health are available online on the website of the Department of Public Health. Both lists appear to be periodically updated. The plaintiff failed to offer any competent summary judgment evidence that the defendants failed to report the alleged adverse event at issue. The record is silent as to whether the event at issue was reported to the department. Although such a public policy may exist, because the plaintiff's general argument contains no supporting law or analysis, the precise contours of such a public policy are unknown, and may differ from case to case depending upon various factors, including, but not limited to, the particular nature of the employer's business. We recognize that the plaintiff raised a related claim of spoliation of evidence because of the allegedly improper disposal of the pacing wire. That claim, however, was made in the specific context of her allegation that the pacing wire was destroyed by medical staff in order to defeat her employment claim, rather than in an attempt to avoid liability to the patient. Second, the plaintiff offered no evidence; see part IV of this opinion; that would suggest that the pacing wire was destroyed in bad faith or that it should not have been disposed of in the same, ordinary manner as any other medical waste. On appeal, the plaintiff also argues that the court improperly rendered summary judgment on this count because it improperly decided her count alleging wrongful termination in violation of an important public policy. The plaintiff, however, with respect to the count alleging a breach of the covenant of good faith and fair dealing, did not rely in the trial court on the public policies identified in her count alleging wrongful discharge in violation of an important public policy. Rather, in her revised complaint, the plaintiff alleged that because an implied contract existed, "[e]mployer personnel decisions are subject to a 'just cause' standard," and that "[b]y failing to perform a thorough investigation of the incident upon which the termination of the plaintiff is based, the covenant of good faith and fair dealing has been violated by the defendants." In her opposition to the motion for summary judgment, the plaintiff argued that the defendants were not entitled to summary judgment on this count because there was a genuine issue of material fact regarding the existence of an implied employment contract. Accordingly, we limit our review to only the arguments made before the trial court and decline to address the plaintiff's argument that the court improperly rendered summary judgment on this count because it improperly decided her count alleging wrongful termination in violation of an important public policy. See Gordon v. Gordon, supra, 148 Conn.App. at 65, 84 A.3d 923 ("[w]e have consistently declined to review claims based on a ground different from that raised in the trial court" [internal quotation marks omitted] ). We note that Surrells was decided prior to Rizzuto, which recognized the tort of intentional spoliation of evidence for the first time. At the time that Surrells was decided, the remedy for intentional spoliation of evidence "in a civil context, [was] that the trier of fact may draw an [adverse] inference from the intentional spoliation of evidence that the destroyed evidence would have been unfavorable to the party that destroyed it." (Internal quotation marks omitted.) Rizzuto v. Davidson Ladders, Inc., supra, 280 Conn. at 237, 905 A.2d 1165. The facts and analysis in Surrells, however, remain relevant in light of the similar analysis employed in both cases-in Surrells, the issue was intentional destruction of evidence, and in Rizzuto, the court held that the newly recognized tort of intentional spoliation of evidence requires the intent to deprive the plaintiff of his cause of action. In her appellate brief, the plaintiff cites to and includes a copy of the defendants' "Medical Device and Product Failure Reporting Policy." The plaintiff alleges that this policy was violated by the destruction of the pacer wire, and, thus, proves that the defendants destroyed it in bad faith. The plaintiff, however, did not offer this policy as evidence with her objection to the motion for summary judgment. Accordingly, we do not consider it. See Durkin Village Plainville, LLC v. Cunningham, 97 Conn.App. 640, 656, 905 A.2d 1256 (2006) (court does not abuse discretion by refusing to consider untimely summary judgment evidence); Practice Book § 17-45 (parties must file opposing affidavits and other summary judgment evidence prior to date of motion to be heard).

12486214

In re ELIJAH G.-R.

In re Elijah G.-R.

2016-07-07

No. 38623.

482

503

142 A.3d 482

142

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-09-08T21:16:17.237805+00:00

Fastcase

In re ELIJAH G.-R.

In re ELIJAH G.-R. No. 38623. Appellate Court of Connecticut. Argued May 16, 2016. Decided July 7, 2016. Jeffery R. Berry, for the appellant (respondent mother). Daniel M. Salton, 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). Don M. Hodgdon, New London, for the minor child. BEACH, PRESCOTT and BISHOP, 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 7, 2016, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

10795

66367

PRESCOTT, J. The respondent, Deborah G., appeals from the judgment of the trial court, rendered in favor of the petitioner, the Commissioner of Children and Families, terminating her parental rights with respect to her son, Elijah G.-R. On appeal, the respondent claims that the court improperly (1) failed to conduct a pretrial canvass of her in accordance with our Supreme Court's decision in In re Yasiel R., 317 Conn. 773, 120 A.3d 1188 (2015) ; (2) determined, in accordance with General Statutes § 17a-112 (j)(1), that the petitioner had proven by clear and convincing evidence that the Department of Children and Families (department) had made reasonable efforts to reunify her with Elijah; and (3) determined, in accordance with § 17a-112 (j)(2) and (k), that the petitioner had proven by clear and convincing evidence that termination of her parental rights was in the best interest of Elijah. We affirm the judgment of the trial court. The record reveals the following relevant facts, as set forth by the trial court in its oral memorandum of decision, and procedural history. "When Elijah was born, [the respondent] was residing in a drug treatment facility for mothers and children. [The respondent] had entered the facility shortly before Elijah was born, asserting that she had used crack cocaine during her pregnancy. [After Elijah was born, the petitioner] learned that [the respondent] had left the facility without permission and [had] used crack cocaine, thus subjecting herself and Elijah to discharge. "The [petitioner] imposed a [ninety-six] hour administrative hold on Elijah [who was approximately one month old] on January 22, 2013. On January 23, 2013, an [ex parte] order of temporary custody was sought by the [petitioner] and a neglect petition was filed. The order of temporary custody was granted by Judge Mack. "On February 1, 2013, [the respondent] appeared, was appointed counsel, and filed a written plea of nolo contendere, which was accepted, and Elijah was adjudicated neglected and committed to [the petitioner]...." (Footnote added.) "[The respondent was issued court-ordered specific steps for reunification, which] included in significant part that she cooperate and make progress in individual and parenting counseling, that she cooperate with substance abuse treatment, that she not use illegal drugs, that she obtain an adequate home and income, that she immediately advise [the department] of the status of her household especially with regard to the child's safety, and that she visit Elijah as often as permitted." On October 22, 2014, the petitioner filed a petition to terminate the parental rights of Elijah's father and the respondent. With respect to the respondent the petition sought termination on the ground that Elijah had been adjudicated neglected or uncared for, and the respondent had 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, she could assume a responsible position in his life. See General Statutes (Supp.2016) § 17a-112 (j)(3)(B)(i). A trial was conducted on the petition over the span of five days between May 28, and June 29, 2015. Both the petitioner and the respondent presented exhibits and called witnesses. The respondent testified on her own behalf. In total, thirty exhibits were presented, and nine witnesses were called. The court issued an oral decision on October 27, 2015, granting the petition to terminate the parental rights of the respondent and Elijah's father. With respect to the respondent, the court found that the petitioner had proven by clear and convincing evidence the ground for termination asserted in the petition. The court also found, pursuant to § 17a-112 (j)(1), that the department had made reasonable efforts to reunify Elijah with the respondent and that the respondent was unable or unwilling to benefit from reunification efforts. Having found that the ground for termination had been proven, the court considered the appropriate disposition of the child and made written findings regarding the best interest of the child pursuant to the criteria set forth in § 17a-112 (k). On the basis of these findings, the court determined by clear and convincing evidence that termination of the parental rights of the respondent and the father was in the best interest of Elijah. Accordingly, the court terminated the parental rights of both parents, and appointed the petitioner as Elijah's statutory parent for the purpose of securing his adoption by his foster parents. This appeal followed. Additional facts will be set forth as necessary. I The respondent first claims that the court improperly failed to conduct a pretrial canvass of her in accordance with our Supreme Court's decision in In re Yasiel R., supra, 317 Conn. 773, 120 A.3d 1188. Specifically, she alleges that the supervisory rule announced in In re Yasiel R. required the court to canvass her prior to the start of trial and that the timing of the court's canvass after the trial had ended, but before the court issued its decision, automatically requires the judgment terminating her parental rights to be reversed and a new trial ordered. The petitioner responds that the supervisory rule announced In re Yasiel R. should not be applied retroactively, and, even if it is retroactive, any error in conducting the canvass is subject to harmless error analysis, and no harm occurred as a result of the untimely canvass in this case. We agree in part with the petitioner. Specifically, we conclude that the respondent has failed to establish that she was harmed by the In re Yasiel R. canvass being conducted after the close of evidence but prior to the court rendering its decision, and, thus, she is not entitled to a new trial. The following additional facts and procedural history are necessary for our review of this claim. After trial, but prior to the trial court rendering its decision, our Supreme Court decided In re Yasiel R., supra, 317 Conn. 773, 120 A.3d 1188. In In re Yasiel R., which was released on August 18, 2015, less than two months after the completion of the respondent's trial, our Supreme Court held that, pursuant to the court's supervisory powers over the administration of justice, "public confidence in the integrity of the judicial system would be enhanced by a rule requiring a brief canvass of all parents immediately before a parental rights termination trial so as to ensure that the parents understand the trial process, their rights during the trial and the potential consequences." (Emphasis added.) Id., at 794, 120 A.3d 1188. In an attempt to comply with this new rule, the court requested the parties to return to court on August 31, 2015. The court informed the parties, including the respondent and her trial attorney, Ryan Ziolkowski, of our Supreme Court's recent holding in In re Yasiel R. and canvassed her as follows: "[O]ur Supreme Court recently issued a decision in the case of In re Yasiel R. The decision came out approximately two weeks ago, and in it, [the court] indicated that there was an advisement [it wishes] the trial court to provide prior to the commencement of all termination cases, and they applied it retroactively in the case of In re Yasiel R. "So, despite the fact that this case had concluded in terms of evidence, I have ordered it brought back in for the purpose of giving [the respondent] the following advisement. "There is pending a termination of parental rights petition, and you should be aware that if granted, it would result in the end of your legal relationship with Elijah. You would have no legal rights, no authority, and no responsibility for Elijah. You would no longer have any right to make any decisions of any kind affecting your son. "You would not be entitled to any state or federal benefits or entitlements that are based upon you being Elijah's mother. Elijah would be eligible to be adopted. You would not be able to obtain Elijah's birth certificate. "Unless and until the termination petition is granted, you remain Elijah's legal mother, responsible for his financial support and entitled to all of those benefits I just described. "Now, you have an attorney and your attorney would always assist you with any defenses you may have had to the [petitioner's] allegations. As you are or should be aware, you did not have to prove anything at trial. That [the petitioner] has the burden of proving [the] case by clear and convincing evidence. And during that trial, you had legal rights, including the right to confront witnesses and to have your lawyer cross-examine those witnesses to determine the credibility of their testimony. You had a right to object to the admission of any documents or exhibits including social studies or psychological reports. You had the right to bring in your own witnesses and you did produce witnesses to assist you in challenging the allegations. You had the right to testify, and that is to tell your side of the story, present your case if you wanted to. You did not have to. You chose to. "Now, I'm going to advise you as to an adverse inference even . though it's moot in this case, meaning it would not happen. "If you had not testified, the court could have drawn an adverse inference against you; that is the court could decide you did not testify because you felt your testimony would not be helpful to you or would be harmful to you. That would require notice to be [given to] you in advance that the court was considering or being asked to take an adverse inference and give you an opportunity to testify. As I said, it's a non-issue, but I have to advise you of it. It's a non-issue in this case because the [petitioner] didn't ask for an adverse inference and you did in fact testify. "So that-and as I told you, the entire burden of proof in the case was on the [petitioner]. "Now, have you understood your rights and your responsibilities as to the termination petition? "[The Respondent]: I believe I have. "The Court: Okay. "[The Respondent]: It's-there are things that I'm not sure about because I'm not in the court as often as some of you all are- "The Court: Okay. "[The Respondent]:-but-go ahead. "The Court: What-of what I just told you, was there anything- "[The Respondent]: Uh-huh. "The Court: -that you wish clarified or repeated? "[The Respondent]: Not at this time, Your Honor. "The Court: Okay. And you understood what I said? "[The Respondent]: Yes, sir. "The Court: Okay. Have you had enough time to talk to [your attorney]? "[The Respondent]: I-I don't believe so. I had a very brief meeting with him. "The Court: Okay. Well, if you don't mind waiting, then we'll give you time to talk to him." The court took a brief recess, during which the respondent spoke with Ziolkowski. After the recess, the parties again appeared in front of the court. The following colloquy occurred: "The Court: So . had I given you [the In re Yasiel R. ] advisement immediately prior to the start of trial- "[The Respondent]: Uh-huh. "The Court: -is there something that [you and your attorney] . would have done differently prior to June 29 [the start of trial]? Have you talked to your lawyer about that? "[The Respondent]: Yes, sir. "The Court: Okay, [Attorney Ziolkowski] was there any evidence that wasn't presented because [the respondent] didn't understand her rights, or was there anything that she is thinking could have or should have been done differently? "[Attorney Ziolkowski]: I personally don't believe so. We went forward to trial in a manner which I felt appropriate. There were certain witnesses we had. There were certain witnesses we didn't have based upon my opinion as to whether or not they would be helpful or had relevant information to the case. "She has several witnesses whom I would consider to be more character witnesses rather than professional service providers that she feels should have been or could be called as a result of her advisement this morning. "The Court: What about the advisement this morning? Would it have made those witnesses relevant? What was it that [the respondent] did not know that she's learned today that would call for reopening the evidence to allow somebody to come in? "[Attorney Ziolkowski]: I can't speak to that, Your Honor. I don't-I don't know. "[The Respondent]: This is someone you personally know that could speak on my behalf.... "The Court: I mean, it wasn't like you were sitting there and all of a sudden a light bulb went on [during the advisement] and you said, oh, my goodness, I just-I've just learned that I'm not-if my parental rights are terminated, I can't get my child's birth certificate as a result of which-now that changes something. I have somebody I wanted to testify.... [I]s there anything in that advisement that you were unaware of prior to the trial commencing? "[The Respondent]: There was.... I wasn't always able to-to get ahold of [my attorney]. "The Court: Okay. But that's-was there anything in today's advisement- "The Respondent: No. "The Court:-that changed your mind? "[The Respondent]: No, Your Honor." The respondent did not object to the timeliness of the In re Yasiel R. canvass. She also did not request a new trial or that evidence be reopened for the purpose of entering additional evidence. As this court recently summarized, "[o]ur Supreme Court exercised its supervisory powers in In re Yasiel R. to announce a new rule that, although not constitutionally required, it concluded was necessary to protect the perceived fairness of the judicial system with regard to termination of parental rights proceedings. In setting forth the parameters of its newly crafted canvass requirement, our Supreme Court stated: '[B]y exercising our supervisory authority in the present case, we are promoting public confidence in the process by ensuring that all parents involved in parental termination proceedings fully understand their right to participate and the consequences of the proceeding. We conclude, therefore, that it is proper to exercise our supervisory power in the present case and require that, in all termination proceedings, the trial court must canvass the respondent prior to the start of the trial. The canvass need not be lengthy as long as the court is convinced that the respondent fully understands his or her rights. In the canvass, the respondent should be advised of: (1) the nature of the termination of parental rights proceeding and the legal effect thereof if a judgment is entered terminating parental rights; (2) the respondent's right to defend against the accusations; (3) the respondent's right to confront and cross-examine witnesses; (4) the respondent's right to object to the admission of exhibits; (5) the respondent's right to present evidence opposing the allegations; (6) the respondent's right to representation by counsel; (7) the respondent's right to testify on his or her own behalf; and (8) if the respondent does not intend to testify, he or she should also be advised that if requested by the petitioner, or the court is so inclined, the court may take an adverse inference from his or her failure to testify, and explain the significance of that inference. Finally, the respondent should be advised that if he or she does not present any witnesses on his or her behalf, object to exhibits, or cross-examine witnesses, the court will decide the matter based upon the evidence presented during trial. The court should then inquire whether the respondent understands his or her rights and whether there are any questions. This canvass will ensure that the respondent is fully aware of his or her rights at the commencement of the trial. It will neither materially delay the termination proceeding nor unduly burden the state.' . In re Yasiel R., supra, 317 Conn. at 794-95, 120 A.3d 1188. The court stressed that the canvass was required in all parental termination cases, not just in those cases in which the respondent's attorney chooses not to contest evidence, as was the case in In re Yasiel R. " (Emphasis in original.) In re Leilah W., 166 Conn.App. 48, 60-62, 141 A.3d 1000 (2016). Subsequent to the decision in In re Yasiel R., this court decided In re Daniel N., 163 Conn.App. 322, 333-37, 135 A.3d 1260 (2016), petition for cert. filed (Conn. March 1, 2016) (No. 150299). In In re Daniel N., the respondent's parental rights were terminated by the trial court, but he was never canvassed in accordance with the supervisory rule announced in In re Yasiel R. On appeal to this court, the respondent claimed that he was entitled to a new trial because the supervisory rule announced in In re Yasiel R. must be applied retroactively. Id., at 333, 135 A.3d 1260. We agreed with the respondent that the holding in In re Yasiel R. applied retroactively, and ordered a new trial on the petition for termination of parental rights. Id., at 336-37, 135 A.3d 1260. This court held that a new trial in a termination proceeding was required if the parent never received a canvass regarding his or her rights. Id. Recently, this court distinguished between cases in which the In re Yasiel R. canvass never was given and cases in which the canvass was given after the close of evidence, but prior to the court rendering a decision in the matter. See In re Leilah W., supra, 166 Conn.App. at 64, 141 A.3d 1000. Although our Supreme Court's decision in In re Yasiel R. had been released approximately two months prior to the start of trial, the trial court in In re Leilah W. did not conduct the In re Yasiel R. canvass before beginning the trial. Id. After the close of evidence, the assistant attorney general representing the petitioner informed the court of this oversight. Id., at 53, 141 A.3d 1000. To remedy this oversight, the court requested the parties to return to court so that it could conduct the canvass. Id. After the canvass, the petitioner informed the court that he had no questions, and he did not object to the untimeliness of the canvass, or request a new trial or for evidence to be reopened. Id., at 55, 141 A.3d 1000. Approximately three weeks after the court conducted the In re Yasiel R. canvass, it issued its written memorandum of decision, granting the petition to terminate the respondent's parental rights. Id. On appeal to this court, the respondent in In re Leilah W. contended that the court's failure to conduct the In re Yasiel R. canvass prior to the start of trial automatically required a new trial. We did not agree: "[W]e are unconvinced under the facts of the present case that the trial court's failure strictly to comply with the Supreme Court's supervisory rule by canvassing the respondent after the close of evidence at the termination trial ended requires reversal of the judgment of termination and a new trial. We agree with the petitioner that . a trial court's failure to comply with a supervisory rule does not automatically require reversal and a new trial in all cases." Id., at 62, 141 A.3d 1000. We held that if the trial court fails to comply fully with the supervisory rule by not conducting the canvass before trial, but does conduct a later canvass before deciding the case, a new trial is not required if the respondent fails to establish that such noncompliance caused actual harm. Id., at 62-64, 141 A.3d 1000. In analyzing the respondent's claim in In re Leilah W., we emphasized that "[i]n canvassing the respondent after the close of evidence, the court fully advised the respondent of his rights as a parent in a termination proceeding, including potential consequences. The respondent acknowledged that he had been informed of these same rights prior to trial by his attorney. The court gave the respondent an opportunity to consult with his attorney after the canvass, and the respondent indicated that he had no questions. There was no request for any additional consultation time or a continuance. At no time did the respondent or his counsel voice any objection to the trial court regarding the timing of the canvass or its content. The respondent did not move for a mistrial, and never asked the court to reopen the evidence so that he could present any additional witnesses, raise challenges to the petitioner's exhibits or recall witnesses for cross-examination. Although the respondent argues on appeal that it was useless for the court to provide a canvass after the evidence was admitted and the witnesses questioned, he fails to explain how he would have proceeded differently had the court properly canvassed him prior to the start of trial." (Footnote omitted.) Id., at 64-65, 141 A.3d 1000. On the basis of these facts, we determined in In re Leilah W. that the respondent had failed to demonstrate that he was harmed by the trial court's failure to canvass him prior to the start of trial. Id., at 66, 141 A.3d 1000. Accordingly, we concluded that although the trial court did not conduct the In re Yasiel R. canvass prior to the start of trial, the respondent was not entitled to a new trial under the circumstances of the case. Id., at 65, 141 A.3d 1000. The facts of the present case are almost identical to those in In re Leilah W. In canvassing the respondent after the close of evidence, the court fully advised the respondent of her rights and the potential consequences of a termination of parental rights proceeding. Additionally, the court gave the respondent an opportunity to consult with her attorney after the canvass. There was no request for any additional consultation time or a continuance. The respondent did not voice any objection to the trial court regarding the timing of the canvass or its content. The respondent did not move for a mistrial, nor did she ask the court to reopen the evidence. Rather, her attorney specifically stated that even if the respondent had been canvassed prior to the start of trial, he would have done nothing differently during trial. There are two main differences between In re Leilah W. and the present case. First, in the present case, unlike in In re Leilah W., our Supreme Court's decision in In re Yasiel R. was not released until after the close of evidence. Thus, the trial court did not commit error by forgetting to conduct the In re Yasiel R. canvass. Rather, once the supervisory rule was announced, the court did everything in its power to comply with it, canvassing the respondent approximately two weeks later. The court's actions did not "[threaten] the integrity of the trial"; (internal quotation marks omitted) id., at 64, 141 A.3d 1000 ; but, rather, sought to effectuate the purpose underlying the supervisory rule-"promoting public confidence in the process by ensuring that all parents involved in parental termination proceedings fully understand their right to participate and the consequences of the proceeding." In re Yasiel R., supra, 317 Conn. at 794-95, 120 A.3d 1188. Second, in the present case, there was a prolonged colloquy between the court and the respondent following the In re Yasiel R. canvass. In In re Leilah W., the respondent merely stated that he had no questions in response to the canvass. In re Leilah W., supra, 166 Conn.App. at 55, 141 A.3d 1000. In her brief on appeal, the respondent in this case does not take fault with the substance of the canvass, nor does she contend that she did not understand the canvass. In her reply brief, however, she contends that the colloquy that occurred between herself, the court, and Ziolkowski after the canvass shows that she did not understand it. Contrary to the respondent's contention, this colloquy shows that the court made every effort to explain the purpose of the canvass to her, including her right to participate and the consequences of the proceeding. The respondent may have been confused as to the purpose of the canvass at first. The court, however, explained that the purpose of the canvass was not to question her attorney's strategic decision to call or not call certain witnesses, or to complain that her attorney did not contact her enough. The purpose of the In re Yasiel R. canvass in this case was to ascertain whether, upon being canvassed, the respondent would have conducted the trial differently because, prior to being canvassed, she did not know her rights or the consequences of the proceedings. After the court gave this explanation, the respondent stated that she now understood. Even if the respondent remained confused about the purpose of the In re Yasiel R. canvass, she has failed to explain on appeal how she was harmed by the timing of the canvass. She does not allege that if she had understood the canvass, she would have requested a new trial or the evidence reopened, nor has she explained what additional evidence she would have presented that would have made a difference in the outcome of the trial. She also does not allege that if the court had conducted the canvass prior to the start of trial, she would not have testified. Indeed, the court did canvass her, at least partially, on this topic before she testified. Rather, the respondent argues only that the timing of the In re Yasiel R. canvass after the end of trial, but prior to the court deciding the case, amounts to structural error, and, thus, if the canvass is not conducted prior to the start of trial, a new trial always is required. This contention, however, expressly was rejected by this court in In re Leilah W. On the basis of our review of the trial court's In re Yasiel R. canvass and the ensuing colloquy between the court and the respondent, we conclude that the court reasonably could have concluded that the respondent fully understood the trial process, the rights she had during the trial, and the potential consequences of the termination of her parental rights. Additionally, the respondent has failed to establish that she was harmed by the timing of the canvass. Accordingly, we reject the respondent's claim. II The respondent's remaining claims challenge the merits of the court's judgment terminating her parental rights. Specifically, she claims that the court improperly determined, in the adjudicatory phase, that the department had made reasonable efforts to reunify her with Elijah and, in the dispositional phase, that termination of her parental rights was in Elijah's best interest. We are not persuaded by either of the respondent's claims. Prior to reviewing each of the respondent's claims, we set forth the well established legal framework for deciding termination of parental rights petitions. "[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.... If the trial court determines that a statutory ground for termination exists, then it proceeds to the dispositional phase. During the dispositional phase, the trial court must determine whether termination is in the best interests of the child." (Citations omitted; footnotes omitted; internal quotation marks omitted.) In re Davonta V., 285 Conn. 483, 487, 940 A.2d 733 (2008). A Concerning the adjudicatory phase of the proceedings, the respondent claims that the court improperly found, pursuant to § 17a-112 (j)(1), that the department had made reasonable efforts to reunify Elijah with her. Specifically, she contends that if the department had provided her with a different visitation environment, Elijah's distress and anxiety during their visits would have been lessened and, thus, her relationship with Elijah would have improved. Because the respondent on appeal inadequately has challenged the court's alternative finding that she was unable or unwilling to benefit from the department's reunification efforts, there is no practical relief that we can afford her, and, thus, this claim is moot. "Mootness raises the issue of a court's subject matter jurisdiction and is therefore appropriately considered even when not raised by one of the parties.... Mootness is a question of justiciability that must be determined as a threshold matter because it implicates [a] court's subject matter jurisdiction.... We begin with the four part test for justiciability established in State v. Nardini, 187 Conn. 109, 445 A.2d 304 (1982).... Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable. 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.... [I]t 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.... In determining mootness, the dispositive question is whether a successful appeal would benefit the plaintiff or defendant in any way." (Citations omitted; emphasis omitted; internal quotation marks omitted.) In re Jorden R., 293 Conn. 539, 555-56, 979 A.2d 469 (2009). Our Supreme Court's decision in In re Jorden R. controls our determination of this claim. The court in In re Jorden R. clarified that "[a]s part of a termination of parental rights proceeding, § 17a-112 (j)(1) requires the department to prove by clear and convincing evidence that it has made reasonable efforts to locate the parent and to reunify the child with the parent, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts . "Because the two clauses are separated by the word unless, this statute plainly is written in the conjunctive. Accordingly, the department must prove either that it has made reasonable efforts to reunify or, alternatively, that the parent is unwilling or unable to benefit from reunification efforts. Section 17a-112 (j) clearly provides that the department is not required to prove both circumstances. Rather, either showing is sufficient to satisfy this statutory element." (Emphasis in original; internal quotation marks omitted.) Id., at 552-53, 979 A.2d 469. According to the court, to hold otherwise "would be contrary to the clear and unambiguous statutory language permitting the trial court to excuse such efforts [if] a parent is unwilling or unable to benefit from them." Id., at 554, 979 A.2d 469. Thus, the two findings are not dependent upon each other, and the department is not required to prove that it made reasonable efforts to reunify the family in order to prove that the respondent is unable or unwilling to benefit from such efforts. Accordingly, the court in In re Jorden R. held that in cases in which the trial court finds both that the department made reasonable efforts to reunify the family and that the respondent was unable or unwilling to benefit from such efforts, on appeal, both findings must be challenged successfully. See id. If only one finding is challenged, the claim is moot, because there is an alternative finding upon which to uphold the termination of parental rights, and, thus, no practical relief could flow from our review. Id., at 555, 979 A.2d 469. Relying on the decision in In re Jorden R., this court recently concluded that a claim challenging the trial court's finding that the department made reasonable efforts to reunify the family was moot because the respondent did not challenge the court's alternative finding that she was unable or unwilling to benefits from such efforts. In re Elijah C., 164 Conn.App. 518, 137 A.3d 944, cert. granted, 321 Conn. 917, 136 A.3d 1275 (2016). In In re Elijah C., the trial court terminated the respondent's parental rights after concluding that the department had made reasonable efforts to reunify the family and that the respondent was unable or unwilling to benefit from such efforts. Id., at 521, 137 A.3d 944. On appeal to this court, the respondent in In re Elijah C. challenged the trial court's finding that the department had made reasonable efforts to reunify her with her son. Id., at 525, 137 A.3d 944. The respondent's appellate brief in that case, however, contained only seven sentences challenging the court's finding that she was unable or unwilling to benefit from the department's reunification efforts, and it lacked any legal authority or analysis. Id., at 529, 137 A.3d 944. This court held that the respondent's challenge to the court's finding that she was unable or unwilling to benefit from the department's efforts was inadequately briefed. Id.; see also In re Kachainy C., 67 Conn.App. 401, 413, 787 A.2d 592 (2001) ("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 will not review claims absent law and analysis." [Internal quotation marks omitted.] ). Accordingly, we concluded in In re Elijah C., supra, 164 Conn.App. at 529, 137 A.3d 944 : "[O]n the basis of the controlling precedent from our Supreme Court, that the respondent's appeal from the court's judgment terminating her parental rights is moot because she failed to challenge the court's finding that she was unable to benefit from the reunification efforts." In the present case, the trial court found both that the department had made reasonable efforts to reunify the family and that the respondent was unable or unwilling to benefit from reunification efforts. On appeal, the respondent challenges the court's finding that she was unable or unwilling to benefit from the department's reunification efforts in two sentences in her appellate brief: "[The] respondent challenges the finding that [the department] made reasonable efforts to reunify her with her children. The other adjudicatory findings are dependent on this finding. In the absence of reasonable reunification efforts, [the] respondent cannot have been unable or unwilling to benefit from 'these efforts. ' " (Emphasis added.) The respondent does not offer any legal support or analysis for her contention that the court's finding that she was unable or unwilling to benefit from the department's reunification efforts is dependent on the court's finding that the department made reasonable efforts to reunify her with Elijah. Indeed, the respondent's contention is contravened by our Supreme Court's reasoning in In re Jorden R., that these grounds are not dependent on each other. The respondent, in her brief, relies on mere abstract assertion in challenging the court's finding that she was unable or unwilling to benefit from the department's reunification efforts. As in In re Elijah C., the respondent here has briefed inadequately any challenge to the court's finding that she was unable or unwilling to benefit from reunification efforts. Therefore, we conclude that the respondent's claim is moot. B Concerning the dispositional phase of the proceedings, the respondent claims that the court improperly determined, pursuant to § 17a-112 (j)(2), that termination of her parental rights was in the best interest of Elijah. Specifically, she contends that the court improperly weighed the factors listed in § 17a-112 (k) in determining whether termination of the respondent's parental rights was in Elijah's best interest. In particular, she sets forth three arguments. First, she argues that the department did not make reasonable efforts to reunify her with Elijah. Specifically, she alleges that although she agrees with the court's finding that visits with her caused Elijah distress, his distress was not caused by her but by the environment of the visitation room at the department's facility in which visits took place, and, thus, the department should have provided an alternative environment for their visits. Second, she argues that the court placed too much weight on the wishes of Elijah, who was two years old at the time of trial. Third, she argues that the court's finding that she had not been prevented from maintaining a meaningful relationship with Elijah was clearly erroneous because Elijah's foster family did not prepare him for visits with her, and they did not have recent photographs of her in their home. We are not persuaded. Prior to setting forth the facts underlying the respondent's claim, we emphasize that "[a]lthough [§ 17a-112 (k) ] mandated that the trial court make written findings . § 17a-112 contain[s] nothing to indicate that any such finding was a prerequisite to the termination of parental rights. Thus . the factors to be considered under [that statute serve] only to guide the trial court in making its ultimate decision whether to grant the termination petition.... "[T]he fact that the legislature [had interpolated] objective guidelines into the open-ended fact-oriented statutes which govern [parental termination] disputes . should not be construed as a predetermined weighing of evidence . by the legislature. [If] . the record reveals that the trial court's ultimate conclusions [regarding termination of parental rights] are supported by clear and convincing evidence, we will not reach an opposite conclusion on the basis of any one segment of the many factors considered in a termination proceeding.... "Indeed . [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.... [A]lthough a trial court shall consider and make written findings regarding the factors enumerated in § 17a-112 (k), a trial court's determination of the best interests of a child will not be overturned on the basis of one factor if that determination is otherwise factually supported and legally sound." (Citations omitted; internal quotation marks omitted.) In re Nevaeh W., 317 Conn. 723, 739-40, 120 A.3d 1177 (2015). The following additional facts are relevant to our review of the respondent's claim. In its oral memorandum of decision addressing the dispositional phase, the court stated that it "[had] considered the seven statutory factors [pursuant to § 17a-112 (k) ] and made its finding in writing on the Judicial Branch approved form." On the Judicial Branch approved form, the court found that (1) "[the respondent was] offered timely services, including visitation, substance abuse evaluation, and treatment"; (2) "[r]easonable efforts were made by [the department]"; (3) "[s]pecific steps were issued by the [c]ourt [to the respondent] . [and the] degree of compliance by [the respondent] is reviewed in the adjudicatory discussion"; (4) "[Elijah] knows [the respondent] and has demonstrated affection toward her, but most visits with [the respondent] are a cause of anxiety and distress for Elijah [and he] is closely bonded to his relative foster parents"; (5) "Elijah [at the time of trial was] two years old"; (6) "[the respondent] has visited with Elijah faithfully, without improving their relationship [and the respondent] has not addressed her mental health needs in a consistent, productive manner"; (7) "[n]o . prevention [to the respondent's maintenance of a meaningful relationship with Elijah] was made." Although the court did not make any subordinate factual findings regarding what reasonable efforts the department made, on the basis of our review of the record, the court reasonably could have found that the department provided the respondent with referrals to outpatient mental health services, case management, supervised visitation, integrative parenting services, outpatient substance abuse evaluation and random drug testing, referrals and information regarding rent subsidies and public housing programs, and transportation assistance. Additionally, as part of supervised visitation, the department provided the respondent with the opportunity to take Elijah to get a haircut, to play with him at the park, and to attend his doctor's appointments. Visitations at the park ceased after Elijah fell from a piece of playground equipment. Additionally, the department was unwilling to allow at-home visitations. According to Heidi Reinan, a permanency social worker for the department, the department's decision not to allow at-home visitations was influenced heavily by the respondent's continued relationship with Elijah's father. Although the respondent's court-ordered specific steps did not require her to end all contact with Elijah's father, the department and the court had told the respondent on several occasions to end completely all contact with the father because of the threat he posed to her sobriety. The respondent, however, lied to the department regarding whether Elijah's father lived at the respondent's residence for a period of time and that she remained in contact with him. Thus, the department was unwilling to bring Elijah to the respondent's residence on the ground that it could not trust the respondent to keep the father away from both herself and Elijah. In addition to the services provided by the department, the respondent was afforded weekly telephone calls to the foster family's home so that she could speak with Elijah. A journal also was utilized to convey information between the foster family and the respondent concerning Elijah. The foster family even permitted the respondent to attend Christmas at the foster family's home with Elijah. The foster family, however, did not prepare Elijah in advance for his visits with the respondent to avoid him becoming anxious about the visits, and they did not have any recent photographs of the respondent in their home. After stating that it had considered the seven factors listed in § 17a-112 (k), the court's oral memorandum of decision further found, in determining Elijah's best interest, that "Elijah has been becoming increasingly distressed by his exposure to [the respondent]. He is in . foster care [with relatives]. He is stable there. He is doing well. They are willing to adopt, and Elijah has been placed with them for almost his entire life. He considers his foster mother and his foster father as his psychological parents. He calls his foster mother auntie. He calls his foster father dad. And in terms that have been explained explicitly to [the respondent] to be inappropriate, [she] corrects him every time and says he is not your father, he is your uncle, just causing distress to the child. "When the child is visiting with [the respondent], he is routinely asking to return to his foster parents. He looks to them for comfort, for solace. He finds permanency in their home. He finds stability in their home. He is thriving in their home. He does not want to have anything to do with [the respondent]. His best interest as advocated for by his attorney and [guardian ad litem] are termination of parental rights and adoption. "The court [thus found] by clear and convincing evidence that the department [had] established [termination of parental rights] to be in Elijah's best interest. Therefore, given the totality of the circumstances and the finding of the court as to the adjudicatory issues and the best interest of Elijah, the court [ordered] that the parental rights of [the respondent] to [her] son Elijah G.R. are hereby terminated." Before addressing the respondent's arguments regarding the court's best interest of the child determination, we begin with our standard of review and guiding legal principles. "During the dispositional phase, the trial court must determine whether termination is in the best interests of the child.... The best interest determination also must be supported by clear and convincing evidence.... "It is axiomatic that a trial court's factual findings are accorded great deference. Accordingly, an 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. . A finding is clearly erroneous when either there is no evidence in the record to support it, or the reviewing court is left with the definite and firm conviction that a mistake has been made." (Citations omitted; footnotes altered; internal quotation marks omitted.) In re Davonta V., supra, 285 Conn. at 487-88, 940 A.2d 733. "[E]very reasonable presumption is made in favor of the trial court's ruling." (Internal quotation marks omitted.) Id., at 488, 940 A.2d 733. Additionally, in reviewing the court's findings under the dispositional phase of the proceedings, it is appropriate to read the trial court's opinion as a whole, including its findings in the adjudicatory phase. In re Nevaeh W., supra, 317 Conn. at 733-34, 120 A.3d 1177. In deciding whether termination of parental rights is in the best interest of the child, the court shall consider and make written findings concerning the seven factors listed in § 17a-112 (k), although these factors "serve simply as guidelines to the court and are not statutory prerequisites that need to be proven before termination can be ordered.... We have held . that the petitioner is not required to prove each of the seven factors by clear and convincing evidence." (Emphasis omitted; internal quotation marks omitted.) In re Nioshka A. N., 161 Conn.App. 627, 635-36, 128 A.3d 619, cert. denied, 320 Conn. 912, 128 A.3d 955 (2015). In considering the minor child's emotional ties under § 17a-112 (k)(4), it is "appropriate for the trial court to consider the [child's] emotional ties to the pre-adoptive foster family in considering whether termination of the respondent's parental rights [is] in the children's best interest." In re Nevaeh W., supra, 317 Conn. at 731, 120 A.3d 1177. In evaluating the minor child's emotional ties to the foster family, the court may consider the wishes of the minor child regarding with whom the child desires to live. See In re Victoria B., 79 Conn.App. 245, 261, 829 A.2d 855 (2003) ("the court [properly] considered [the] express wish and desire [of the minor child, who was five years old] to live with the foster parents and not with the respondent"). In addition to considering the seven factors listed in § 17a-112 (k), "[t]he best interests of the child include the child's interests in sustained growth, development, well-being, and continuity and stability of its environment." (Internal quotation marks omitted.) In re Rafael S., 125 Conn.App. 605, 611, 9 A.3d 417 (2010). Furthermore, "in the dispositional stage, it is appropriate to consider the importance of permanency in children's lives." In re Nevaeh W., supra, 317 Conn. at 731, 120 A.3d 1177. We begin our analysis by addressing the respondent's three primary arguments concerning this claim. Concerning the court's finding that the department had made reasonable reunification efforts under § 17a-112 (k)(2), the evidence in the record does not support the respondent's contention that the department did not make reasonable efforts because she and Elijah were confined to a small, windowless room at the department's facility during visitation. Rather, the court reasonably could have found that the department, at least initially, provided diverse environments for visitation: a park, a barber shop, the doctor's office. Subsequent limitations on the nature of the visitations were, in part, reasonable responses to the respondent's actions. For example, although the record is somewhat unclear, the court reasonably could have inferred that the department prohibited additional visitations at the park after Elijah fell from a piece of playground equipment when the respondent was not adequately supervising him. Additionally, the court reasonably could have found that the department's unwillingness to allow at-home visitation was justified by the respondent's continued contact, which she lied about, with Elijah's father. Furthermore, unlike the adjudicatory phase of the proceedings, in which the petitioner must prove by clear and convincing evidence that the department made reasonable reunification efforts; In re Oreoluwa O., 321 Conn. 523, 532, 139 A.3d 674 (2016) ; in the dispositional phase of the proceedings, whether the department made reasonable reunification efforts is just one of the many factors that the court must consider, and it does not have to be proven by clear and convincing evidence. See In re Nioshka A. N., supra, 161 Conn.App. at 636, 128 A.3d 619 ("the petitioner is not required to prove each of the seven factors by clear and convincing evidence" [internal quotation marks omitted] ). Thus, to the extent that the department should have provided alternative visitation environments, this was only one factor out of many that the court weighed in determining the best interest of Elijah. Concerning the court's reliance on the wishes of Elijah, the respondent misapprehends the court's findings. Although the trial court may consider the wishes of the minor child concerning with whom he or she would prefer to live, the court did not do so in this case. Elijah never testified regarding with whom he wished to live, and the court did not make any findings concerning his wishes. The court, however, did rely heavily on Elijah's emotional ties to his foster parents and his lack of emotional ties to the respondent. See General Statutes § 17a-112 (k)(4). In particular, the court relied on evidence showing that Elijah had thrived with the foster family and viewed his foster parents as his psychological parents. Additionally, the court relied upon testimony from the foster mother and the department's employees, who testified that Elijah became distressed around the respondent. Although the respondent offers an alternative, plausible explanation for Elijah's distress-that the environment of the visitation room at the department's facility, and not the respondent, distressed him-we will not second guess the court's finding that Elijah had limited emotional ties to the respondent because the court reasonably could have inferred that Elijah's distress was caused by the respondent. See In re Davonta V., supra, 285 Conn. at 488, 940 A.2d 733 ("[w]e do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached" [internal quotation marks omitted] ). Thus, contrary to the respondent's contention that the court improperly relied upon Elijah's wishes, pursuant to § 17a-112 (k)(4), the court, in determining Elijah's best interest, properly relied upon evidence showing his strong emotional ties to his foster family and his lack of an emotional tie to the respondent. Concerning the respondent's final argument, the court's finding that the respondent had not been prevented from maintaining a meaningful relationship with Elijah by the unreasonable acts or conduct of any person is supported by the record. Although the foster family arguably may have done more to prepare Elijah for visits with the respondent and may have initiated more personal contact with the respondent, the record reflects that the foster family did not create an impediment to the respondent maintaining a relationship with Elijah. Rather, the record establishes that the foster family made efforts to facilitate communication between the respondent and Elijah-weekly telephone calls, conveying information about Elijah via a journal, and allowing the respondent to attend Christmas at the foster family's home. Additionally, assuming that the foster family's actions did, to some extent, impede the respondent's ability to maintain a relationship with Elijah, the court was entitled to weigh the significance of this impediment in relation to the other factors that it considered, and we will defer to the weight that the trial court afforded each factor. Even if we were persuaded by the respondent's arguments, the court's determination that termination of the respondent's parental rights was in Elijah's best interest is supported by the remaining factors set forth in § 17a-112 (k), by Elijah's need for stability and permanency, and by the court's determination that the respondent had failed to reach a degree of rehabilitation sufficient to satisfy the statute. In addition to finding that Elijah had strong emotional ties to his foster family under § 17a-112 (k)(4), the court emphasized Elijah's need for stability and permanency, which weighed in favor of finding that termination of the respondent's parental rights was in Elijah's best interest. Furthermore, the court found, under § 17a-112 (k)(3), that the respondent had failed to comply sufficiently with the court-issued specific steps. The court particularly noted her lack of compliance with the court-ordered counseling, her disengagement with the department's parenting counselors, and her continued relationship with Elijah's father. This finding is not challenged on appeal. This court previously has held that a trial court's determination that termination of parental rights is in the minor child's best interest is not clearly erroneous if "by clear and convincing evidence . the [petitioner has] shown that the respondent . failed to reach a degree of rehabilitation sufficient to satisfy the statute, coupled with the need for permanency in the [child's life]...." In re Jermaine S., 86 Conn.App. 819, 836, 863 A.2d 720, cert. denied, 273 Conn. 938, 875 A.2d 43 (2005). The trial court in this case found both that the respondent had failed to reach a degree of rehabilitation sufficient to satisfy the statute and that Elijah found stability and permanence with his foster family. On the basis of these findings, the court's determination that termination of parental rights was in Elijah's best interest is not clearly erroneous. Moreover, it is unclear what weight the court afforded each of the seven factors listed in § 17a-112 (k). The court, however, determined that the seven statutory factors weighed in favor of termination of the respondent's parental rights. On the basis of the court's oral memorandum of decision, it may be inferred that it weighed heavily Elijah's need for stability and permanency, as well his emotional attachment to his foster parents, with whom he has lived for almost his entire life. Although the trial court's oral memorandum of decision was not a model of clarity or specificity, it considered the seven statutory factors in relation to Elijah's best interest. We will not reweigh these factors, but, rather, we defer to the trial court's judgment. In sum, we conclude that the trial court, after weighing the appropriate factors, did not improperly conclude by clear and convincing evidence that termination of the respondent's parental rights was in the best interest of Elijah. Accordingly, we affirm the judgment of the trial court. The judgment is affirmed. In this opinion the other judges concurred. In the same proceeding, the court also terminated the parental rights of Elijah's father, William R. Because he has not appealed from that judgment, we refer to Deborah G. as the respondent throughout this opinion. On January 25, 2013, Elijah was placed with his maternal aunt and uncle, who have served as his foster parents. He has resided with them throughout these proceedings and his foster parents intend to adopt him upon the termination of the respondent's parental rights. General Statutes (Supp.2016) § 17a-112 (j) provides in relevant part: "The Superior Court . may grant a petition filed pursuant to this section 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, abused or uncared for in a prior proceeding . 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...." See In re Elvin G., 310 Conn. 485, 502, 78 A.3d 797 (2013) ("some portion of the language following clause (ii) is intended to modify clause (i) as well as clause (ii)"). We note that § 17a-112 (j)(3)(B) was amended in 2015; see Public Acts 2015, No. 15-159, § 1; however, the amendment is not relevant to this appeal. For convenience, references herein are to the revision codified in the 2016 supplement to the General Statutes. Prior to testifying at trial, the court conducted a partial canvass of the respondent regarding her election to testify, including the potential consequences of testifying. In particular, the court informed the respondent of her right to testify, but that she was not required to testify. The court also told her that it was the petitioner's burden to prove its claims by clear and convincing evidence and that she was not required to prove anything. The court questioned the respondent regarding whether she had sufficient time to consult with her attorney about her decision to testify. The respondent stated that she was satisfied with her attorney's advice and that she voluntarily had determined to testify. She further agreed that she was aware of the benefits and burden of testifying. The court, however, did not question the respondent specifically about whether she was aware that it could draw an adverse inference against her if she did not testify. Because she ultimately decided to testify, no adverse inference could be or was drawn against her. We note that the attorney for the minor child filed a brief pursuant to Practice Book § 79a-6 (c). The brief adopted the arguments submitted by the petitioner with respect to the respondent's In re Yasiel R. claim, but separately briefed and opposed the respondent's claims concerning the department's reasonable efforts to reunify the family and the best interest of the child. We note that the question of whether the supervisory rule announced in In re Yasiel R. should be applied to other, then pending cases is before our Supreme Court in In re Egypt E., SC 19643 and SC 19644. Additionally, the petitioner's petition for certification to appeal from this court's decision in In re Daniel N. is pending before our Supreme Court. General Statutes § 17a-112 (j) provides in relevant part: "The Superior Court . may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that (1) the [department] has made reasonable efforts to locate the parent and to reunify the child with the parent . unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts...." General Statutes § 17a-112 (j) provides in relevant part: "The Superior Court . may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that . (2) termination is in the best interest of the child...." General Statutes § 17a-112 (k) provides: "Except in the case where termination 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] has made reasonable efforts to reunite the family pursuant to the federal Adoption Assistance and Child Welfare Act of 1980, as amended; (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." In the portion of its decision addressing the adjudicatory phase of the trial, the court made the following findings in regard to the respondent's compliance with the court-ordered specific steps: "She has done well with some of these steps and [has been] noncompliant [with] or addressed others inadequately. "Most notably, [the respondent] has maintained her sobriety.... [The respondent] has also maintained steady employment.... As to housing, [the respondent's] compliance has been noncompliant in part.... [The respondent] denied to the [department] that [the child's] father was residing with [her].... [The respondent] was told to continue with individual counseling and did not do so for lengthy periods of time.... [She] has avoided the court-ordered counseling for a long time. She is in need of long-term counseling, and the court has no reason to believe that [she] would cooperate assiduously and fully with the court's orders and expectations. "More troubling is that [the respondent] has a diagnosis of cocaine dependence in remission, and she is involved with [the] father, whom the department asserts has a decade long history of crack cocaine abuse.... "The court specifically told [the respondent that] she was to have nothing to do with him and that she had to totally separate from him as she was enmeshed with him in a manner that was dangerous to her own recovery and her desire to reunify with her son.... Finally and most important, [the respondent's] parenting has been an issue throughout.... [She] has been visiting faithfully for years and making no progress. Two separate parenting educators and visitation supervisors testified, and hundreds of pages of observations and reports were put into evidence. Those reports establish near perfect attendance and a strong desire to bond with Elijah. They do not show a strengthening of the parent-child bond. "Most reports indicate [the respondent's] inability to read Elijah's cues and her attempts to force unwanted attention upon Elijah. They also show [her] inability or unwillingness to follow parenting directions...." The respondent argues that the proper standard of review for this court to apply to this claim is the standard clarified by our Supreme Court in In re Shane M., 318 Conn. 568, 587-88, 122 A.3d 1247 (2015), In re Gabriella A., 319 Conn. 775, 789-90, 127 A.3d 948 (2015), and In re Oreoluwa O., 321 Conn. 523, 533, 139 A.3d 674 (2016). In those cases, the court held that "[w]e review the trial court's subordinate factual findings for clear error.... We review the trial court's ultimate determination that a parent has failed to achieve sufficient rehabilitation [or that a parent is unable to benefit from reunification services or that the department made reasonable reunification efforts] for evidentiary sufficiency...." (Internal quotation marks omitted.) In re Oreoluwa O., supra, at 533, 139 A.3d 674 ; see In re Gabriella A., supra, at 789, 127 A.3d 948 ; In re Shane M., supra, at 587-88, 122 A.3d 1247. As we have previously stated, "we are disinclined to reverse decades of precedent from our Supreme Court by declaring that the best interest ground set forth in § 17a-112 (j)(2) is subject to similar analysis." 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). Additionally, we need not decide this issue because the evidence in this case supports the trial court's judgment under both standards. "Otherwise stated, 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; see In re Shane M., supra, at 588, 122 A.3d 1247 ; 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." In re Nioshka A. N., supra, at 637 n. 9, 128 A.3d 619

12500425

IN RE KATHERINE H. In re James H.

In re Katherine H.

2018-07-06

AC 41248, AC 41249

537

542

192 A.3d 537

192

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-09-08T21:16:17.237805+00:00

Fastcase

IN RE KATHERINE H.

IN RE KATHERINE H. In re James H. AC 41248, AC 41249 Appellate Court of Connecticut. Argued June 1, 2018 Officially released July 6, 2018 Ann C., self-represented, the appellant (respondent mother). Christopher L. Aker, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Benjamin Zivyon, assistant attorney general, for the appellee (petitioner). Ellin M. Grenger, for the minor children. 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 6, 2018, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

2325

14793

PER CURIAM. In these consolidated appeals, the self-represented respondent mother, Ann C., appeals from the judgments of the trial court finding her minor children, Katherine H. and James H., neglected and committing them to the custody of the petitioner, the Commissioner of Children and Families. On appeal, the respondent essentially takes issue with the manner in which the Department of Children and Families (department) performed its responsibilities and the court's factual findings. We affirm the judgments of the trial court. The following facts and procedural history are relevant to our resolution of the respondent's appeals. The department became involved with the respondent on November 20, 2015, after it received a Careline call from a clinician who reported that the respondent was the caretaker of two young children and that she presented a risk of harm to them given her psychotic thoughts, delusional thinking and consumption of large quantities of wine. The respondent had been employed by Electric Boat Division of General Dynamics Corporation (Electric Boat), but in May, 2016, the yard psychiatrist found her to be unfit for duty. Electric Boat referred her for a psychiatric evaluation, but the evaluation never took place given the terms the respondent wanted placed on the conditions of the evaluation. Between November, 2015, and November 30, 2016, the department made efforts for the respondent to undergo a psychiatric evaluation, to enter psychotherapy, and to comply with medication management. Its efforts were unsuccessful. Therapists to whom the respondent was referred expressed concern about her delusional thinking and consumption of alcohol. The court, Hon. Michael A. Mack , judge trial referee, found that the respondent does not acknowledge that she has mental health issues or that she needs help. On August 5, 2016, the petitioner filed the neglect petitions at issue. Before the neglect petitions were adjudicated, however, on December 1, 2016, the petitioner filed ex parte motions for orders of temporary custody of the children. On that same day, the court, Driscoll , J. , granted the ex parte motions for temporary custody. A contested hearing on the motions for temporary custody was held on December 14, 2016. The trial court, Hon. Francis J. Foley III , judge trial referee, issued a memorandum of decision on December 16, 2016, in which it sustained the orders of temporary custody. In his decision, Judge Foley disagreed with the respondent's contention that the court was required to find predictive neglect in order to sustain the orders of temporary custody. He also made detailed factual findings as to the department's efforts on behalf of the respondent, as well as the findings and recommendations of therapeutic providers regarding the respondent's delusional thinking, alcohol consumption, and the risk she posed to the children. The court found that the respondent was aware that she risked losing custody of the children. The court found that the children were in immediate physical danger due to the respondent's delusional disorder and abuse of alcohol and concluded that their removal from the respondent's care was necessary to ensure their safety. The respondent did not appeal from the judgments granting the motions for temporary custody. On December 5, 2017, following a contested hearing on the neglect petitions, Hon. Michael A. Mack , judge trial referee, found "by a fair preponderance of the evidence that the children had been permitted to live under conditions, circumstances or associations injurious to their well-being and that they were being denied proper care and attention, physically, educationally, emotionally or morally. As noted by Judge Foley . the court is not required to, nor should it, wait until an actual catastrophe occurs involving the children or either of them. There is significant evidence that under the circumstances before the [orders of temporary custody], it was only a question of time before an act or actual happening of neglect occurred. Living in the presence of actual delusional thinking and acting is itself a condition of negligence and/or neglect. No credible evidence was offered demonstrating that there has been a significant improvement in [the respondent's] situation." Moreover, the respondent did not acknowledge that she had mental health issues or that she needed help. Judge Mack also found pursuant to the evidence presented by the petitioner that "[o]n May 24, 2016, [the respondent's] therapist contacted the Careline to report that [the respondent] was experiencing psychotic thoughts. The therapist felt that [the respondent] having episodic psychotic delusional thinking might be a problem for the children, as she was the only caregiver for the children, and her warped thinking could create a situation that may be dangerous for the children. "On May 25, 2016, [the department's] Regional Resource [licensed clinical social worker], Lorraine Fleury, was consulted and completed an assessment of [the respondent's] mental health status. She found that [the respondent] . had multiple delusions that are paranoid and persecutory in nature and that [the respondent] presents as anxious and hypervigilant. Additionally . Fleury assessed [the respondent] to be almost completely consumed and distracted by numerous paranoid and persecutory delusions, which prevents her from attending to her children's emotional and, eventually, their physical needs." (Internal quotation marks omitted.) The court found by a fair preponderance of the evidence that the children have been permitted to live under conditions, circumstances or associations injurious to their well-being and that they were being denied proper care and attention, physically, educationally, emotionally or morally. In other words, it found that the children had been neglected prior to the entry of the ex parte orders of temporary custody in favor of the petitioner. "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. . We cannot retry the facts or pass on the credibility of the witnesses.... 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.) In re Michael L. , 56 Conn. App. 688, 692-93, 745 A.2d 847 (2000). On appeal, the respondent has not demonstrated to us that any of the court's findings are clearly erroneous. She also has not demonstrated that the court abused its discretion by committing the children to the custody of the petitioner in the interest of the children's "sustained growth, development, well-being, and in the continuity and stability of [their] environment." (Internal quotation marks omitted.) In re Diamond J. , 121 Conn. App. 392, 397, 996 A.2d 296, cert. denied, 297 Conn. 927, 998 A.2d 1193 (2010). The judgments are affirmed. The court also granted the neglect petitions with respect to the respondent father, Aaron H., who resides in the state of Washington. He has taken no position with respect to the present appeals and asked to be excused from filing a brief and attending oral argument. In this opinion, we refer to the respondent mother as the respondent. Counsel for the children has adopted the brief filed by the petitioner. On appeal, the respondent claims that (1) it is the responsibility of the department to follow the practices and procedures of state and federal governments, as well as its own policies, (2) the department's responsibility to employ reasonable efforts for the reunification of families is in question, (3) psychiatric evaluations submitted by the respondent and the petitioner vary significantly enough to shed doubt on the elevated nature of the findings of David Mantell, a forensic psychologist, (4) the law references used by the court, Hon. Francis J. Foley III , judge trial referee, and the court, Hon. Michael A. Mack , judge trial referee, are not valid as they cannot be applied to the present case, (5) the respondent's request to record psychiatric evaluations displays a rational logic to preserve her right to accountability, (6) the validity of the allegations made in regard to the educational, health, and general care of the children are invalid, (7) the accusation that the respondent is delusional due to her belief of potential privacy intrusion is unrealistic, and (8) due diligence was not exhibited by the legal representatives of the respondent, either retained or assigned. There is no record regarding the respondent's claim that the representation of her counsel was deficient. We, therefore, decline to review it. See Practice Book § 61-10(a). Careline is a department telephone service that mandatory reporters and others may call to report suspected child abuse or neglect. The neglect petitions were filed pursuant to General Statutes § 46b-120 (6) (B) and (C). The petitions alleged the following jurisdictional facts: the respondent is experiencing psychotic thoughts and delusional thinking, her nurse practitioner states that the respondent does not believe that she is delusional and is only complying with treatment to get the department to close the case, the respondent admitted to drinking a "magnum" of wine at a time, and the respondent has not cooperated with a psychiatric evaluation. The petitions alleged that the children were neglected for reasons other than being impoverished in that they were being denied care and attention, physically, educationally, emotionally or morally, or were being permitted to live under conditions, circumstances or associations injurious to their well-being. The petitions were accompanied by an affidavit in which the respondent's social worker, Michael Earley, averred in part that "the children are in need of a stable and competent caregiver who can discern between what is real and what is imagined. It has been reported to the [d]epartment that [the respondent] is isolating her children from their maternal grandparents with whom they share the residence . which inhibits the full compliance with the safety plan to ensure the children's well-being and safety.... As of this writing, [the respondent] has one calendar year of documented noncompliance. As of 11/30/16, the children's safety net with regard to supervision will no longer be available, which places them at great risk of harm." Judge Driscoll granted the ex parte motions for orders of temporary custody on the ground that the children were in immediate physical danger from their surroundings and, as a result of said conditions, the children's safety was endangered and immediate removal from such surroundings was necessary to ensure the children's safety, and that remaining in the home was contrary to the children's welfare. The court ordered that temporary care and custody of the children vest in the petitioner and that reasonable efforts to prevent or eliminate the need for removal of the children had been made by the department. The court scheduled a hearing on the temporary custody motions and ordered the respondent to appear. Judge Foley quoted language from this court, noting that "[o]ur statutes clearly permit an adjudication of neglect based on a potential for harm or abuse to occur in the future. General Statutes § 17a-101 (a) provides: The public policy of this state is . [t]o protect children whose health and welfare may be adversely affected through injury and neglect . By its terms, § 17a-101 (a) connotes a responsibility on the state's behalf to act before the actual occurrence of injury or neglect has taken place. "General Statutes [Rev. to 1999] § 46b-120 (8) provides that a child . may be found neglected who . (C) is being permitted to live under conditions, circumstances or associations injurious to his well being . The department, pursuant to the statute, need not wait until a child is actually harmed before intervening to protect that child. General Statutes § 46b-129 (b) permits the removal of a child from the home by the department when there is reasonable cause to believe that (1) the child . is in immediate physical danger from his surroundings and (2) that as a result of said conditions, the child's safety is endangered and immediate removal from such surroundings is necessary to ensure the child's safety . This statute clearly contemplates a situation where harm could occur but has not actually occurred." (Emphasis omitted; internal quotation marks omitted.) In re Michael D. , 58 Conn. App. 119, 123-24, 752 A.2d 1135, cert. denied, 254 Conn. 911, 759 A.2d 505 (2000). Judge Foley further noted that the authority to issue an order of temporary custody is similar to statutes regarding findings of neglect, but not identical. Practice Book § 33a-6 (a) provides in relevant part: "If the judicial authority finds . that there is reasonable cause to believe that: (1) the child . is suffering from serious physical illness or serious physical injury or is in immediate physical danger from his or her surroundings and (2) that as a result of said conditions , the child's . safety is endangered and immediate removal from such surroundings is necessary to ensure the child's . safety , the judicial authority shall . issue an order [of temporary custody]." (Emphasis added.) The court denied the respondent's motion to vacate the orders of temporary custody. Judge Foley made similar findings in his December 16, 2016 memorandum of decision in which he sustained the orders of temporary custody.

12484830

ALLIED ASSOCIATES v. Q-TRAN, INC.

Allied Assocs. v. Q-Tran, Inc.

2016-05-03

No. 37100.

1104

1108

138 A.3d 1104

138

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-09-08T21:16:17.237805+00:00

Fastcase

ALLIED ASSOCIATES v. Q-TRAN, INC.

ALLIED ASSOCIATES v. Q-TRAN, INC. No. 37100. Appellate Court of Connecticut. Argued March 14, 2016. Decided May 3, 2016. Raymond W. Ganim, Stratford, for the appellant (plaintiff). Robert D. Russo, Southport, for the appellee (defendant). ALVORD, PRESCOTT and MULLINS, Js.

1624

10140

PRESCOTT, J. In this action alleging that the defendant, Q-Tran, Inc., breached a lease agreement, the plaintiff, Allied Associates, appeals from the judgment of the trial court dismissing the case for lack of subject matter jurisdiction on the ground that the plaintiff lacked standing to initiate it. The plaintiff effectively concedes that it did not have standing to initiate the action because it did not own the leased premises at the time that the action was commenced, but argues that the court improperly denied its motion, brought pursuant to General Statutes § 52-109, to substitute the plaintiff with the owner of the leased premises. We reverse the judgment of the court and order that it conduct a new hearing on the plaintiff's motion to substitute. The following procedural history is relevant to this appeal. The plaintiff initiated this action in 2009 and alleged that it was the owner of commercial real property located at 304 Bishop Avenue in Bridgeport. The plaintiff asserted in its complaint that on February 1, 2000, it had entered into a written agreement with the defendant to lease the property and that the defendant had breached the lease agreement by failing to pay rent and to repair and maintain the premises as required by the lease. The plaintiff's operative complaint sought damages and attorney's fees. The plaintiff attached a copy of the lease to its complaint. Although the complaint did not describe or indicate the plaintiff's nature or form of organization, the attached lease indicated that it was a Connecticut general partnership. On December 11, 2013, the defendant filed a motion to dismiss the action for lack of subject matter jurisdiction. In its motion and supporting memorandum, the defendant asserted that the plaintiff lacked standing to bring the action because: (1) the plaintiff had failed to allege that it is a limited liability company, corporation, or other type of registered business and instead is simply doing business under a trade name; and (2) the plaintiff had no legal interest in the property because, prior to the initiation of the action, it had conveyed the property on October 23, 2001, to Bishop Allied Associates, LLC (Bishop). On January 17, 2014, the plaintiff filed a motion, pursuant to § 52-109 and Practice Book § 9-20, requesting that Bishop be substituted as the plaintiff. In that motion, the plaintiff asserted that: (1) it was a general partnership at the time that it entered into the lease and at the time that the action was commenced; (2) on October 23, 2001, it quitclaimed its interest in the leased premises to Bishop; (3) after it had transferred its interest to Bishop, it continued to manage the property as a sublandlord of Bishop; (4) "[t]hrough error, this action was initiated in the name of the [plaintiff], the sublandlord which owned [Bishop], but did not have a direct ownership in the property"; (5) on December 31, 2011, the plaintiff merged into Bishop; and (6) as a result of the merger, all assets of the plaintiff became the assets of Bishop. The plaintiff also filed an objection to the motion to dismiss. In its objection, the plaintiff asserted that it had standing to maintain the action because, by operation of law, it constitutes a Connecticut general partnership and that General Statutes § 34-328 authorizes an action in the name of a partnership. The plaintiff also asserted the following: "Although the named Plaintiff partnership conveyed legal title to the property to a wholly owned limited liability company, the Plaintiff's status remained that of a sublessor through the time of the merger between the Allied Associates, the general partnership, and Bishop Allied Associates, the limited liability company, which occurred on December 31, 2011. As a sublessor, the Allied Associates retained a legal and equitable right in the lease." On July 28, 2014, the court issued a written memorandum of decision denying the plaintiff's motion to substitute and, in turn, granting the defendant's motion to dismiss. In its decision, the court first concluded that the plaintiff was a general partnership at the time the action was commenced, and, as a valid legal entity, had the authority to bring the action in the name of Allied Associates. The defendant has not challenged this determination by way of an alternative ground for affirmance. The court, however, concluded that the plaintiff lacked standing at the time that the action was initiated because it had no legal interest in the property. The court, therefore, turned to the issue of whether the plaintiff's lack of standing could be cured, pursuant to § 52-109, by permitting the substitution of Bishop as the party plaintiff in the case. Section 52-109 provides: "When any action has been commenced in the name of the wrong person as plaintiff, the court may, if satisfied that it was so commenced through mistake, and that it is necessary for the determination of the real matter in dispute to do so, allow any other person to be substituted or added as plaintiff." In deciding whether substitution should be permitted in this case, the court relied on existing Supreme Court precedent, particularly Kortner v. Martise, 312 Conn. 1, 12-13, 91 A.3d 412 (2014), citing DiLieto v. County Obstetrics & Gynecology Group, P.C., 297 Conn. 105, 151-52, 998 A.2d 730 (2010), for the appropriate standard to be employed in analyzing the plaintiff's motion. Our Supreme Court in Kortner and DiLieto concluded that the term "mistake" as used in § 52-109 means "an honest conviction, entertained in good faith and not resulting from the plaintiff's own negligence that she is the proper person to commence the [action]." (Internal quotation marks omitted.) Kortner v. Martise, supra, at 12, 91 A.3d 412. After applying that standard to the plaintiff's motion and the underlying facts, the trial court concluded that the plaintiff's "failure to file this action under the correct party name or move to substitute the correct party plaintiff until January 17, 2014, constitutes negligence" and, thus, did not constitute a "mistake" within the meaning of § 52-109. Accordingly, the court denied the motion to substitute and dismissed the action for lack of subject matter jurisdiction because the plaintiff lacked standing. This appealed followed. After the parties had filed their briefs with this court but shortly before oral argument, our Supreme Court issued its decision in Fairfield Merrittview Ltd. Partnership v. Norwalk, 320 Conn. 535, 133 A.3d 140 (2016). In Fairfield Merrittview Ltd. Partnership, the court stated the following regarding the meaning of the term "mistake" in § 52-109 : "In DiLieto v. County Obstetrics & Gynecology Group, P.C., [supra, 297 Conn. at 151, 998 A.2d 730,] we stated, in dicta, that [u]nder § 52-109, substitution is permitted only when the trial court determines that the action was commenced in the name of the wrong plaintiff through mistake, which properly has been interpreted to mean an honest conviction, entertained in good faith and not resulting from the plaintiff's own negligence that she is the proper person to commence the [action]. As authority for that proposition, which finds no support in the language of the statute or our jurisprudence preceding DiLieto, we cited a Superior Court decision that in fact rejected the recited definition of mistake as too limiting and, practically, too difficult to apply, especially given the ameliorative purpose of § 52-109.... Upon further reflection, we agree, and hold that the term mistake, as used in § 52-109, should be construed in its ordinary sense, rather than as connoting an absence of negligence.... [T]he ordinary understanding of that term is more expansive and, thus, seems more congruent with the remedial purpose of § 52-109.... Specifically, Black's Law Dictionary (9th Ed.2009) defines mistake, in relevant part, as: An error, misconception, or misunderstanding; an erroneous belief. Merriam-Webster's Collegiate Dictionary (10th Ed.1993) defines mistake as: 1: [A] misunderstanding of the meaning or implication of something. 2: [A] wrong action or statement proceeding from faulty judgment, inadequate knowledge, or inattention.... The American Heritage Dictionary (2d College Ed.1985) defines mistake, in relevant part, as: 1. An error or fault. 2. A misconception or misunderstanding." (Citations omitted; internal quotation marks omitted.) Fairfield Merrittview Ltd. Partnership v. Norwalk, supra, at 553 n. 21, 133 A.3d 140. Although the trial court reasonably relied upon the meaning of "mistake" as being the absence of negligence as articulated in DiLieto and Kortner, our Supreme Court has since clarified that the term "mistake" as used in § 52-109 does not mean the absence of negligence. Because the trial court denied the motion on the basis of its finding that the plaintiff had been negligent by filing the action in its name rather than in Bishop's name, we conclude that the judgment must be reversed and the case remanded to the trial court to consider the plaintiff's motion to substitute in light of the clarified standard set forth in Fairfield Merrittview Ltd. Partnership. The judgment is reversed and the case is remanded for further proceedings consistent with this opinion. In this opinion the other judges concurred. The complaint did not seek to evict the defendant because, according to our review of the record, the defendant allegedly vacated the premises prior to the expiration of the lease. The plaintiff subsequently filed an affidavit with supporting documents in support of the factual representations it made in its motion to substitute and its objection to the motion to dismiss. Prior to oral argument, we ordered the parties to be prepared at argument to address the applicability of Fairfield Merrittview Ltd. Partnership to this appeal.

12484979

Angel Huang DO v. COMMISSIONER OF MOTOR VEHICLES.

Do v. Comm'r of Motor Vehicles

2016-04-19

No. 37712.

359

378

138 A.3d 359

138

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-09-08T21:16:17.237805+00:00

Fastcase

Angel Huang DO v. COMMISSIONER OF MOTOR VEHICLES.

Angel Huang DO v. COMMISSIONER OF MOTOR VEHICLES. No. 37712. Appellate Court of Connecticut. Argued Jan. 7, 2016. Decided April 19, 2016. Chet L. Jackson, New Haven, for the appellant (plaintiff). Drew S. Graham, assistant attorney general, with whom, on the brief, was George Jepsen, attorney general, for the appellee (defendant). GRUENDEL, PRESCOTT and BEAR, Js. The listing of judges reflects their seniority status on this court as of the date of oral argument.

9763

61074

PRESCOTT, J. "It is axiomatic that administrative tribunals are not strictly bound by the rules of evidence.... [T]hey may consider exhibits [that] would normally be incompetent in a judicial proceeding, so long as the evidence is reliable and probative." (Internal quotation marks omitted.) Gagliardi v. Commissioner of Children & Families, 155 Conn.App. 610, 619, 110 A.3d 512, cert. denied, 316 Conn. 917, 113 A.3d 70 (2015). It is a rare case in which a decision by an administrative hearing officer to admit an exhibit will be reversed for an abuse of discretion. Principles of fundamental fairness dictate that this is such a case. The plaintiff, Angel Huang Do, appeals from the judgment of the trial court remanding to the defendant, the Commissioner of Motor Vehicles (commissioner), her appeal from his decision to suspend her motor vehicle operator's license for ninety days pursuant to General Statutes § 14-227b. On appeal to this court, the plaintiff claims that the trial court improperly held that the hearing officer did not abuse his discretion by admitting into evidence an unreliable A-44 form and its attachments. In the alternative, the plaintiff claims that even if the exhibit was properly admitted into evidence, the court improperly remanded the case for an articulation. Specifically, the plaintiff challenges the court's decision to remand the case to the agency for an articulation regarding which of the two motor vehicles referenced in the exhibit was the vehicle that the hearing officer concluded that the plaintiff was actually driving. The plaintiff argues that, instead of remanding the case, the court should have concluded that the exhibit, even if properly admitted, did not constitute substantial evidence that the plaintiff violated General Statutes § 14-227a (a), and, thus, the court should have sustained the plaintiff's appeal. Because we agree with the plaintiff's claim that the hearing officer improperly admitted the exhibit, and there was no other evidence admitted into evidence, we conclude that the commissioner's decision is not supported by substantial evidence. It is therefore unnecessary to reach the plaintiff's alternative claim. Accordingly, we reverse the judgment of the trial court and remand the case with direction to render judgment sustaining the plaintiff's appeal. The following facts and procedural history are relevant to the plaintiff's appeal. On April 24, 2014, the plaintiff was arrested and charged with operating a motor vehicle while under the influence of intoxicating liquor in violation of § 14-227a (a). On May 14, 2014, the commissioner sent a revised notice to the plaintiff to inform her of the suspension of her license pursuant to § 14-227b. On May 29, 2014, an administrative hearing was held before a hearing officer pursuant to § 14-227b (g). At that hearing, no testimony was presented, but the Department of Motor Vehicles (department) offered into evidence the A-44 form completed by the arresting officer, Trooper Troy M. Biggs. Attached to the A-44 form were Biggs' investigation report and the results of the breath analysis tests administered to the plaintiff, which showed that she had a blood alcohol content of 0.1184 and 0.1186 percent. The plaintiff objected to the admission of the exhibit on the ground that it was unreliable because it contained numerous errors and discrepancies. The hearing officer overruled the plaintiff's objection on the basis that the discrepancies went to the weight to be given to the exhibit, not its admissibility, and admitted the exhibit into evidence. The hearing officer, acting on behalf of the commissioner, subsequently found, pursuant to § 14-227b (g), that: "(1) The police officer had probable cause to arrest the [plaintiff] for a violation specified in [§ 14-227a (a) ]"; "(2) [the plaintiff] was placed under arrest"; "(3) [the plaintiff] submitted to [a sobriety] test or analysis and the results indicated a BAC of .08% or more"; and "(4) [the plaintiff] was operating the motor vehicle." On the basis of these findings, the commissioner ordered that the plaintiff's license be suspended for a period of ninety days. Pursuant to General Statutes § 4-183, the plaintiff appealed from the hearing officer's decision to the Superior Court. The plaintiff claimed that (1) the hearing officer improperly admitted the exhibit into evidence and (2) there was not substantial evidence in the record to support the hearing officer's findings. The court rejected the plaintiff's claim that the exhibit was inadmissible, but, because of conflicting information in the exhibit regarding the motor vehicle involved, it remanded the case to the hearing officer for an articulation as to which motor vehicle the hearing officer concluded that the plaintiff had operated. This appeal followed. Additional facts will be set forth as necessary. I The plaintiff claims that the court improperly concluded that the hearing officer did not abuse his discretion by admitting the exhibit into evidence. Specifically, the plaintiff argues that the numerous errors and discrepancies contained in the exhibit render it unreliable and, thus, inadmissible. The commissioner responds that because the exhibit was signed under oath by the arresting officer in accordance with § 14-227b (c), the exhibit contained sufficient indicia of reliability and, thus, was admissible. We agree with the plaintiff that the hearing officer abused his discretion by admitting the exhibit because the number of obvious discrepancies and errors in the documents rendered the exhibit unreliable. The following additional facts are necessary to resolve this claim. At the administrative hearing, the plaintiff objected to the admission of the exhibit into evidence on the ground that it was unreliable because of numerous discrepancies and errors contained therein. In the A-44 form, Trooper Biggs swore under oath that the vehicle that the plaintiff operated was a 2007 Audi A4 with a Massachusetts registration plate. In the attached investigation report, however, Biggs swore under oath that the vehicle that the plaintiff operated was a Mercedes-Benz with a Connecticut registration plate. Additionally, in section B of the A-44 form, the incident date is recorded as April 23, 2014. That notation, however, is crossed out and replaced in handwriting with the date April 24, 2014. Next to the handwritten date are the initials "RH," which do not correspond to the initials of the arresting officer, Troy M. Biggs. There is no evidence as to who made this alteration, when it was made, and whether it was sworn to under oath. Our review of the exhibit suggests that the information contained in it may have been copied from another A-44 form involving the arrest of a different individual. In the "Phase III" section of the investigation report, Biggs stated that the plaintiff wore contact lenses. In the following section, Biggs averred that he had the plaintiff perform the Horizontal Gaze Nystagmus test with and without her glasses, which presumably she would not have been wearing had she been wearing her contact lenses. In section J of the A-44 form, which is completed in cases in which an operator of a vehicle refuses to participate in a chemical alcohol test, "Helt, David" is listed as a witness to the plaintiff's alleged refusal. The plaintiff, however, submitted to a breath analysis test, which the commissioner conceded in his brief to this court. On the A-44 form, "Helt, David" is crossed out and initialed by "RH." Again, there is no evidence regarding who made this alteration, when it was made, and whether it was made under oath. On the basis of these errors and discrepancies, the plaintiff argued that the exhibit was unreliable because it is not clear what information contained in the exhibit actually pertained to this case. The hearing officer, however, agreed with the department that these discrepancies amounted to scrivener's errors and went to the weight to be afforded the exhibit, not its admissibility. On appeal to the trial court, the court agreed with the hearing officer that these discrepancies "[do] not negate the overall reliability of the report, which otherwise meets the statutory and regulatory criteria. Rather, the conflict simply creates a fact or credibility issue for the hearing officer to resolve. 'It is within the province of the hearing officer to determine the credibility of evidence.' Roy v. Commissioner of Motor Vehicles, 67 Conn.App. 394, 397, 786 A.2d 1279 (2002[2001] ). Therefore, the hearing officer did not abuse his discretion in admitting the [exhibit]." We begin by setting forth the relevant standard of review and legal principles that guide our analysis. We review a hearing officer's evidentiary ruling for whether "the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion." (Internal quotation marks omitted.) Gagliardi v. Commissioner of Children & Families, supra, 155 Conn.App. at 618, 110 A.3d 512. "It is axiomatic that administrative tribunals are not strictly bound by the rules of evidence.... [T]hey may consider exhibits [that] would normally be incompetent in a judicial proceeding, so long as the evidence is reliable and probative.... According to General Statutes § 4-178, in a contested case before an agency, [a]ny oral or documentary evidence may be received, but the agency shall, as a matter of policy, provide for the exclusion of irrelevant, immaterial or unduly repetitious evidence...." (Citation omitted; internal quotation marks omitted.) Id., at 619-20, 110 A.3d 512. Although evidentiary rules are considerably relaxed in administrative hearings, the conduct of the hearing must be fundamentally fair and cannot "violate the fundamental rules of natural justice." Bancroft v. Commissioner of Motor Vehicles, 48 Conn.App. 391, 400, 408, 710 A.2d 807, cert. denied, 245 Conn. 917, 717 A.2d 234 (1998). Section 14-227b, commonly referred to as the implied consent statute, governs license suspension hearings. At the license suspension hearing, pursuant to § 14-227b-19 (a) of the Regulations of Connecticut State Agencies, the A-44 form, which the arresting officer is required to complete, "shall be admissible into evidence at the hearing if it conforms to the requirements of subsection (c) of Section 14-227b of the General Statutes." Section 14-227b (c) provides in relevant part that the A-44 form "shall contain such information as prescribed by the Commissioner of Motor Vehicles and shall be subscribed and sworn to under penalty of false statement as provided in [ General Statutes §] 53a-157b by the arresting officer.... The report shall set forth the grounds for the officer's belief that there was probable cause to arrest such person for a violation of subsection (a) of [§ ] 14-227a and shall state that such person . submitted to such [sobriety] test or analysis, commenced within two hours of the time of operation, and the results of such test or analysis indicated that such person had an elevated blood alcohol content...." In Volck v. Muzio, 204 Conn. 507, 518, 529 A.2d 177 (1987), our Supreme Court held that the "evident purpose [of § 14-227b (c) ] is to provide sufficient indicia of reliability so that the report can be introduced in evidence as an exception to the hearsay rule, especially in license suspension proceedings, without the necessity of producing the arresting officer." The court, therefore, concluded that if an A-44 form does not comply with subsection (c), it is unreliable and, thus, inadmissible, as long as the plaintiff objected to its admission into evidence. Id.; see Winsor v. Commissioner of Motor Vehicles, 101 Conn.App. 674, 688, 922 A.2d 330 (2007) ("[b]ecause § 14-227b [c] is tailored to satisfy an exception to the hearsay rule, a failure to comply with [its requirements] renders the A-44 form inadmissible, at least in the absence of direct testimony from the arresting officer"); Bialowas v. Commissioner of Motor Vehicles, 44 Conn.App. 702, 712, 692 A.2d 834 (1997) ("[T]here is merit, in theory, to a claim of procedural error that bears on the police report's reliability.... If the report did not include such indicia of reliability, the report would not be admissible even before an administrative tribunal of this type." [Citations omitted; internal quotation marks omitted.] ). On the basis of our Supreme Court's holding in Volck, technical compliance with § 14-227b (c) is a necessary prerequisite to a determination that an A-44 form is sufficiently reliable to be admitted into evidence. Neither our Supreme Court nor this court, however, has ever held that technical compliance with subsection (c) must always result in the admission of an A-44 form. Although an A-44 form may technically comply with subsection (c), the information contained in the four corners of the document may still lead the hearing officer to conclude that the document is otherwise unreliable. The reliability of an A-44 form is especially important because the commissioner has heavily curtailed a plaintiff's ability to cross-examine the arresting officer regarding the information contained within the A-44 form by permitting himself to rely solely on these A-44 forms as evidence without testimony from the arresting officer. Although § 14-227b-18 of the Regulations of Connecticut State Agencies permits a person arrested for violating § 14-227a (a) to summon the arresting officer to the administrative hearing, if the subpoenaed arresting officer does not appear, the person arrested is not entitled to a continuance or a dismissal. Thus, even though an arrested person can subpoena the arresting officer, if the officer does not appear, the arrested person is deprived of his or her ability to cross-examine the officer regarding any errors in the A-44 form. Because the reliability of the A-44 form is of the utmost importance, there may be instances in which an A-44 form contains so many significant internal discrepancies and errors that it is rendered unreliable, at least in the absence of testimony by the arresting officer or other evidence that supports its reliability. In some instances, the department, if it wishes that the document be admitted into evidence, may be obligated to call the arresting officer as a witness to explain the discrepancies and errors. In this regard, it is important to remember that it is the department's burden to demonstrate that the plaintiff violated § 14-227a (a). Additionally, it was the department's ultimate burden to establish the exhibit's admissibility. The dissent asserts that it was the plaintiff's burden to offer evidence at the administrative hearing to prove or explain the inconsistencies in the exhibit. For example, the dissent argues that the plaintiff should have offered the A-44 form, involving the arrest of another motorist, from which A-44 form information was copied and pasted into the exhibit at issue. "[T]he burden [however] is on the proponent of the evidence, upon timely objection, to establish that the evidence is admissible." New England Savings Bank v. Bedford Realty Corp., 238 Conn. 745, 753, 680 A.2d 301 (1996). Although there are exceptions to the general rule, "[t]he burden of proving the grounds of an objection is ordinarily not upon the opponent; whether he objects on the ground that the original of a document is not produced, or that an attesting witness ought to be called, or that a dying declarant was not conscious of impending dissolution, the burden of establishing the preliminary facts essential to satisfy any rule of evidence is upon the party offering it. The opponent merely invokes the law; if it is applicable to the evidence, the proponent must make the evidence satisfy the law." 1 J. Wigmore, Evidence (Tillers Rev.1983) § 18, p. 841. In the present case, because the plaintiff objected to the admission of the exhibit and casted significant doubt upon its reliability, the burden was on the department to offer additional evidence to prove the reliability of the exhibit. Not only was it not the plaintiff's burden to prove the cause or source of the obvious and significant inconsistencies in the exhibit, but it also would be highly impracticable to require the plaintiff to do so because such facts were not within her custody or control. For example, the plaintiff would have had little or no opportunity to obtain the prior A-44 form to prove that portions of the exhibit were copied from it because she did not know the name of the other motorist. Once the plaintiff objected and raised serious questions regarding the exhibit's reliability, it was the department's burden to produce sufficient evidence to demonstrate the exhibit's reliability, and, ultimately, its admissibility. Placing this burden on the department is consistent with our Supreme Court's holding in Carlson v. Kozlowski, 172 Conn. 263, 267-68, 374 A.2d 207 (1977), that although hearsay evidence is generally admissible in administrative hearings, hearsay evidence must be sufficiently reliable to be admissible. To determine whether hearsay evidence is sufficiently reliable in an administrative hearing, the court in Carlson adopted the test articulated in Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). In Richardson, the United States Supreme Court was asked to decide whether medical records were sufficiently reliable to be admissible in an administrative hearing without the testimony of the medical examiner. Id., at 402, 91 S.Ct. 1420. In holding that the medical records were reliable, the court looked to multiple factors, including whether there were inconsistencies on the face of the records, and whether the plaintiff had the ability to subpoena the author of the records. Id., at 403-406, 91 S.Ct. 1420. The Supreme Court noted that there was not a single inconsistency amongst the medical records, which strengthened their reliability. Id., at 404, 91 S.Ct. 1420. Thus, by adopting the Richardson factors, our Supreme Court has recognized that internal inconsistencies within the four corners of a document factor into a determination of the reliability of that document. The court did not, however, hold that the plaintiff was required to prove the source of the inconsistencies in order to show the document's unreliability. We do not suggest, however, that an A-44 form is admissible only if the arresting officer testifies at the administrative hearing and explains any discrepancies. Indeed, tribunals often determine whether an exhibit or testimony is sufficiently reliable in light of other evidence in the record. In other words, in the absence of corroborating evidence, one piece of evidence may be unreliable and, therefore, inadmissible, but that same piece of evidence may be admissible if supported by sufficient corroborating evidence. Moreover, if the discrepancy amounts to a mere scrivener's error, an objection may not raise a significant question regarding an A-44 form's reliability that would require the department to offer additional evidence regarding its reliability. Such a determination may be made only on a case-by-case basis. In the present case, we conclude that the trial court improperly concluded that the exhibit was sufficiently reliable. Portions of the exhibit in all likelihood pertain to the arrest of another individual, calling into question which portions of the exhibit actually pertain to the plaintiff. Furthermore, portions of the exhibit have been altered and initialed by an unknown person, and it is unclear whether this person had personalized knowledge of the incident and swore under oath to the accuracy of the alterations. Additionally, there is no evidence as to when these alterations occurred. These discrepancies and errors heavily undermine the exhibit's reliability. The extent of the errors and discrepancies far surpasses mere scrivener's errors. The exhibit does not merely state that the plaintiff operated two different vehicles-an Audi and a Mercedes-Benz-but it also lists different vehicle models, years, and state registrations. The statements that the plaintiff wore contact lenses and that the plaintiff participated in field sobriety tests with and without her glasses also cannot be dismissed as mere scrivener's errors. Additionally, the notation that "Helt, David" witnessed the plaintiff's refusal to submit to chemical alcohol testing is not a scrivener's error because the department admits that the plaintiff consented to the breathalyzer test. Although the incident date on the A-44 form may be a scrivener's error, the alteration by an unknown person undermines its reliability. Not only do these discrepancies undermine the exhibit's reliability as a whole, but they also establish that the exhibit does not meet the requirement under § 14-227b (c) that the arresting officer swear to the accuracy of the A-44 form under oath. The commissioner contends that Biggs signed the exhibit under oath, and, thus, the exhibit complies with subsection (c). This assertion is incorrect for multiple reasons. First, Biggs could not have had a basis of knowledge to swear to the accuracy of the facts contained in the exhibit if portions of the exhibit were copied from the arrest of another individual. Second, because the exhibit is altered by "RH" and there is no indication that "RH" swore to the accuracy of the alterations under oath, the exhibit does not comply with the obligation in subsection (c) that the document be sworn to under oath by the arresting officer. Third, because there is no evidence as to when the alterations occurred, the exhibit that Biggs signed under oath may not be the same exhibit that is before us today. Accordingly, at most, Biggs swore to the accuracy of portions of the exhibit, which is not sufficient under § 14-227b (c). This case is distinguishable from cases in which Connecticut courts have found that noncompliance with § 14-227b (c) did not render an A-44 form inadmissible. Those cases fall into one of three categories. The first category involves cases in which the A-44 form contained sufficient additional information, sworn to under oath, to ameliorate any noncompliance with § 14-227b (c) or to remove serious questions regarding the document's reliability. See Roy v. Commissioner of Motor Vehicles, supra, 67 Conn.App. at 399, 786 A.2d 1279 (A-44 form was sufficiently reliable because although hearing officer did not check box on form indicating that plaintiff operated vehicle on public road, he described public road in investigation report). The second category involves cases in which noncompliance with subsection (c) was a mere scrivener's error. See Graton v. Commissioner of Motor Vehicles, Superior Court, judicial district of New Britain, Docket No. CV-13-6020980-S, 2013 WL 6916780 (December 9, 2013) ("[E]ven if it is read as a '10,' instead of '12,' the court finds that this was a mere scrivener's error because the plaintiff was not arrested until April 12th. This minor discrepancy does not render the [A-44 form] and its attachments unreliable."). The last category involves cases in which the admission of the A-44 form into evidence was not objected to at the administrative hearing. See Volck v. Muzio, supra, 204 Conn. at 518, 529 A.2d 177 ("[t]he absence of the endorsement of a third person who witnessed the arrested operator's refusal of testing would have rendered [the arresting officer's] report inadmissible if the plaintiff had objected thereto"). Here, the number and significance of the discrepancies and errors are far greater. "This court is aware of the carnage associated with drunken drivers.... Nevertheless, in our endeavor to rid our roads of these drivers . we cannot trample on the constitutional rights of other citizens. They are entitled to a fair hearing." (Citation omitted; internal quotation marks omitted.) Bialowas v. Commissioner of Motor Vehicles, supra, 44 Conn.App. at 718, 692 A.2d 834. Fundamental fairness requires the admission of only reliable evidence. Finally, it is important to recognize that we must place some limit on the degree to which a critical document, like an A-44 form, may contain significant errors and discrepancies and still be admissible. If we held that this exhibit, standing alone, was sufficiently reliable to be admitted, we would altogether disincentivize police officers to accurately document critical facts necessary to establish that a motorist has violated § 14-227a (a). In other words, if an A-44 form is always admissible, as the commissioner seems to suggest, as long as the arresting officer's signature is on the document and the document in some way describes probable cause to arrest some motorist, there would be no incentive to create an accurate and complete report of the incident. Although we recognize that mere scrivener's errors should not render an A-44 form inadmissible in all circumstances, this is not such a case. Accordingly, we conclude that the trial court improperly determined that the hearing officer did not abuse his discretion by admitting the exhibit into evidence. II Our inquiry, however, does not end with our conclusion that the exhibit was not sufficiently reliable and, thus, was inadmissible at the administrative hearing. "Even in the absence of the A-44 form, [i]f the administrative record provides substantial evidence upon which the hearing officer could reasonably have based his finding . the decision must be upheld." (Internal quotation marks omitted.) Winsor v. Commissioner of Motor Vehicles, supra, 101 Conn.App. at 688, 922 A.2d 330. "We review the issues raised by the plaintiff in accordance with the limited scope of judicial review afforded by the [Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq. ].... Judicial review of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable.... Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion.... [T]he plaintiff bears the burden of demonstrating that a hearing officer's evidentiary ruling is arbitrary, illegal or an abuse of discretion.... "An administrative finding is supported by substantial evidence if the record affords a substantial basis of fact from which the fact in issue can be reasonably inferred.... The substantial evidence rule imposes an important limitation on the power of the courts to over-turn a decision of an administrative agency . and . provide[s] a more restrictive standard of review than standards embodying review of weight of the evidence or clearly erroneous action.... [I]t is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence.... "[A]s to questions of law, [t]he court's ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion.... Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts." (Internal quotation marks omitted.) Gagliardi v. Commissioner of Children & Families, supra, 155 Conn.App. at 617-18, 110 A.3d 512. In the present case, the department offered no evidence other than the exhibit at the administrative hearing. Without the exhibit, there is nothing in the record to support the hearing officer's determination that the plaintiff violated § 14-227a (a). At the administrative hearing, the department had the opportunity to present additional evidence, and it chose not to avail itself of this opportunity. Without the admission of the exhibit, the department has failed to meet its burden to provide substantial evidence that the plaintiff violated § 14-227a (a). Accordingly, the plaintiff's appeal must be sustained. The judgment is reversed and the case is remanded with direction to render judgment sustaining the plaintiff's appeal. In this opinion GRUENDEL, J., concurred. "The A-44 form is used by the police to report an arrest related to operating a motor vehicle under the influence and the results of any sobriety tests administered or the refusal to submit to such tests." Roy v. Commissioner of Motor Vehicles, 67 Conn.App. 394, 396 n. 3, 786 A.2d 1279 (2001) ; see General Statutes § 14-227b (c) ("The [arresting] police officer shall prepare a report of the incident.... The report shall contain such information as prescribed by the Commissioner of Motor Vehicles...."). Because the A-44 form and its attachments were offered into evidence as a single exhibit and there were no other exhibits offered at the administrative hearing, for the purposes of this opinion, we refer to them as a whole as the exhibit. We will only refer to the individual documents that comprise the exhibit-the A-44 form, the investigation report, and the breath analysis test results-to identify specific information contained therein. We also note that the second page of the A-44 form was not included in the return of the administrative record. The commissioner supplemented the administrative record with the missing page from the A-44 form prior to the hearing before the trial court. General Statutes § 14-227a (a) provides in relevant part: "No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if such person operates a motor vehicle (1) while under the influence of intoxicating liquor or any drug or both, or (2) while such person has an elevated blood alcohol content...." General Statutes § 14-227b (g) provides in relevant part: "If such person contacts the department to schedule a hearing, the department shall assign a date, time and place for the hearing, which date shall be prior to the effective date of the suspension, except that, with respect to a person whose operator's license or nonresident operating privilege is suspended in accordance with subdivision (2) of subsection (e) of this section, such hearing shall be scheduled not later than thirty days after such person contacts the department...." The trial court's memorandum of decision states that the arresting officer's name was "Trooper Troy M. Briggs," but our review of the exhibit reveals that his last name is Biggs. General Statutes § 4-183 provides in relevant part: "(a) A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the Superior Court as provided in this section...." For the purposes of § 4-183, a remand is an appealable final judgment. See General Statutes § 4-183(j). Although the A-44 form is signed by Sergeant Ryan M. Hennessey as the person who administered the oath to Biggs, no evidence was presented at the administrative hearing to prove that Hennessey is "RH." Even assuming that Hennessey is "RH," there was no evidence offered at the administrative hearing as to whether he made the alteration before or after Biggs signed the A-44 form, or whether he made the alteration under oath, as required by § 14-227b (c). The trial court in its memorandum of decision does not discuss or analyze this discrepancy, which appears on the second page of the A-44 form, and does not appear to have factored it into its analysis regarding whether it, along with the other errors and discrepancies, renders the exhibit unreliable. We note that in Volck, our Supreme Court held that strict compliance with subsection (c) is not a prerequisite for license suspension pursuant to § 14-227b. Volck v. Muzio, supra, 204 Conn. at 517, 529 A.2d 177. Thus, if an A-44 form does not comply with subsection (c), but there is other substantial evidence in the record to support the hearing officer's decision in the absence of the A-44 form, the decision must be upheld. See Winsor v. Commissioner of Motor Vehicles, 101 Conn.App. 674, 688, 922 A.2d 330 (2007). Furthermore, if a plaintiff does not object to the admission of the A-44 form into evidence and it is admitted into evidence, it may constitute substantial evidence even if it does not comply with subsection (c). Volck v. Muzio, supra, at 518, 529 A.2d 177. Section 14-227b-18 of the Regulations of Connecticut State Agencies provides in relevant part: "(b) A person arrested for an enumerated offense may at his own expense and by his own solicitation summon to the hearing the arresting officer and any other witness to give oral testimony. The failure to appear at the hearing of any witness summoned by the person arrested shall not be grounds for such person to request a continuance or dismissal of the hearing...." To the extent that the plaintiff's claim raises a due process issue, we need not address it because we rule in favor of the plaintiff on the evidentiary ground raised. See State v. Genotti, 220 Conn. 796, 804, 601 A.2d 1013 (1992) (court should eschew reaching constitutional issues on appeal if claim disposed of on evidentiary grounds). Although each of these discrepancies alone may not have rendered the exhibit inadmissible, their cumulative effect persuades us that it should not have been admitted. The dissent assigns fault to the trial court's conclusion that the case should be remanded for further factual findings or for an articulation regarding which motor vehicle the plaintiff allegedly operated before it decides the merits of the appeal. The dissent contends that we should reverse the court's decision to remand the case to the department and instead conclude that the exhibit provided substantial evidence sufficient to support the commissioner's decision to suspend the plaintiff's license. The relief, however, that the dissent argues should be granted was not sought by the commissioner, except in a conclusory final sentence in his appellate brief. The commissioner did not file a cross appeal or otherwise take issue with the court's conclusion that the case should be remanded to the department before deciding the merits of the appeal. In fact, the commissioner argued that the trial court did not abuse its discretion by ordering a remand. Although we are disinclined to agree with the dissent on this point, we need not decide it in light of our conclusion that the exhibit was inadmissible.

12488780

DATTCO, INC. v. COMMISSIONER OF TRANSPORTATION Collins Bus Service, Inc. v. Commissioner of Transportation Nason Partners, LLC v. Commissioner of Transportation The New Britain Transportation Company v. Commissioner of Transportation

Dattco, Inc. v. Comm'r of Transp. Collins Bus Serv., Inc.

2016-12-27

SC 19558

823

841

151 A.3d 823

151

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

2021-09-08T21:16:17.237805+00:00

Fastcase

DATTCO, INC. v. COMMISSIONER OF TRANSPORTATION

DATTCO, INC. v. COMMISSIONER OF TRANSPORTATION Collins Bus Service, Inc. v. Commissioner of Transportation Nason Partners, LLC v. Commissioner of Transportation The New Britain Transportation Company v. Commissioner of Transportation SC 19558 Supreme Court of Connecticut. Argued October 20, 2016 Officially Released December 27, 2016 Jeffrey J. Mirman, with whom was David A. DeBassio, Hartford, for the appellants (plaintiffs). Eileen Meskill, assistant attorney general, with whom were Charles H. Walsh, Hartford, assistant attorney general, and, on the brief, George Jepsen, attorney general, and Alan N. Ponanski, assistant attorney general, for the appellee (defendant). Palmer, Zarella, Eveleigh, McDonald, Robinson and Vertefeuille, Js.

10314

65985

ZARELLA, J. General Statutes § 13b-36 (a) permits the defendant, the Commissioner of Transportation (commissioner), to take by eminent domain "any land, buildings, equipment or facilities" if the commissioner finds that their taking is "necessary for the operation or improvement of transportation services." In this appeal, we must determine whether the commissioner's power to take "facilities" includes the power to take a government issued certificate permitting a bus company the right to operate over a given route. We conclude that it does not. I The parties do not dispute the facts relevant to this appeal. The plaintiffs are four bus companies operating buses over routes in and around the cities of Hartford and New Britain. Each plaintiff holds a certificate of public convenience and necessity, granting it authority to operate a bus service over a specified route. The certificates were issued under predecessor statutes to what is now General Statutes § 13b-80. Section 13b-80 provides that "[n]o person, association, limited liability company or corporation shall operate a motor bus without having obtained a certificate . specifying the route and certifying that public convenience and necessity require the operation of a motor bus or motor buses over such route." The certificates in question were each issued before October 1, 1979. Most were issued by the predecessor agency to the Division of Public Utility Control (DPUC), with one of them issued by the Greater Hartford Transit District. Before October 1, 1979, the DPUC's predecessor and transit districts held exclusive authority to regulate private bus service and to issue certificates of public convenience and necessity to private bus companies. See, e.g., General Statutes (Rev. to 1975) § 16-309 and 16-312a; see also General Statutes (Rev. to 1975) § 7-273d. Effective October 1, 1979, however, the legislature transferred the authority to regulate bus companies to the Department of Transportation; see Public Acts 1979, No. 79-610, § 9 (P.A. 79-610); and the legislature amended P.A. 79-610 in 1980 to make clear that any certificates issued before the transfer of authority would "remain valid unless suspended or revoked ." Public Acts 1980, No. 80-25, § 2, codified at General Statutes (Rev. to 1981) § 13b-80. The transit districts have retained their power to regulate bus service within their respective jurisdictions. See General Statutes § 7-273d. Although some of the certificates have been amended since they were issued, neither the commissioner nor the Greater Hartford Transit District has moved to suspend or revoke them. Recently, however, the state constructed a new designated busway between New Britain and Hartford. According to the plaintiffs, the new busway incorporates some of the routes over which the plaintiffs currently operate, and the state sought to hire new companies to operate buses over these routes. The plaintiffs claim that their certificates give them exclusive rights to operate over the routes at issue, precluding the commissioner from authorizing other operators to use them unless the commissioner properly suspends or revokes their certificates for cause. In a separate action that is not the subject of this appeal, the plaintiffs sought to enjoin the commissioner from allowing other companies to operate motor buses over their designated routes. The trial court in that case issued a preliminary injunction precluding the commissioner from transferring the routes at issue to new operators pending the outcome of the litigation. While that case was pending, however, the commissioner condemned the certificates pursuant to the state's power of eminent domain, prompting the plaintiffs to file the actions that are the subject of this appeal. The plaintiffs each claim that the commissioner lacks the statutory authority to condemn their certificates. They seek permanent injunctive and other relief preventing the commissioner from carrying out the condemnations. The trial court consolidated all of the actions, and the parties filed motions for summary judgment. The plaintiffs argued that the commissioner lacked the authority to take the certificates as a matter of law, whereas the commissioner claimed that the General Statutes clearly vested him with such power. The disagreement between the parties centered on the term "facilities," as used in § 13b-36 (a), which vests the commissioner with the power of eminent domain. That statute authorizes the commissioner to take "land, buildings, equipment or facilities" if he deems their taking necessary. General Statutes § 13b-36 (a). The commissioner argued that the word facilities has a broad meaning and includes anything that promotes the ease of any action. According to the commissioner, the certificates are "facilities" inasmuch as they enable the plaintiffs to carry out their businesses. The plaintiffs disagreed, however, claiming that the term "facilities," as used in the statute, refers only to tangible assets, not intangible rights like the certificates at issue, which represent a government bestowed operating right. The trial court denied the plaintiffs' motion for summary judgment but granted the commissioner's motion for summary judgment. The trial court agreed with the commissioner's interpretation and concluded that § 13b-36 (a) gave the commissioner authority to condemn the certificates. The trial court then rendered judgment in favor of the commissioner in each of the consolidated cases. This appeal followed. Because the decision to grant a motion for summary judgment is a question of law, our review of the trial court's decision is plenary. See, e.g., Rocco v. Garrison , 268 Conn. 541, 548-49, 848 A.2d 352 (2004). II The commissioner may condemn the certificates at issue only if the legislature has delegated that authority to him by legislative act. The plaintiffs each hold a property right in their own certificates that cannot be taken by the state without due process of law. See Gray Line Bus Co . v. Greater Bridgeport Transit District , 188 Conn. 417, 423, 449 A.2d 1036 (1982). The parties agree that the plaintiffs can be deprived of their rights in their certificates only if the certificates are suspended or revoked for cause pursuant to § 13b-80, or condemned under the state's eminent domain power. See id. ; see also General Statutes § 13b-80. The commissioner has not attempted to suspend or revoke the certificates, so he may terminate the plaintiffs' rights only through condemnation. The power to condemn resides with the legislature, but the commissioner may exercise this power if the legislature has delegated it to him. E.g., Northeastern Gas Transmission Co . v. Collins , 138 Conn. 582, 586-87, 87 A.2d 139 (1952). When the legislature delegates eminent domain power, we will enforce the grant of power consistent with the purposes of the legislation, but we interpret the scope of the power granted strictly, and in favor of the property owner and against the condemner. Pequonnock Yacht Club, Inc. v. City of Bridgeport , 259 Conn. 592, 601, 790 A.2d 1178 (2002). Moreover, when the legislature delegates eminent domain power, "the extent of the power is limited by the express terms or clear implications of the statute authorizing its exercise." Northeastern Gas Transmission Co . v. Collins , supra, at 592, 87 A.2d 139. There is no question that the state holds the power to condemn the certificates-the question before us is whether the legislature has delegated that power to the commissioner. The commissioner claims that this delegation is found in General Statutes § 13b-36 (a). As in the trial court, the parties disagree in this appeal whether the term "facilities," as used in that statute, refers only to tangible assets or whether it also allows the commissioner to take intangible operating rights. We conclude that § 13b-36 (a) does not permit the commissioner to take intangible operating rights like those reflected in the certificates in question. A We look first to the text of the statute at issue to determine whether its terms provide the commissioner the power he claims. See General Statutes § 1-2z. Section 13b-36 (a) confers eminent domain powers on the commissioner and describes the types of property that he may take using this power. That statute provides: "The commissioner may purchase or take and, in the name of the state, may acquire title in fee simple to, or any lesser estate, interest or right in, any land, buildings, equipment or facilities which the commissioner finds necessary for the operation or improvement of transportation services. The determination by the commissioner that such purchase or taking is necessary shall be conclusive. Such taking shall be in the manner prescribed in subsection (b) of section 13a-73 for the taking of land for state highways." (Emphasis added.) General Statutes § 13b-36 (a). The legislature did not define the term "facilities" in this statute, so we interpret the term according to its common meaning; General Statutes § 1-1 (a) ; and we look to the dictionary to glean that meaning. See, e.g., Potvin v. Lincoln Service & Equipment Co ., 298 Conn. 620, 633, 6 A.3d 60 (2010). Webster's Third New International Dictionary sets forth five distinct meanings for the word "facility," two of which are relevant to the statute at issue: (1) "something (as a hospital, machinery, plumbing) that is built, constructed, installed, or established to perform some particular function or to serve or to facilitate some particular end"; and (2) "something that promotes the ease of any action, operation, transaction, or course of conduct ." Webster's Third New International Dictionary (2002) p. 812. Although the first definition suggests a tangible item based on the examples provided in the definition, the commissioner seizes on the second, broader interpretation. He argues that it is broad enough to include anything tangible or intangible attendant to the plaintiffs' businesses. We disagree that the commissioner's preferred definition of "facilities" is broad enough to encompass the certificates at issue because they do not merely "promote the ease" of the plaintiffs' business but, in fact, authorize it in the first place. To be sure, this broader definition may, standing alone, refer to intangible rights that promote the ease of a given action-like contract rights-and courts have concluded as much. See, e.g., Hartford Electric Light Co . v. Federal Power Commission , 131 F.2d 953, 961 (2d Cir. 1942) (concluding that power company's "facilities" included company's contracts and accounts), cert. denied, 319 U.S. 741, 63 S.Ct. 1028, 87 L.Ed. 1698 (1943). But the operating rights reflected in the certificates are of a different character than something that promotes the ease of an action. They are not used by the plaintiffs to ease their provision of service or to better their service to passengers; the certificates provide the important, fundamental authority to conduct the service in the first place. We are not aware of any case that has examined the meaning of the term "facilities" and interpreted that term as encompassing a government issued operating right. In fact, in the only other case brought to our attention that has considered a similar question, the court concluded that the term "facility" does not refer to a company's operating rights. Lynnwood Utility Co. v. City of Franklin , Tennessee Court of Appeals, Docket No. 89-360-II, 1990 WL 38358 (April 6, 1990) (determining, in condemnation case, that "[a] [c]ertificate of [c]onvenience and [n]ecessity is not a facility"). We therefore conclude that interpreting "facilities" to refer not just to what makes an action easier, but also to the very authority that authorizes the action altogether, would unduly stretch the meaning of that term too far. This is especially true considering that we must construe a delegation of eminent domain power strictly and against the power of the condemner. Pequonnock Yacht Club, Inc . v. Bridgeport , supra, 259 Conn. at 601, 790 A.2d 1178. Adopting the commissioner's broad interpretation would contradict that principle. B Even if we were to assume, however, that the term "facilities," standing alone, could arguably refer to operating rights, the context in which that term is used in the provision at issue and other related provisions convinces us that the legislature did not intend for the term "facilities," as used in § 13b-36 (a), to encompass the certificates at issue. In addition to considering the dictionary definition of the term "facilities," we must consider its meaning also in the context that it is used in the provision at issue and in related provisions. See General Statutes § 1-2z. The text of the provision at issue, § 13b-36 (a), strongly suggests that the term "facilities" refers to tangible assets, not intangible operating rights. Section 13b-36 (a) groups the term "facilities" with three other nouns describing what the commissioner may condemn, namely, "land, buildings, equipment," and each refers to tangible objects. Typically, when a statute sets forth a list or group of related terms, we usually construe them together. See, e.g., Staples v. Palten , 214 Conn. 195, 199-200, 571 A.2d 97 (1990). This principle-referred to as " 'noscitur a sociis' "-acknowledges that "the meaning of a particular word or phrase in a statute is ascertained by reference to those words or phrases with which it is associated." Id., at 199, 571 A.2d 97. As a result, broader terms, when used together with more narrow terms, may have a more restricted meaning than if they stand alone. See id. ("noscitur a sociis . acknowledges that general and specific words are associated with and take color from each other, restricting general words to a sense . less general " [emphasis added; internal quotation marks omitted] ). The legislature's grouping of the term "facilities" with other nouns that all denote tangible objects favors a conclusion that the term "facilities" also refers to tangible objects other than land, buildings, and equipment that might be used in a transportation system. Moreover, interpreting "facilities" to mean only tangible items does not render it superfluous or redundant with respect to the terms "land," "buildings," or "equipment," as the commissioner suggests. The term "facilities" embraces numerous tangible items-other than land, buildings, or equipment-including bridges; General Statutes § 13b-56 ; docks; General Statutes § 13b-56 ; see also Coeur D'Alene & St. Joe Transportation Co . v. Ferrell , 22 Idaho 752, 758, 128 P. 565 (1912) ; side railroad tracks that are part of a rail system; Tucker v. St. Louis-San Francisco Railway Co. , 298 Mo. 51, 58, 250 S.W. 390 (1923) ; dams and reservoirs; Wright v. Sabine River Au thority , 308 So.2d 402, 406, 410 (La. App. 1975) ; and even horses. Bernardine v. New York , 294 N.Y. 361, 365, 62 N.E.2d 604 (1945). On the other hand, interpreting "facilities" to broadly refer to anything that supports a given action, as the commissioner argues and the dissent agrees, would render superfluous the terms "land," "buildings," and "equipment" in § 13b-36 (a) because those items would already be encompassed within the broad meaning of "facilities" urged by the commissioner. See, e.g., Lopa v. Brinker International, Inc ., 296 Conn. 426, 433, 994 A.2d 1265 (2010) ("[b]ecause [e]very word and phrase [of a statute] is presumed to have meaning . [a statute] must be construed, if possible, such that no clause, sentence or word shall be superfluous, void or insignificant" [internal quotation marks omitted] ). In addition, other provisions in title 13b of the General Statutes, which governs the powers of the commissioner, similarly indicate that the legislature intended for facilities to refer to tangible assets. See, e.g., In re Williams D ., 284 Conn. 305, 313, 933 A.2d 1147 (2007) ("[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] ). The term "facilities" is often paired with other tangible objects throughout title 13b, as in § 13b-36 (a). See, e.g., General Statutes § 13b-34 (a) (referencing "equipment or facilities"); General Statutes § 13b-34 (h) (referencing "transportation equipment and facilities"); General Statutes § 13b-56 (referring to "facilities and structures" and "structures and facilities"). Most significantly, in many instances, the legislature has used the term "facilities" in a manner that would be coherent only if "facilities" meant a tangible asset. For example, General Statutes § 13b-4d (b) allows the commissioner to declare a state of emergency "[w]hen a privately-owned railroad system, its facility or equipment is damaged as a result of a natural disaster ." General Statutes § 13b-32 sets forth the general transportation policy of the state favoring "[t]he development and maintenance of a modern, efficient and adequate system of motor and rail facilities ." General Statutes § 13b-38 allows the commissioner to make loans to transit districts "to help the transit district to plan, research, construct, reconstruct, subsidize, operate or maintain transit systems, including property, equipment and facilities ." General Statutes § 13b-101 (3) (B) exempts from regulation certain livery services to and from "a location or facility which is not open for business on a daily basis throughout the year ." General Statutes § 13b-283 (e) empowers the commissioner to order any utility company to "readjust, relocate or remove its facility ." In each of these instances, the use of the word "facility" evokes a tangible asset used in transportation systems, and it would be absurd to apply these statutes to include an intangible operating right. It would, after all, be nonsensical for the statutes to call for the construction or relocation of an operating right or to refer to a certificate being open for business. When, as in the present case, a word is used multiple times in a statutory scheme, we presume that the legislature intended each use of the word to have a common meaning. See, e.g., In re Jusstice W ., 308 Conn. 652, 664-65, 65 A.3d 487 (2012). Consequently, even if the definition of "facilities," standing alone, could encompass the certificates at issue, construing that term in context calls for a more restricted meaning. Therefore, reading the term "facilities" in context, as it is used in § 13b-36 (a) and other provisions in title 13b of the General Statutes, convinces us that the legislature did not intend for the term to refer to intangible operating rights reflected in the certificates at issue. Indeed, a related statutory scheme demonstrates that, when the legislature intended for a delegation of takings power to allow for the acquisition of a bus company's operating rights, the legislature granted that power explicitly. Like the commissioner, transit districts have power to regulate and provide bus service. Like the commissioner, transit districts also have been granted certain eminent domain powers. Specifically, General Statutes § 7-273e (a) empowers a transit district to use eminent domain to "acquire all or a portion of the property and franchises of any company or companies operating a transit service in the district ." (Emphasis added.) Unlike the term "facilities," the meaning of the term "franchise" expressly includes a government conferred operating right. See Webster's Third New International Dictionary, supra, p. 902 (defining "franchise" as "a right or privilege conferred by grant from a sovereign or a government and vested in an individual or a group" and, more specifically, as "a right to do business conferred by a government"). No similarly clear language authorizing the taking of a company's operating rights appears in the statutes governing the commissioner's eminent domain powers, further indicating that the legislature did not intend for his takings power to extend to the certificates at issue. See, e.g., State v. B.B. , 300 Conn. 748, 759, 17 A.3d 30 (2011) ("[when] 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" [internal quotation marks omitted] ). C The commissioner argues, however, that, even if the power to condemn the certificates is not explicit in the statute, it is implicit in his express power to take any land, buildings, equipment or facilities of a bus company, and in his incidental powers to improve transportation systems in this state. See General Statutes § 13b-23. According to the commissioner, if he can take all of the bus company's tangible assets, then, it follows, he also may condemn their operating rights. We disagree. A delegation of eminent domain power must be clearly given and strictly construed; see, e.g., Northeast ern Gas Transmission Co. v. Collins , supra, 138 Conn. at 592, 87 A.2d 139. A clear delegation is not expressly granted or clearly implied either in the specific grant of eminent domain power in § 13b-36 (a) or in the commissioner's incidental powers in § 13b-23. Even though we conclude that the commissioner does not have authority to condemn the certificates, his inability to condemn the certificates at issue does not render meaningless his takings power as applied to bus companies. He retains the power to suspend or revoke certificates for cause; see General Statutes § 13b-80 ; and his takings power supplement his power to suspend or revoke the certificates. If the commissioner should need to revoke a bus company's certificate for poor performance and choose to have the state or another company operate over certain bus routes, § 13b-36 (a) also permits him to take the bus company's tangible assets for use in continuing to provide bus service, albeit with a different operator. Moreover, it is not absurd to conclude that the legislature gave the commissioner the power to take tangible items needed for a transportation system but not a bus company's operating rights given that, at the time the legislature enacted § 13b-36 (a), the commissioner did not have the power to regulate bus companies or their certificates. When the legislature enacted § 13b-36 (a) in 1969; see Public Acts 1969, No. 768, § 30; the power to issue certificates of public convenience and necessity to bus operators was then held by the DPUC's predecessor agency, the Public Utilities Commission. See General Statutes (Supp. 1969) § 16-309; General Statutes (Rev. to 1966) § 16-312a. Although the legislature allowed the commissioner to be heard at hearings concerning these certificates, it did not grant the commissioner power to issue, suspend, or revoke them. See General Statutes (Supp. 1969) § 13b-37. Moreover, when the legislature enacted § 13b-36 (a), the commissioner also had no power to regulate bus service, such as by setting fares, routes or schedules. That power was held instead by the Public Utilities Commission and the transit districts. See General Statutes (Rev. to 1966) § 7-273d ; General Statutes (Supp. 1969) § 16-309; General Statutes (Rev. to 1966) § 16-312a. Given that the commissioner had no power to regulate either the certificates or the services provided by bus companies when § 13b-36 (a) was enacted, it would not be absurd for the legislature to allow the commissioner to take tangible items necessary to improve transportation systems but not to condemn rights that he was not otherwise expressly permitted to grant or regulate. When the power to issue certificates and regulate bus service was transferred to the commissioner in 1979; see P.A. 79-610, § 9; the legislature updated many of the statutes pertaining to the regulation of bus service to reflect the commissioner's new role but, significantly, did not amend § 13b-36 (a). Although transit districts have been expressly given the power to take operating rights; see General Statutes § 7-273e ; no such specific authority has been given to the commissioner after the legislature granted him oversight over bus service. The legislature may ultimately deem it good policy for the commissioner to have the power to condemn certificates, but we conclude that the legislature has not yet granted that power to the commissioner. We therefore conclude that the trial court improperly granted the commissioner's motion for summary judgment and that it improperly denied the plaintiffs' motion. This conclusion requires us to consider the appropriate remedy. In their complaint, the plaintiffs sought an injunction from the trial court preventing the commissioner from (1) condemning the certificates, and (2) operating any buses over the plaintiffs' designated routes. In their arguments to this court, the plaintiffs have argued that such relief is proper and necessary to protect their rights in their certificates. Nevertheless, the issue of whether an injunction is necessary in addition to a judgment, and the precise parameters of any injunction, have not been considered by the trial court. In addition, the plaintiffs' request for an injunction barring the commissioner from operating any buses over any of their designated routes may impact the separate, pending litigation concerning the extent of the plaintiffs' operating rights under their certificates, including whether the plaintiffs' rights over those routes are exclusive. That dispute is not before us in the present appeal. Accordingly, we conclude that a decision of whether any injunctive relief is necessary, and the parameters of any injunctive relief, if granted, is a decision that must be made in the first instance by the trial court on remand. The judgments are reversed and the cases are remanded with direction to deny the commissioner's motion for summary judgment, to grant the plaintiffs' motion for summary judgment on the condemnation issue and to render judgment for the plaintiffs on that issue, and to remand the case for further proceedings to determine whether any injunctive relief is necessary and the parameters of any such relief, if granted. In this opinion PALMER, EVELEIGH and VERTEFEUILLE, Js., concurred. ROBINSON, J., with whom McDONALD, J., joins, dissenting I respectfully disagree with the majority's conclusion that the power of the defendant, the Commissioner of Transportation (commissioner), under General Statutes § 13b-36 (a) to take "facilities" via the power of eminent domain does not extend to certificates of public convenience and necessity issued pursuant to General Statutes § 13b-80. I conclude that § 13b-36 (a) allows the commissioner to use the power of eminent domain to take these certificates that grant a bus company, such as the plaintiffs in the present cases, the right to operate a given route on particular roadways. In my view, the majority's reading of § 13b- 36 (a) to the contrary is inconsistent with the statute's plain language, and interferes with the commissioner's charge to promote mass transportation services under General Statutes § 13b-4 and 13b-32. Because I would affirm the judgments of the trial court granting the commissioner's motion for summary judgment in these cases, I respectfully dissent. I agree with the majority's recitation of the underlying facts and procedural history. I also agree with the majority with respect to certain general principles that inform our review, in particular, that, under Gray Line Bus Co. v. Greater Bridgeport Transit District , 188 Conn. 417, 423, 449 A.2d 1036 (1982), the "plaintiffs each hold a property right in their own certificates that cannot be taken by the state without due process of law," namely, revocation or suspension in accordance with § 13b-80, or condemnation under the eminent domain power if delegated to the commissioner by the legislature. See, e.g., Northeastern Gas Transmission Co. v. Collins , 138 Conn. 582, 586-87, 87 A.2d 139 (1952). Moreover, "when [the legislature] delegates to another the power to exercise the right of eminent domain, the extent of the power is limited by the express terms or clear implications of the statute authorizing its exercise." Id., at 592, 87 A.2d 139. Finally, the question before us, namely, whether the commissioner's exercise of the condemnation power was indeed legislatively authorized, presents us with an issue of statutory construction, over which our review is plenary. See, e.g., Kelo v. New London , 268 Conn. 1, 13, 843 A.2d 500 (2004), aff'd, 545 U.S. 469, 125 S.Ct. 2655, 162 L.Ed.2d 439 (2005). "When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply.... In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation." (Internal quotation marks omitted.) Gonzalez v. O & G Industries, Inc. , 322 Conn. 291, 302-303, 140 A.3d 950 (2016). I begin with the text of § 13b-36 (a), which provides: "The commissioner may purchase or take and, in the name of the state, may acquire title in fee simple to, or any lesser estate, interest or right in, any land, buildings, equipment or facilities which the commissioner finds necessary for the operation or improvement of transportation services. The determination by the commissioner that such purchase or taking is necessary shall be conclusive. Such taking shall be in the manner prescribed in subsection (b) of section 13a-73 for the taking of land for state highways." (Emphasis added.) It is undisputed that the certificates at issue in this case must be "facilities" to be subject to condemnation under § 13b-36 (a). Because § 13b-36 (a) does not define the term "facilities," in accordance with General Statutes § 1-1 (a), we look to the term's "commonly approved usage," as ascertained by reference "to the common understanding of the term as expressed in a dictionary." (Internal quotation marks omitted.) State v. Agron , 323 Conn. 629, 635, 148 A.3d 1052 (2016). The dictionary definition of "facilities" is broad and expansive. For example, Merriam-Webster's Collegiate Dictionary (11th Ed. 2003) defines "facility," in relevant part, in the singular as "something that makes an action, operation, or course of conduct easier" or "something (as a hospital) that is built, installed, or established to serve a particular purpose." Another widely used dictionary defines the word "facility" even more broadly as "[s]omething that facilitates an action or process. Often used in the plural." American Heritage College Dictionary (4th Ed. 2007). Consistent with these definitions, the United States Court of Appeals for the Second Circuit has described the word "facilities . as a widely inclusive term, embracing anything which aids or makes easier the performance of the activities involved in the business of a person or corporation." (Emphasis added; internal quotation marks omitted.) Hartford Electric Light Co. v. Federal Power Commission , 131 F.2d 953, 961 (2d Cir. 1942), cert. denied, 319 U.S. 741, 63 S.Ct. 1028, 87 L.Ed. 1698 (1943) ; see also id. (power company's "corporate organization, contracts, accounts, memoranda, papers and other records, in so far as they are utilized in connection with such sales," were "facilities" in interstate commerce subjecting it to jurisdiction of Federal Power Commission). Thus, it is significant to me that nothing in the common definition of the word "facility" limits its use to "tangible assets," as compared to what the majority deems "intangible operating rights." The breadth of the term "facilities" is well demonstrated by the Missouri Supreme Court's decision in Mashak v. Poelker , 367 S.W.2d 625, 628 (Mo. 1963), which considered whether a local juvenile court was legislatively authorized to hire a court administrator pursuant to a state statute providing that " '[a] county may establish medical, psychiatric and other facilities , upon request of the juvenile court, to provide proper services for the court in the diagnosis and treatment of children coming before it and these facilities shall be under the administration and control of the juvenile court.' " (Emphasis in original.) The court held that the phrase "other facilities," as used in the statute, authorized the hiring of the court administrator; it rejected the plaintiff's argument that "the word as used in the context of the statute does not mean a person but instead denotes inanimate rather than human agencies." Id., at 628. In support of this conclusion, the court cited the broad dictionary definition of the term "facilities," a statute authorizing a liberal construction of the juvenile court act to promote the welfare of children, and case law including State ex rel. Knight v. Cave , 20 Mont. 468, 475-76, 52 P. 200 (1898), which held that teachers and their services are "school facilities" for purposes of a tax statute. See Mashak v. Poelker , supra, at629-31. Tellingly, the Missouri Supreme Court rejected the plaintiff's argument founded on ejusdem generis, "that the general words must be restricted to the particular classes or things enumerated," to use "medical" or "psychiatric" to restrict the meaning of "other facilities," observing that doctrine is "an aid to construction and not a positive rule of law and never overrides an intention that is clear." Id., at 630. Given the broad dictionary definition and common usage of the term "facilities," I conclude that the certificates are "facilities" within the meaning of § 13b-36 (a) because they aid or facilitate the operation of the plaintiffs' businesses by granting them rights to operate their buses on the designated routes. Moreover, although it is a "well established proposition that [t]he authority to condemn [is to] be strictly construed in favor of the owner of the property taken and against the condemnor," it similarly is axiomatic that "[t]he statute . should be enforced in such a way as to effectuate the purpose for which it was enacted." (Internal quotation marks omitted.) Kelo v. New London , supra, 268 Conn. at 24, 843 A.2d 500. Given the breadth of the definition of "facilities," an application of the logical principle known as Occam's razor supports a reading of § 13b-36 (a) that, by allowing the condemnation of the certificates, aids the commissioner in executing his statutory mandate to promote and coordinate public transportation in the state, including ventures such as the Hartford-New Britain Busway. See General Statutes § 13b-4 (1), (2), (3) and (4) ; see also General Statutes § 13b-11b (a) (3) (requiring commissioner to develop and report strategy for, inter alia, "increas[ing] the use of public transportation and ride sharing so that at least ten per cent of all trips between home and places of employment occur in vehicles occupied by more than one person by the year 2000"). To read § 13b-36 (a) otherwise would be to foster the impermissibly bizarre result of handcuffing the commissioner by allowing him to take a bus company's fleet or buildings, but not its operating rights over a particular route for purposes of consolidation or combination of routes, including for the purpose, as in this case, of lowering the state's transit subsidy expenses by allowing for those new routes to be competitively bid on the open market. To this end, the statutory scheme demonstrates the legislature's intent that the commissioner's powers be expansive, insofar as General Statutes § 13b-23 affords the commissioner "incidental" powers to supplement the "express powers" granted by statute as "necessary or proper for the effective performance of [the commissioner's] powers and duties." The incidental powers of § 13b-23 are consistent with case law permitting the exercise of eminent domain powers by "clear [implication]" from the statutes, as well as their express terms. Northeastern Gas Transmission Co. v. Collins , supra, 138 Conn. at 592, 87 A.2d 139. Accordingly, I conclude that § 13b-36 (a) authorized the commissioner's exercise of the power of eminent domain over the plaintiffs' certificates. The majority, however, views the statutory scheme differently, notwithstanding the commissioner's charge with respect to the promotion of mass transit and the expansive powers by which he can accomplish that legislatively declared public policy goal. I emphasize my specific disagreement with the majority's reliance on the statutory scheme governing transit districts; see General Statutes § 7-273b et seq. ; and specifically General Statutes § 7-273e (a), which gives transit districts the power of eminent domain over bus companies' "property and franchises ." Particularly given that eminent domain powers may be granted to the commissioner by clear implication; see Northeastern Gas Transmission Co. v. Collins , supra, 138 Conn. at 592, 87 A.2d 139 ; I believe that the transit district statutes support a reading of § 13b-36 (a) that gives the commissioner the right to take the certificates. I begin with the majority's textual arguments in connection with the transit district statutes, which the majority uses, in conjunction with the maxim that "[w]here 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"; (internal quotation marks omitted) State v. B.B. , 300 Conn. 748, 759, 17 A.3d 30 (2011) ; in support of the proposition that "when the legislature intended for a delegation of takings power to allow for the acquisition of a bus company's operating rights, the legislature granted that power explicitly." Although this argument, at first glance, seems compelling, a closer examination of the statutes cited by the majority reveals that this principle is inapplicable. In particular, § 7-273e (a), relied on by the majority, expressly grants transit districts the power to "acquire all or a portion of the property and franchises of any company or companies operating a transit service in the district ." (Emphasis added.) In my view, the comparison urged by the majority fails because the legislature did not use the term "facilities" in addition to the word "franchises" in its grant of the eminent domain power in § 7-273e (a), instead using the term "property" therein to encompass both real and personal property. In contrast, I read § 13b-36 (a) to refer illustratively to tangible real and personal property by using the terms "land, buildings, [and] equipment" prior to employing the catch-all term "facilities" to describe all other types of property subject to acquisition. Put differently, had the legislature used the word "facilities" in addition to "franchises" in § 7-273e (a), that statute would be far more persuasive evidence that the legislature did not intend the term "facilities" as used in § 13b-36 (a) to encompass operating rights. Moreover, allowing transit districts, but not the commissioner, to take operating franchises runs afoul of the precept of "legislative consistency," namely, that the "legislature is always presumed to have created a harmonious and consistent body of law," thus requiring us to look "to the broader statutory scheme to ensure the coherency of our construction." (Internal quotation marks omitted.) Sokaitis v. Bakaysa , 293 Conn. 17, 23, 975 A.2d 51 (2009). This principle of legislative coherence remains paramount, despite the fact that § 13b-36 (a) and the transit district statutes were, as the majority observes, enacted at different times. See Commission on Human Rights & Opportunities v. Board of Education , 270 Conn. 665, 688 n.22, 855 A.2d 212 (2004). Examination of the statutory scheme reveals that it would be particularly incoherent to grant transit districts greater power than is afforded the commissioner because the commissioner has statewide responsibility over transportation matters and transit districts are, as quasi-municipal entities, creatures of the state with only those limited powers that are granted by their enabling statutes, General Statutes § 7-273b et seq. See, e.g., Wright v. Woodridge Lake Sewer District , 218 Conn. 144, 148, 588 A.2d 176 (1991) ; see also In re Westport Transit District , 165 B.R. 93, 97-98 (Bankr. D. Conn. 1994) ("the transit-district enabling statutes cannot be interpreted as generally authorizing [the transit district] to file a [bankruptcy] petition"). Indeed, the statutory scheme expressly contemplates that the transit districts coordinate transit systems in their boundaries in the place of the commissioner, who generally has the authority to modify or overrule the transit districts' decisions should he determine, in an appeal, that they "would affect state-wide transportation policy adversely ." General Statutes § 7-273d. Most tellingly, the statutory scheme governing transit districts specifically contemplates direct oversight by the commissioner over transit districts' taking of operating franchises, with § 7-273e (b) expressly setting forth a detailed procedure by which the commissioner may determine the "[s]uitability" of such a taking. In my view, it would defy the principle of legislative coherency to grant the commissioner direct oversight over transit districts, including in the exercise of their eminent domain powers over operating franchises, while not affording the commissioner those same eminent domain powers in the first instance. Given the plain and unambiguous language of § 13b-36 (a), when viewed in conjunction with the commissioner's expansive charge to implement and promote mass transit, I conclude that the commissioner's power to take "facilities" extends to certificates issued pursuant to § 13b-80. I, therefore, would affirm the judgments of the trial court granting the commissioner's motion for summary judgment. Accordingly, I respectfully dissent. The plaintiffs are Dattco, Inc., Collins Bus Service, Inc., Nason Partners, LLC, and The New Britain Transportation Company. Each brought a separate action against the commissioner to enjoin him from taking their respective certificates, and those actions were consolidated. One court has interpreted the term "facilities" to include a company's operating rights, but the court reached that conclusion because a contrary construction in that case would have rendered the statute at issue unconstitutional. See Mississippi Power & Light Co. v. Clarksdale, 288 So.2d 9, 12 (Miss. 1973) (concluding that statute "[could not] be constitutionally applied in [the] case unless the word 'facilities' [was] construed as including [a power company's] operating rights"). There was no claim in that case that the ordinary meaning of the term "facilities" extended to operating rights. See id., at 11. Certain provisions in title 13b of the General Statutes refer to one form of an intangible facility-a credit facility. See, e.g., General Statutes § 13b-79r (d) (4). But when the provisions of title 13b refer to a credit facility, they do so by pairing the words "credit" and "facility" rather than using "facility" alone. See, e.g., General Statutes § 13b-79r (d) (4). This indicates that, when the legislature intended to refer to an intangible facility, it did so expressly. The dissent would apply a much broader meaning of the term "facilities," relying in significant part on a decision from the Missouri Supreme Court; see Mashak v. Poelker, 367 S.W.2d 625 (Mo. 1963) ; giving a broader meaning to the term "facilities." Significantly, however, that case has little bearing on our decision because it did not involve a delegation of the takings power, and adopting a broad interpretation of the meaning of "facilities" in the face of a more limited interpretation would violate the well established principle that we must strictly construe any delegation of the takings power. Pequonnock Yacht Club, Inc. v. Bridgeport, supra, 259 Conn. at 601, 790 A.2d 1178. The commissioner did not cite § 13b-23 as authority for the condemnation in his notices of condemnation issued to the plaintiffs. We will nevertheless briefly address the commissioner's arguments based on this statute because the plaintiffs have not objected to the commissioner's arguments concerning this provision, and, in any event, those arguments are unavailing. The commissioner has also claimed that § 13b-34 (c) also empowers him to condemn the certificates, but we disagree. That provision does not clearly confer eminent domain power but, instead, appears to empower the commissioner to purchase or dispose of property. Notably, that provision does not expressly refer to the commissioner's power to "take" property, as in § 13b-36 (a) ; nor does it prescribe the procedures for instituting a taking, as § 13b-36 (a) does. If § 13b-34 (c) authorizes a taking, as the commissioner claims, we would expect to see procedures for exercising that power, as such procedures would be required to afford a property owner due process of law. General Statutes § 13b-36 (a) provides: "The commissioner may purchase or take and, in the name of the state, may acquire title in fee simple to, or any lesser estate, interest or right in, any land, buildings, equipment or facilities which the commissioner finds necessary for the operation or improvement of transportation services. The determination by the commissioner that such purchase or taking is necessary shall be conclusive. Such taking shall be in the manner prescribed in subsection (b) of section 13a-73 for the taking of land for state highways." General Statutes § 13b-80 provides in relevant part: "No person, association, limited liability company or corporation shall operate a motor bus without having obtained a certificate from the Department of Transportation or from the Federal Highway Administration pursuant to the Bus Regulatory Reform Act of 1982, P.L. 97-261, specifying the route and certifying that public convenience and necessity require the operation of a motor bus or motor buses over such route . The department may amend or, for sufficient cause shown, may suspend or revoke any such certificate. The department may impose a civil penalty on any person or any officer of any association, limited liability company or corporation who violates any provision of any regulation adopted under section 13b-86 with respect to routes, fares, speed, schedules, continuity of service or the convenience and safety of passengers and the public, in an amount not to exceed one hundred dollars per day for each violation . Any certificate issued pursuant to this section by the Division of Public Utility Control within the Department of Business Regulation prior to October 1, 1979, shall remain valid unless suspended or revoked by the Department of Transportation." The plaintiffs in the civil actions that were consolidated and gave rise to this appeal are DATTCO, Inc., Collins Bus Service, Inc., Nason Partners, LLC, and The New Britain Transportation Company. I recognize that the question of whether operating rights granted by certificates issued pursuant to § 13b-80 are exclusive in nature is currently being litigated in a separate, consolidated civil action pending in the judicial district of New Britain; see DATTCO, Inc. v. Dept. of Transportation, Superior Court, judicial district of New Britain, Docket No. CV-10-6007261-S, 2012 WL 2853566 (June 8, 2012) (54 Conn. L. Rptr. 139 ); which was filed prior to the actions underlying this appeal. By way of background, I note that, in that action, the trial court, Hon. George Levine, judge trial referee, concluded that the operating right conferred by § 13b-80 is exclusive, and continued a previously granted temporary injunction precluding the commissioner from entering into contracts that would permit other bus companies to operate over those routes, portions of which were to be served by CT Fastrak service created in conjunction with the Hartford-New Britain Busway. Id. The parties subsequently entered into a stipulation in that case that permitted the commissioner to execute contracts for the provision of bus service on portions of those routes, and required the commissioner to enter into contracts with the plaintiff DATTCO, Inc. for certain of those routes, thus allowing the commencement of CT Fastrak service. I do not consider in this dissenting opinion whether Judge Levine properly concluded that the operating rights granted by the certificates, issued pursuant to § 13b-80, are exclusive in nature. General Statutes § 13b-4 provides in relevant part: "The commissioner shall have the following general powers, duties and responsibilities: "(1) To coordinate and develop comprehensive, integrated transportation policy and planning to include a long-range master plan of transportation for the state; "(2) To coordinate and assist in the development and operation of a modern, safe, efficient and energy-conserving system of highway, mass transit, marine and aviation facilities and services; "(3) To promote the coordinated and efficient use of all available and future modes of transportation; "(4) To study commuter and urban travel and in cooperation with federal, regional and local agencies and persons to formulate and implement plans and programs to improve such travel; "(5) To study means of providing facilities for parking motor vehicles so as to encourage travel by the combination of motor vehicle and other modes of transportation and in cooperation with federal, regional and local agencies and persons to formulate and implement plans and programs for this purpose ." General Statutes § 13b-32 provides: "Improvement in the transportation of people and goods within, to and from the state by rail, motor carrier or other mode of mass transportation on land is essential for the welfare of the citizens of the state and for the development of its resources, commerce and industry. The development and maintenance of a modern, efficient and adequate system of motor and rail facilities and services is required. The department shall assist in the development and improvement of such facilities and services and shall promote new and better means of mass transportation by land." Other definitions of "facility" in Merriam-Webster's Collegiate Dictionary, supra, are: (1) "the quality of being easily performed"; (2) "ease in performance: APTITUDE"; and (3) "readiness of compliance ." I acknowledge the unpublished decision of the Tennessee Court of Appeals in Lynnwood Utility Co. v. Franklin, Docket No. 89-360-II, 1990 WL 38358, *3-4 (Tenn. App. April 6, 1990), cited by the majority, which held that a sewer utility's "Certificate of Convenience and Necessity" was not a " 'facility' " for purposes of allocating statutorily mandated damages when a municipality elected to provide water services in an area covered by that certificate, but where the utility had never provided services and had no physical plant. The court held that "the term 'facilities' as used in [the utility statute] means physical facilities, not a right to construct physical facilities and not a right to serve an area." Id., at *3. In my view, Lynnwood Utility Co. is distinguishable from the statutory scheme at issue in this case. First, unlike § 13b-36 (a), the Tennessee statute at issue in Lynnwood Utility Co. specifically required the valuation of the " 'facilities' " by the " 'replacement cost' " method, which necessarily contemplates a physical asset. Id., at *4. In contrast, a public utility's operating rights, such as a certificate issued pursuant to § 13b-80, would be valued as a " 'going concern,' " a term that "has sometimes been used broadly to encompass all those factors which contribute to the value of the enterprise apart from its physical assets." Gray Line Bus Co. v. Greater Bridgeport Transit District, supra, 188 Conn. at 422, 449 A.2d 1036 ; see also id., at 428-29, 449 A.2d 1036 (discussing distinction between compensation for taking of franchise itself, and compensation for effects of taking franchise). With respect to other cases, I agree with the majority that the Mississippi Supreme Court's opinion in Mississippi Power & Light Co. v. Clarksdale, 288 So.2d 9 (Miss. 1973), does not directly shed light on the question before us, namely, whether the ordinary meaning of the term "facilities" encompasses exclusive operating rights. The statute at issue in the Mississippi case also is distinguishable because it only uses the term "facilities," without accompaniment by other terms such as "land" or "equipment." Id., at 11. Nevertheless, Mississippi Power & Light Co. does not altogether lack persuasive value, insofar as the Mississippi Supreme Court held that, to be constitutional, a statute authorizing the use of eminent domain to take "facilities" had to be construed to include both a utility's physical facilities and its operating rights, given the value of the franchise and the fact that, without taking those rights, the city could not lawfully use the utility's physical plant to provide electrical services. Id., at 11-12 ; see also id., 12 ("[t]he condemnation of [the utility's] physical property would destroy its franchise rights"). In my view, Mississippi Power & Light Co. suggests that a utility's operating rights are a significant component of its value as a concern, and that an expansive reading of eminent domain statutes in a manner that acknowledges that value is appropriate. Further, Mississippi Power & Light Co. suggests the reasonableness of a statutory interpretation that deems the word "facilities" to include operating rights. Indeed, the majority in this case follows a variant of ejusdem generis, namely, the principle of noscitur a sociis, or that "the meaning of a particular word or phrase in a statute is ascertained by reference to those words or phrases with which it is associated." Staples v. Palten, 214 Conn. 195, 199, 571 A.2d 97 (1990). The majority applies this principle to observe that § 13b-36 (a)"groups the term 'facilities' with three other nouns describing what the commissioner may condemn, namely, 'land, buildings, [and] equipment,' and each refers to tangible objects." In my view, the Missouri Supreme Court's decision in Mashak v. Poelker, supra, 367 S.W.2d at 630, more aptly demonstrates the breadth of the term "facilities," even when used in an apparently more restrictive context. I disagree with the majority's view of the certificates as falling beyond the scope of this very broad definition "because they do not merely 'promote the ease' of the plaintiffs' business but, in fact, authorize it in the first place." Specifically, I disagree with the factual premise of this position. Although the certificates are undoubtedly of great economic value to the plaintiffs' businesses, they do not authorize the plaintiffs' corporate existence as bus companies, and nowhere do the plaintiffs claim that the loss of the certificates will itself put them out of business as a matter of law. "While not specifically treated as a canon of statutory interpretation, Occam's razor is apropos here." American Civil Liberties Union v. Clapper, 804 F.3d 617, 624 n.2 (2d Cir. 2015). "[T]he principle of Occam's razor-that the simplest of competing theories should be preferred over more complex and subtle ones-is as valid juridically as it is scientifically." (Internal quotation marks omitted.) Brodie v. Workers' Compensation Appeals Board, 40 Cal.4th 1313, 1328 n.10, 156 P.3d 1100, 57 Cal.Rptr.3d 644 (2007) ; see also Johnson v. Commonwealth, 412 S.W.3d 157, 168 n.4 (Ky. 2013) (describing fourteenth century origin of Occam's razor, as logical " 'law of parsimony,' " in William of Ockham's " 'Commentary on the Sentences' "). I acknowledge the majority's reliance on the revocation provisions of § 13b-80 in support of its contention that the commissioner's "inability to condemn the certificates at issue does not render meaningless his takings power as applied to bus companies. He retains the power to suspend or revoke certificates for cause; see General Statutes § 13b-80 ; and his takings power supplement his power to suspend or revoke the certificates. If the commissioner should need to revoke a bus company's certificate for poor performance and choose to have the state or another company operate over certain bus routes, § 13b-36 (a) also permits him to take the bus company's tangible assets for use in continuing to provide bus service, albeit with a different operator." I believe the majority's reliance on the revocation provisions of § 13b-80 is inapposite because, under that section, no compensation would be due should there be a substantiated finding of, for example, poor bus service that would justify revocation for "cause." Here, the property right is being taken by eminent domain for the public use, for which no such cause is necessary-only the payment of just compensation for the taking. General Statutes § 13b-23 provides: "The commissioner shall have such additional powers, incidental to the express powers granted under this chapter and title 13a, as may be necessary or proper for the effective performance of his powers and duties." I agree with the majority that § 13b-23 does not, by itself, provide the requisite authority, via "express terms or clear implications"; Northeastern Gas Transmission Co. v. Collins, supra, 138 Conn. at 592, 87 A.2d 139 ; to sustain the taking of the plaintiffs' certificates. Nevertheless, I believe that the legislature's grant of incidental powers to the commissioner in § 13b-23 counsels us to adopt an interpretation of the takings power under § 13b-36 (a) that is as broad as the statutory text will allow. General Statutes § 7-273e (a) provides in relevant part: "If the directors deem it necessary to preserve or to develop a transit system, the district may establish, operate and maintain a transit system within the district or between the district and any municipality contiguous with its service area with which it contracts to furnish transit service, and for this purpose may establish a new system, or may acquire all or a portion of the property and franchises of any company or companies operating a transit service in the district, including that portion of the property and franchises used for operation within the district and also that portion of the property and franchises which is used outside the district but which is integrated into the service provided in the district...." (Emphasis added.) I similarly disagree with the majority's reliance on the use of the term "facilities" in General Statutes § 13b-56, which governs harbor improvement projects, for the proposition that the legislature understands the term "facilities" only to embrace tangible items such as a bridge. That statute is distinguishable because it uses the term "facilities and structures" to expand a list of authorized harbor improvement projects that include "berthing areas, channels to berthing areas, sea walls, piers, docks, navigation aids, bridges and other related facilities and structures ." General Statutes § 13b-56. General Statutes § 7-273d provides in relevant part: "Upon written notice to the Department of Transportation, to the chief executive officer of a private transit system, and to the elected chief executive officer of each municipality composing the district, the district, by its board of directors, may assume all powers of the Department of Transportation to regulate and supervise the operation of any such transit system within the district, provided that such transit system would be subject to the supervision of the department except for this section. Upon assuming such supervision the district, by its board of directors, shall establish passenger fares and any other rates to be charged and shall establish service standards, may order abandonment of uneconomic routes and shall exercise all powers of regulation and supervision over such transit system as are conferred on the department by title 16, in the same manner and under the same standards as are established by said title 16. Any company, town, city, borough, corporation or person aggrieved by any order, authorization or decision of the board of directors, except an order, authorization or decision approving the taking of land, in any matter to which he or it was or ought to have been made a party, may appeal therefrom to the department within thirty days after the filing of such order, authorization or decision . Where the department determines that the order, authorization or decision of the transit district would affect state-wide transportation policy adversely, such order, authorization or decision may be modified or overruled ." General Statutes § 7-273e (b) provides: "In order to insure the continuance of adequate transit services when it appears that the holder of the franchise is or will be incapable of continuing to offer satisfactory service to meet present or future public passenger transportation requirements and it is improbable that such franchise will be sought by any other private concern, the Department of Transportation, on its own initiative, may or, on request of the transit district or the legislative body of one or more municipalities in the area served, shall fix a time and place for a hearing as to whether such franchise is suitable for acquisition by a transit district. Said department shall give written notice of such hearing to the board of selectmen of each town, or in the case of cities and boroughs to the chief executive of each, within the area not less than fourteen days prior to such hearing, and shall cause to be published twice, not more than fourteen nor less than seven days prior to such hearing, notice of such hearing in a newspaper or newspapers having a substantial circulation in each municipality within such area. Suitability of a franchise for acquisition by a transit district shall be determined from the following considerations: (1) That public convenience and necessity require the continuance of transit service within the area, (2) that the present franchise holder is or will be incapable of continuing to offer satisfactory service, (3) that it is improbable that such franchise will be sought by a private concern and (4) that continuance of transit service may require the operation of such service by a transit district. After a public hearing thereon and consideration of the above-mentioned factors, the department may declare such franchise suitable for acquisition by a transit district, provided such declaration shall not affect the authority of the municipalities in the area to establish such a district. Ability to offer satisfactory service shall be based upon the financial stability of the franchise holder as determined from past, current and projected net income and from an estimate of financial ability to meet future public passenger transportation requirements in the area. The department may make periodic inspections of transit system franchise holders to determine the financial stability of each and for this purpose may examine the books, accounts and other pertinent documents of such franchise holders and shall have the power to compel the attendance of witnesses and the production of books, accounts and other pertinent documents by the issuance of a subpoena. With the written consent of the chief executive officer of each municipality within the area served, the district and the transit system franchise holder may execute an agreement to waive the holding of a hearing by the department, as described in this subsection and may exercise its power to acquire real property and interests and rights in real property in accordance with subsection (c) of this section." See also General Statutes § 7-273e (c) (setting forth procedure for taking of real property by transit district "subject to the prior approval of the legislative body or bodies of the municipality or municipalities in which the real property is located").

12488858

CONNECTICUT LIGHT AND POWER COMPANY v. Gary PROCTOR

Conn. Light & Power Co. v. Proctor

2016-12-28

SC 19531

470

488

152 A.3d 470

152

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

2021-09-08T21:16:17.237805+00:00

Fastcase

CONNECTICUT LIGHT AND POWER COMPANY v. Gary PROCTOR

CONNECTICUT LIGHT AND POWER COMPANY v. Gary PROCTOR SC 19531 Supreme Court of Connecticut. Argued September 19, 2016 Officially released December 28, 2016 Derek V. Oatis, for the appellant (defendant). Alexander G. Snyder, Waterbury, for the appellee (plaintiff). Rogers, C.J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson, Js. December 28, 2016, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

9983

61463

McDONALD, J. The sole issue in this certified appeal is whether the trial court properly found that the defendant, Gary Proctor, manifested assent to enter into an implied in fact contract with the plaintiff, Connecticut Light and Power Company, for the provision of electric services to a third party. We conclude that the Appellate Court properly determined that the trial court's finding that the parties had entered into an implied in fact contract under which the defendant would be responsible for payment for those services was not clearly erroneous. Connecticut Light & Power Co . v. Proctor , 158 Conn.App. 248, 256, 118 A.3d 702 (2015). Accordingly, we affirm the judgment of the Appellate Court. The record reveals the following undisputed facts and procedural history. Prior to June, 2008, the defendant was employed by Avicula of America as general manager of its poultry business conducted on a farm leased by Avicula at 44 Upper Butcher Road in Ellington (farm). In June, 2008, Avicula sold the business to Robert Chan, Eastern Poultry Distributors, LLC, and Pedigree Chicks, LLC, who continued to operate the business at that site. The defendant was retained by Pedigree Chicks on a part-time basis to facilitate the transition. As part of that transition, the defendant was asked to set up an account for electric services for the new business. After the defendant contacted the plaintiff, it provided such service to the farm under an account in the defendant's name until August 20, 2009, at which time service was disconnected for non-payment. In December, 2011, the plaintiff brought the present action against the defendant for breach of an implied contract and unjust enrichment, alleging that it had provided electric services to the defendant at his request and that $14,620.51 in bills remained outstanding. The matter proceeded to a bench trial. The plaintiff proffered testimony from two of its representatives and documentary evidence. The defendant proffered his own testimony and no other evidence. The plaintiff's primary witness, Jennifer Dupuis, who had experience monitoring delinquent accounts for the plaintiff, testified regarding the plaintiff's internal procedures for the creation and maintenance of its electric services accounts. She testified that whenever there are communications between the plaintiff and a prospective customer or a customer with an existing account, a notation is made in the plaintiff's internal computer system documenting the event. These notations, according to Dupuis, are made during or shortly after the event described therein. With that foundation, the plaintiff introduced internal records documenting its communications with the defendant through Dupuis. Although Dupuis had no personal knowledge of these communications, she was able to explain the meaning of certain abbreviated terms or terms of art used by the plaintiff's representatives in the ordinary course of business to document these interactions. The internal records reflect that the defendant first contacted the plaintiff in August, 2008, regarding electric services for the new business. The representative who received the "service inq[uiry]" noted that "[the defendant] has the business Ped[i]gree Chicks ." The record further noted that Pedigree Chicks was not registered with the Connecticut Secretary of the State state), which Dupuis explained was a requirement for establishing a commercial account. The defendant informed the representative that he did not want to put the account in his name. The defendant inquired about the balance due from the previous business but was unable to obtain that information because he could not provide Avicula's account number, and informed the representative that he would get in touch with the previous business to get more information. The defendant telephoned the plaintiff again in November, 2008. According to the record of that call, the defendant informed the plaintiff that the "company took serv[ice]" as of June 20, 2008. According to Dupuis, when a prospective customer requests service, the representative always asks from what date the customer wants service to be established under the name of the newly created account. The record indicated that the representative cancelled the bill for the previous customer back to June 20, 2008, processed documentation to have an account set up, verified a mailing address, sent an application, and quoted a deposit of $2520. Contemporaneous with the creation of that record, the plaintiff generated a "customer maintenance page" displaying the defendant's first name, middle initial, and last name, his home and cell phone numbers, and his Social Security number. Dupuis testified that such information would be obtained only if the customer was "knowingly [accepting] personal responsibility for an account ." The maintenance page indicated that the "legal entity" for which services were to be provided is a "proprietorship" for the defendant, with the defendant's name as the only entry in the field for "Responsible Parties." The page also denoted that the defendant was doing business as Pedigree Chicks with the farm's address listed as the service address. Pedigree Chicks was still not registered with the state at this time or any relevant time thereafter. The defendant received at his home address a document entitled "Commercial & Industrial Application for Service" designated for a "PROPRIETORSHIP," which was accompanied by a letter dated November 26, 2008, the same date as the November telephone call. The defendant's name was on the first line of the application under the field for "Account Name." The application listed the defendant's home address as the mailing address for the account and the farm's address as the service address. According to Dupuis, it is the plaintiff's regular practice to verify with each customer to what address he or she wants correspondence to be delivered and that this correspondence would not have been mailed to the defendant's home address unless he had requested it. There was no reference to Chan, Eastern Poultry, or Pedigree Chicks in the application, nor to any addresses associated with any one of them other than the farm. The letter accompanying the application was addressed to the defendant, also noting his home address. The subject field stated "Application for Service-Deposit Required," listed an account number underneath, and the farm's address below the account number. Just as with the application, there was no reference to Chan, Eastern Poultry, or Pedigree Chicks in the letter. As to the content of the letter, it thanked the defendant for his "request" for electric service, indicated that a security deposit was required for the account, for which the defendant would be billed shortly, and asked that he complete and return the application. The defendant neither returned the application nor paid a deposit. There is no record that any bill for a deposit was ever issued in connection with the subject account. Dupuis testified that the plaintiff may-and routinely does-accept oral applications from prospective customers or, at its election, may require a written application as a condition to service. The letter requested that the application be returned within seven days but did not state that receipt of a signed and completed application was a condition to service. According to the plaintiff's records, the defendant telephoned the plaintiff again on January 13, 2009, "because he had not received a billing." Dupuis testified that, in order for a representative to discuss matters relating to an account that had been created, the account holder would have to verify his personal information contained in the plaintiff's internal database. The plaintiff's record of this call first reflects that "order instructions indicate that [the] customer has accepted responsibility for this site as of June 20, 2008." It then indicates that the defendant told the representative that the account should not be in his name because he was "only the manager." The record noted that the representative suggested to the defendant that he should get the company to take over the service, but reminded him that it would have to be registered with the state. The record indicated that the defendant responded that he was immediately "driving to New Jersey (company headquarters) to discuss this property." The plaintiff's records denote a "mailing address change" on the same date as this telephone call with the defendant. According to the plaintiff's records, the next communication was initiated by one of the plaintiff's representatives to the defendant's cell phone in February, 2009, "to find out what the status is of his parent company taking over this service going back to June, 2008." The record indicates that the defendant believed that "they already had" done so and provided a meter number for the account on which they were purportedly paying the bills. The record noted that "they have new billing in 'his' name but have not [received] bills as [the plaintiff has] not processed this move." Dupuis explained that bills are not sent to the new customer until the plaintiff has processed a "move in order," which results in the closing of the current account and the substitution of the new account holder. The defendant identified Eastern Poultry of Brooklyn, New York as the "parent company" and "another company: Pedigree Chicks," with a New Jersey address. The representative noted that the defendant was going to contact the "parent company" one more time. There is no indication in the records that the defendant asked to terminate service under the account. The first bill for the account was not issued until May, 2009. That bill and all subsequent bills for the account were issued in the defendant's name, but mailed to the farm. Dupuis stated that the delay in issuing the first bill resulted from the defendant's purported request to retroactively assume responsibility for services dating back to June 20, 2008, which was a period for which the prior account holder had been billed. The plaintiff never sent the defendant written notification of his responsibility for paying for services, which was in violation of its policies. In August, 2009, the plaintiff disconnected service on the account for nonpayment. The plaintiff thereafter referred the matter to a collections agency, which attempted to collect the debt from the defendant. According to the plaintiff's records, in April, 2010, the defendant called the plaintiff regarding the final bill on the account. The record summarizing this conversation indicated that the defendant said that "he worked for a company that had birds on their farm and needed a name to 'borrow' to have electricity put on so he 'lent' them his name, [but] they never paid the bill ." Dupuis testified that, in her experience making notations in the plaintiff's internal system, words within quotation marks reflect the exact words used by the customer. The plaintiff's representative who received this telephone call, Michelle Messier, testified and confirmed that the quoted words would have been the specific words used by the speaker. In a letter to the plaintiff's collection agency dated seven days after this call, the defendant disputed his responsibility for the debt, asserting that he neither leased nor owned the farm, and merely had been employed by the company that leased the farm. He further stated: "I did not know of any issue until recently regarding this account. . I have no connection to this account except to have been asked by the company I worked for and . Chan to get the [electric] account set up for him as he is out of state. . When I found out that this bill had my name on it, I telephoned [the plaintiff] informing them again, as I had during our first conversation, that this account belongs to [Chan]," listing an address for him in New Jersey. In his testimony, the defendant could not recall the substance of most of the telephone calls with the plaintiff's representatives but he denied setting up the account in his name and authorizing the plaintiff to charge him for services, retroactive or otherwise. He testified that he had served only as a consultant to Chan and Pedigree Chicks for approximately three and one-half months, on a part-time basis, to facilitate the take-over of the poultry business and to set up an electric service account with the plaintiff. He testified that he had been paid expenses only for his efforts. He admitted that opening such an account was beneficial to the continuation of his relationship with Chan. With respect to the various communications with the plaintiff's representatives, the defendant recalled being told during the initial telephone call that he could not establish the account in the name of Pedigree Chicks because it was not registered with the state. The defendant confirmed that the plaintiff's customer maintenance page displayed his correct personal information. When asked on cross-examination if he had provided this information, the defendant replied, "I don't know honestly," "I could have," and "[i]t's possible," and conceded that there was no reason to believe the plaintiff had misappropriated the information from another source. He later testified that his "guess" was that Chan had used his name to open the account after the defendant brought him the application, although he could not say that for a fact. He acknowledged that he did not know whether Chan had his Social Security number but upon further prompting from the plaintiff's counsel testified that it was "very possible" that Chan had misappropriated his personal information. With regard to the application for service, the defendant testified that, upon receiving it: "I got in my car, and I took it directly to . Chan and said, you know, you've got to have this in your name, and you've got to pay the bill, or, you know, pay the application fee." When asked on cross-examination about the April, 2009 telephone call with Messier, the defendant stated that he could not recall whether he had made certain statements reflected in the plaintiff's record of that call. The following exchange then occurred between the plaintiff's counsel and the defendant with regard to one of those statements: "Q. And that that company needed a name to, quote, borrow, quote, to have electricity put on, so he lent them his name. Do you see that part? "A. I do. "Q. Do you recall making that statement? "A. No, I don't. "Q. Is it your position that you did not make that statement or that you can't recall whether you did or not? "A. I can't recall, but I can't imagine I would lend my name knowing that it was going to be billed for electrical service. "Q. Well, do you think you lent your name without knowing that it would be your responsibility to pay the bill? "A. I don't recall lending my name to this. I made it very clear to [Chan] that he needed to fill out the application and pay the bills." The defendant initially testified on direct examination that he first had learned that the bills were in his name in April, 2010, after receiving notification from the collections agency. He admitted on cross-examination that he knew the account was in his name either after he received the application for service in November, 2008, or during the January, 2009 telephone call, which led to the following exchange between the plaintiff's counsel and the defendant: "Q. . You testified that at this point in time, whenever that was, you knew the account had your name on it? "A. Yes. "Q. Did you understand that to mean that you were responsible for the account? "A. No. "Q. Did you understand that [the plaintiff] expected you to be responsible for the account? "A. I don't know how to answer that. I think if it was-you know, I realized it was in my name, and that scared me. I wanted to get out of it. I went down and saw . Chan, and I said, you have got to take this over, and he said he would take care of it, and I never heard anything different from then on, so I assumed he was paying the bills. "Q. Did you ever tell [the plaintiff] to terminate the account? . "A. No, I didn't because I thought it was still ongoing. I thought he was paying for it. I had no idea it was in my name still." On the basis of the aforementioned evidence, the trial court rendered judgment for the plaintiff on the first count of breach of an implied contract and for the defendant on the second count of unjust enrichment. In support of the judgment on the implied contract count, the court made the following findings: "The property was utilized as a business enterprise known as 'Pedigree Chicks,' which was not registered as a business with the [state]. Pedigree Chicks was a poultry operation and [the defendant] was a part-time employee who, at the time, worked about three hours a day twice a week. "The owner of the business (which was just starting up in June, 2008) was a gentleman from New Jersey named 'Chan.' At that point in time [the defendant] (rather naively) called [the plaintiff] to arrange for electrical service for the poultry business. [Chan] was not present at the trial . "When [the defendant] finally realized [that] he was being billed he drove to New Jersey and met with [Chan], trying to persuade him to take responsibility for the [plaintiff's] bill. That effort was unsuccessful . "[The defendant] was of the opinion that he was doing [Chan] a favor by arranging for electrical service, but [the plaintiff] had [the defendant's] name, his Social Security number, and his home address on the application form. [The defendant] never asked to close off the account and [the plaintiff] complied with public utility regulations in its handling of the account. "While the court is sympathetic to [the defendant's] plight the court finds there was an implied contract entered into by [the defendant] with the plaintiff. [The defendant] mistakenly relied on [Chan] to pay the electrical bills." The court awarded the plaintiff $14,620.51, covering the entire amount of unpaid bills. The defendant appealed from the trial court's judgment, and the Appellate Court affirmed the judgment. Connecticut Light & Power Co. v. Proctor , supra, 158 Conn.App. at 256, 118 A.3d 702. The Appellate Court observed that, although the trial court did not state so expressly, it had found a contract implied in fact, not implied in law. Id. ; see also id., at 249 n.1, 118 A.3d 702. The Appellate Court held that the defendant had failed to establish that the trial court's finding that an implied in fact contract existed was clearly erroneous under either prong of the clear error standard. Id., at 256, 118 A.3d 702. We thereafter granted the defendant's petition for certification to appeal from that judgment. Connecticut Light & Power Co. v. Proctor , 319 Conn. 905, 122 A.3d 639 (2015). The defendant asserts that the trial court's finding that an implied in fact contract existed was clearly erroneous because (a) it was contrary to the evidence showing that he had made explicit his intention not to have his name on the account, and (b) the plaintiff deviated from its own procedures by rendering service prior to its receipt of the application for service or a security deposit and by failing to give written notification that he was being billed for such service. He also asserts that the trial court's subordinate findings of fact are legally insufficient to establish the ultimate issue of fact of the existence of an implied in fact contract. We disagree. It is well settled that the existence of an implied in fact contract is a question of fact for the trier. See Simmons v. Simmons , 244 Conn. 158, 187, 708 A.2d 949 (1998) ; see also Rahmati v. Mehri , 188 Conn. 583, 587, 452 A.2d 638 (1982) ("[w]hether and on what terms a contractual commitment has been undertaken are ultimately questions of fact"). Accordingly, our review is limited to a determination of whether the decision of the trial court 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. . 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.) Stevenson Lumber Co.-Suffield, Inc. v. Chase Associates, Inc. , 284 Conn. 205, 216-17, 932 A.2d 401 (2007) ; accord Bender v. Bender , 292 Conn. 696, 728-29, 975 A.2d 636 (2009). With respect to implied in fact contracts, we have recognized that "[w]hether [a] contract is styled express or implied involves no difference in legal effect, but lies merely in the mode of manifesting assent." (Internal quotation marks omitted.) Boland v. Catalano , 202 Conn. 333, 337, 521 A.2d 142 (1987). "A true implied [in fact] contract can only exist [however] where there is no express one. It is one which is inferred from the conduct of the parties though not expressed in words." (Internal quotation marks omitted.) Janusauskas v. Fichman , 264 Conn. 796, 804, 826 A.2d 1066 (2003) ; see also Hydro-Hercules Corp. v. Gary Excavating, Inc. , 166 Conn. 647, 652, 353 A.2d 714 (1974) ("[t]he intention of the parties manifested by their words and acts is essential to determine whether a contract was entered into and what its terms were" [internal quotation marks omitted] ). "A contract implied in fact, like an express contract, depends on actual agreement." (Internal quotation marks omitted.) Coel h o v. Posi-Seal International, Inc. , 208 Conn. 106, 111, 544 A.2d 170 (1988) ; see also Hoffman v. Fidelity & Casualty Co. of New York , 125 Conn. 440, 443-44, 6 A.2d 357 (1939) (if parties' "minds have never met, no contract has been entered into by them"). However, "[i]t is not fatal to a finding of an implied contract that there were no express manifestations of mutual assent if the parties, by their conduct, recognized the existence of contractual obligations." (Internal quotation marks omitted.) Janusauskas v. Fichman , supra, 264 Conn. at 805, 826 A.2d 1066 ; see also Therrien v. Safeguard Mfg. Co. , 180 Conn. 91, 94-95, 429 A.2d 808 (1980) (plaintiff has burden of proving that defendant "agreed, either by words or action or conduct, to undertake [some] form of actual contract commitment"). Thus, "conduct of one party, from which the other may reasonably draw the inference of a promise, is effective in law as a promise." 1 R. Lord, Williston on Contracts (4th Ed. 2007) § 4:2, pp. 344-46. "As long as the conduct of [the] party is volitional and that party knows or reasonably ought to know that the other party might r easonably infer from the conduct an assent to contract , such conduct will amount to a manifestation of assent." (Emphasis added.) Id., pp. 352-53; accord 1 Restatement (Second), Contracts § 19 (2) (1981). In the traditional terms of offer and acceptance, when a "request is made under such circumstances that a reasonable person would infer an intent to pay for them . the request amounts to an offer, and a contract is created by the performance of the work." (Internal quotation marks omitted.) Butler v. Solomon , 127 Conn. 613, 615, 18 A.2d 685 (1941). We have recognized, consistent with that principle, that "[a]n implied [in fact] contract would arise if the plaintiff rendered services, at the request of the defendant, under an expectation that they were to be paid for and if the defendant either intended to pay for them or the services were rendered under such circumstances that the defendant knew, or, as a reasonable person, should have known, that the plaintiff did expect payment." Id. ; see also Charter Oak Estates, Inc. v. Kearney , 160 Conn. 522, 531-32, 280 A.2d 885 (1971) ; Casey & Hurley v. McFarlane Bros. Co. , 83 Conn. 442, 443, 76 A. 515 (1910) ; Weinhouse v. Cronin , 68 Conn. 250, 253, 36 A. 45 (1896). It is of particular relevance in this case that "[t]he question . is not whether the defendant in fact expected to pay for the services but whether they were rendered under such circumstances that the defendant either knew, or as a reasonable man, should have known, that the plaintiff expected compensation." Butler v. Solomon , supra, at 616, 18 A.2d 685 ; accord Casey v. McFarlane Bros. Co. , supra, at 443, 76 A. 515 ; cf. Cecio Bros., Inc. v. Greenwich , 156 Conn. 561, 568, 244 A.2d 404 (1968). With these principles in mind, we turn to the Appellate Court's conclusion that the trial court's finding of an implied in fact contract was not clearly erroneous. We recognize, as an initial matter, that the trial court's subordinate factual findings are not as clear or as detailed as might be expected for such a fact intensive determination. Nevertheless, certain essential subordinate findings are necessarily implicit in those expressly made. For example, the logical implication of the trial court's finding that the defendant "rather naively" telephoned the plaintiff to arrange electric service for the farm is that the defendant set up the account in his own name. Moreover, the finding that the defendant "mistakenly relied" on Chan to pay the bills necessarily implies that the defendant knew or should have known he would be held responsible for paying the electric bills if Chan did not. It is also apparent that the trial court credited the plaintiff's records as an accurate reflection of the communications with the defendant. Indeed, the trial court's findings indicate that, except for those limited instances in which the defendant's testimony directly contradicted those records, the court credited his testimony. Finally and significantly, this is a case in which the defendant did not directly dispute most of the plaintiff's evidence. When asked whether he had made certain statements or undertaken certain actions reflected in the plaintiff's evidence, the defendant did not unequivocally deny having said or done such things. Instead, he most often stated that he could not recall having done so and effectively conveyed that it was possible but not likely that he had done so. Thus, we are not compelled to remand the present case to the trial court for an articulation of its decision. See, e.g., State v. Lafferty , 191 Conn. 73, 76-77, 463 A.2d 238 (1983) (articulation necessary where trial court failed to make requisite finding of fact); Kaplan v. Kaplan , 185 Conn. 42, 46, 440 A.2d 252 (1981) (articulation necessary where trial court denied motion without providing any oral or written basis for decision). Before commencing our analysis of whether the finding of an implied in fact contract was clearly erroneous, we observe that the defendant has not advanced a claim that, even if such a contract were found to exist, his liability thereunder is more limited than that found by the trial court. Therefore, our review is limited to the question of whether an implied in fact contract for electric service ever existed. See footnote 6 of this opinion. The record supports the trial court's finding that the defendant requested that the plaintiff establish an account for the provision of electric service to the farm. The defendant admitted that Chan and his former employer had asked him to create an account with the plaintiff. He also conceded that, consistent with the plaintiff's internal record, he had made the initial call in August, 2008, for that purpose. The evidence supports a conclusion that the defendant telephoned again on November 26, 2008, and that, as a result of the discussion that ensued, the plaintiff took steps to cancel the bill for the previous account holder and establish a new account for the provision of services at the farm. The plaintiff mailed a letter to the defendant acknowledging his request for service at the farm's address. After receiving the letter and the application for service, the defendant did not contact the plaintiff to inform it either that an account should not have been created or that service should not be provided to the farm. The record also supports the trial court's implicit finding that the defendant knew, or reasonably should have known, that the account was opened in his name. The defendant admitted at trial that, as alluded to in the plaintiff's record of the August, 2008 telephone call, he was informed that the plaintiff would not establish an account in the name of Pedigree Chicks unless it was registered with the state. There is no evidence that the defendant had any reason to believe that Pedigree Chicks had registered at some point thereafter, and Dupuis testified that the company had never been registered as of the time of trial. With knowledge of this impediment, the defendant initiated a second attempt to open an account in November, 2008. The evidence firmly supports the conclusion that, in the course of this communication, the defendant provided the plaintiff with his personal information, including his Social Security number, which the plaintiff would not have elicited unless the defendant had accepted personal responsibility for the account. There is no evidence that anyone other than the defendant communicated with the plaintiff with regard to establishing this account or even that anyone else had this information to give to the plaintiff. There is no evidence that similar identifying information was elicited from, or provided by, the defendant for any other person or entity. As previously indicated, when the defendant received the letter and the application for service in November, 2008, unambiguously showing the account in his name, he did not contact the plaintiff to inform it that there had been an error. Significantly, the plaintiff's records indicate that the defendant admitted in his call with Messier that Pedigree Chicks needed a name to " 'borrow' " so he " 'lent' " his. The defendant did not dispute having made this statement; rather, he thought it unlikely that he would have made it. There is no dispute that the defendant knew that the plaintiff was providing electric service to the farm during the relevant period. The defendant admitted that he had seen the electricity on during the time that he worked for Chan and Pedigree Chicks. The defendant acknowledged that it was his job to establish an account to continue electric service to facilitate the transition after June, 2008. The unpaid bills admitted into evidence establish that the plaintiff provided service to the farm from June, 2008, until August, 2009. The record of the November, 2008 telephone call reflects that the defendant knew electric bills had continued to accrue after Pedigree Chicks took over the farm in June, 2008. The January, 2009 call initiated by the defendant because he had not received a billing necessarily implies that he knew that services were continuing to be provided. The record of the February, 2009 call also shows that the defendant believed that the farm was still receiving service under a specific meter tied to the account. Finally, the record supports a finding that the parties reached an agreement under which the defendant would be billed for services provided to the account in his name until such time as Chan, Pedigree Chicks, or Eastern Poultry properly changed the account over to one of their names. Dupuis testified that the personal information elicited by the plaintiff in the November, 2008 telephone call would not have been obtained unless the prospective customer understood that he would be responsible for obligations on the account. The letter and the application for service sent in November, 2008, to the defendant put the defendant on notice that he alone was responsible for payment on the account by designating him as the sole account holder and the sole "Responsible Part[y]." His home address was also designated as the account's mailing address. The defendant's telephone numbers were the sole contact numbers elicited at the time the account was opened. The defendant's call in January, 2009, to the plaintiff asking why he had not received a bill necessarily implies that he was expecting one. Finally, it is even questionable whether the defendant subjectively believed that opening the account in his name would not subject him to liability on the account. The defendant admitted that he was "scared" when he found out the account was in his name and that he "wanted to get out of it," reactions that belie such a subjective understanding. The defendant's failure to return a completed application for service or to pay the security deposit does not compel a conclusion that the trial court's finding of an implied in fact contract was clearly erroneous. To the contrary, the January, 2009 telephone call initiated by the defendant to inquire why he had not received a bill compels the conclusion that he knew that services were being rendered and that bills were accruing on the account, notwithstanding his failure to submit the application or pay the security deposit. Moreover, although the letter stated that a security deposit was required for the account and requested return of the application, the letter did not state that such actions were a condition precedent to service. Indeed, the security deposit was not due until billed, and no bill ever was issued. We observe that, if the defendant had returned a signed and completed application for service, that fact would establish an express contract, thus eliminating the possibility of a contract implied in fact. Cf. Janusauskas v. Fichman , supra, 264 Conn. at 804, 826 A.2d 1066 ("[a] true implied [in fact] contract can only exist . where there is no express one" [internal quotation marks omitted] ). We also are not persuaded that the plaintiff's violation of its own policy requiring written notification to a customer of his obligation to pay for services compels a different conclusion. The defendant did not assert a special defense of estoppel. Regardless, there is no evidence that the defendant knew of any such policy and, therefore, relied upon it. Moreover, the defendant's January, 2009 telephone call asking why he had not received bills contradicts a lack of notice in this respect. The mere fact that the bills were sent to the farm address rather than to the defendant's home address is not dispositive on the existence of an implied in fact contract. As indicated previously, the defendant knew that the plaintiff was providing services in accordance with his request. The defendant has asserted no equitable defenses relating to the late notice of the amount of the bills. Moreover, the January and February, 2009 telephone calls indicate that the defendant had actual notice that bills were accruing under the account. It is also unclear who initiated the "mailing address change" on the defendant's account on the same date as the January, 2009 telephone call. The confluence of this change and the defendant's inquiry about billing, in the context of Dupuis' testimony that correspondence would be sent where the customer directed it, would logically support one conclusion-that the defendant's statements indicated that all correspondence should be sent to the farm, which was the service address. Finally, to the extent the defendant's argument may be construed as asserting that there was no meeting of the minds because, subjectively, he never intended to be responsible for the account, that argument mischaracterizes the phrase meeting of the minds. We have recognized, consistent with the objective theory of contracts, that "[t]he making of a contract does not depend upon the secret intention of a party but upon the intention manifested by his words or acts, and on these the other party has a right to proceed." Nutmeg State Machinery Corp. v. Shuford , 129 Conn. 659, 661, 30 A.2d 911 (1943) ; see also Hess v. Dumouchel Paper Co. , 154 Conn. 343, 348, 225 A.2d 797 (1966). Although "[t]he phrase 'meeting of the minds' is . commonly used by the courts to determine whether there has been mutual assent," it has been described as a "misnomer because the minds of the parties to a contract need not, in fact, subjectively meet; rather . objective assent is all that is required." 1 R. Lord, supra, § 3:2, p. 259 n.1; see also Address v. Millstone , 208 Md.App. 62, 82, 56 A.3d 323 (2012), cert. denied, 430 Md. 646, 62 A.3d 731 (2013). The inquiry, therefore, is whether a reasonable person in the defendant's position would have understood that by opening an account in his name with his personal information, he would be responsible for paying the electric bills if a third party neither paid the bills nor took over the account; it is not whether the defendant subjectively and/or unreasonably believed that he would never be held responsible for the bills because he intended for a third party to assume responsibility for the account. We acknowledge that an obvious question exists as to why a part-time, temporary employee of a poultry business would have agreed to place himself in a position where he could be held liable for the farm's electric bills, even if, as the trial court found, the defendant naively believed that Chan would pay the bills. That question may have been answered if the defendant had called Chan as a witness or impleaded Chan, Pedigree Chicks, or Eastern Poultry as a third-party defendant. For reasons that are not apparent from the record, he declined to do so. Nonetheless, the trial court was not bound to determine the defendant's motivation for entering into the agreement with the plaintiff. Our function is not to substitute our own judgment for that of the trier of fact; instead, we must make every reasonable presumption in favor of the trial court's ruling. See Stevenson Lumber Co.-Suffield, Inc. v. Chase Associates, Inc. , supra, 284 Conn. at 216-17, 932 A.2d 401. In light of the record before that court, the Appellate Court properly concluded that the trial court's finding that the defendant " 'rather naively' " entered into an implied in fact contract with the plaintiff; Connecticut Light & Power Co . v. Proctor , supra, 158 Conn.App. at 252, 118 A.3d 702 ; garners sufficient support in the evidence and does not give rise to a firm and definite conviction that a mistake has been committed. The judgment of the Appellate Court is affirmed. In this opinion PALMER, ZARELLA, ESPINOSA and ROBINSON, Js., concurred. EVELEIGH, J., with whom ROGERS, C.J., joins, dissenting. I respectfully dissent. In my opinion, the conclusion reached by the majority misapprehends the significance of the written correspondence sent by the plaintiff, Connecticut Light and Power Company, to the defendant, Gary Proctor, immediately after the November 26, 2008 telephone call. Specifically, I would conclude that the consequence of the plaintiff's written correspondence was to render objectively unreasonable the expectation of the plaintiff that the defendant would pay for the electric service provided to a farm leased by the defendant's employer, Pedigree Chicks, LLC, and located at 44 Upper Butcher Road in Ellington (farm). Accordingly, I would conclude that the Appellate Court incorrectly affirmed the judgment of the trial court because the trial court's finding of an implied in fact contract was clearly erroneous. I agree with the majority's statement of the facts and procedural history. I will set forth additional facts and evidence from the record as necessary. The principles governing implied in fact contracts are well established. "Whether [a] contract is styled express or implied involves no difference in legal effect, but lies merely in the mode of manifesting assent. . A true implied [in fact] contract can only exist [however] where there is no express one. It is one which is inferred from the conduct of the parties though not expressed in words. . Although both express contracts and contracts implied in fact depend on actual agreement . [i]t is not fatal to a finding of an implied contract that there were no express manifestations of mutual assent if the parties, by their conduct, recognized the existence of contractual obligations." (Citations omitted; internal quotation marks omitted.) Janusauskas v. Fichman , 264 Conn. 796, 804-805, 826 A.2d 1066 (2003). "It is a fundamental principle of contract law that the existence and terms of a contract are to be determined from the intent of the parties. . The parties' intentions manifested by their acts and words are essential to the court's determination of whether a contract was entered into and what its terms were." (Internal quotation marks omitted.) Auto Glass Express, Inc. v. Hanover Ins. Co. , 293 Conn. 218, 225, 975 A.2d 1266 (2009) ; see also Otto Contracting Co. v. S. Schinella & Son, Inc. , 179 Conn. 704, 709, 427 A.2d 856 (1980) ("whether a contractual commitment has been undertaken is ultimately a question of the intention of the parties"). I agree with the majority that the inquiry in this case is "whether [the services] were rendered [by the plaintiff] under such circumstances that the defendant either knew, or, as a reasonable man, should have known, that the plaintiff expected compensation." Butler v. Solomon , 127 Conn. 613, 616, 18 A.2d 685 (1941). Generally speaking, the determination of the parties' intent is a question of fact, and our review is limited to whether the decision of the trial court was clearly erroneous. See Auto Glass Express, Inc. v. Hanover Ins. Co. , supra, 293 Conn. at 225, 975 A.2d 1266 ; see also Bristol v. Ocean State Job Lot Stores of Connecticut, Inc. , 284 Conn. 1, 7, 931 A.2d 837 (2007). This court "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 . We cannot retry the facts or pass on the credibility of the witnesses. 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.) Community Collaborative of Bridgeport, Inc. v. Ganim , 241 Conn. 546, 559, 698 A.2d 245 (1997). I do not disagree with the majority that the record supports the finding that when the defendant contacted the plaintiff's representative and provided his personal information that the defendant intended to take personal responsibility for the electric service that would be provided to the farm. But the plaintiff did not simply commence the requested service. To the contrary, the plaintiff sent to the defendant a written correspondence. Where I part ways with the majority is the significance of the written correspondence. The trial court, in its memorandum of decision, ignored the significance of this correspondence in its determination as to whether an implied in fact contract was formed. To me, this correspondence conveyed a clear message to the defendant that he was required to take additional action to establish an account and take responsibility for the electric service provided to the farm. Accordingly, I would conclude that the consequence of the correspondence was such that a reasonable person would believe that the process required for assuming responsibility for electric service was incomplete. Therefore, the plaintiff, by not awaiting the defendant's completion of the application process, did not render services under circumstances in which it would be reasonable for it to expect compensation from the defendant. In the present case, the written correspondence was in two parts: a letter from the plaintiff dated November 26, 2008, the same date as the defendant's telephone call and a partially filled out "[a]pplication for [s]ervice." At the outset, the letter thanks the defendant for his "request for electric service from [the plaintiff]." The very next paragraph recites a requirement of a security deposit for the account. The letter states that the deposit "must be paid promptly" and indicates that the defendant would be billed for it "shortly." Next, the letter refers to the enclosed "[a]pplication for [s]ervice." The letter requests that the defendant complete and return the application for service within seven days either by fax or mail. The letter did not state that the defendant would be held responsible for electric service provided to the farm in accordance with his oral request made during the November 26, 2008 telephone call. Nor did it state that he should be expecting a bill for the provision of electric service. The application for service, in turn, contains several recitals. In relevant part, the recitals include: "The undersigned hereby requests the [plaintiff] to supply service at the address specified above, and/or at any other addressed furnished to the [plaintiff] by the undersigned and which is served by the [plaintiff] . The undersigned also agrees to receive and pay for such service in accordance with the applicable [s]chedule and further agrees to pay for all charges and costs, including reasonable attorney's fees, incurred in collecting sums due to the [plaintiff] for the service rendered to the undersigned. The undersigned also agrees to be responsible for billings to this account, and any other accounts which are established under this exact legal name or entity, until official notification is made to the [plaintiff] to close such account. Any deposit made in connection with this application is subject to revision at any time if usage is greater than that estimated by the undersigned and the [plaintiff]." The top of the application for service contains spaces for the service address, mailing address and account name. These spaces had been previously filled in by the plaintiff with the information presumably provided by the defendant in the November 26, 2008 telephone call. The application for service also contains, inter alia, unfilled spaces for the relevant information of persons with an ownership interest in the business, an indication whether a "DBA certificate" has been filed, and bank references. Finally, at the bottom of the form, there is a signature block and a space requesting a Social Security number following the recital that "I agree to the above conditions and certify the statements are true, accurate and correct." The context of this letter is critical to my conclusion that the trial court's finding was clearly erroneous. The record is devoid of indicia that the plaintiff manifested assent to defendant's request for electric service. The plaintiff's record of the November 26, 2008 conversation reveals little as to communication to the defendant by the plaintiff's representative. To be sure, the record recites internal action that the representative took to begin the process necessary for the account to be set up in the name of the defendant. There is no evidence in the record that this was communicated to the defendant. The record reveals that the representative verified the defendant's mailing address and quoted a deposit in the amount of $2520, but there is no indication that it was represented to the defendant that a deposit was required. Instead, in response to the defendant's request for electric service, the representative "contemporaneously" generated and sent the correspondence with the creation of the account. In the letter and application for service, the plaintiff indicates that the defendant "must" pay the "required" deposit. Additionally, the plaintiff proposed that the defendant, as part of his request for electric service for which he would agree to pay, should also agree to the condition that the deposit would be revised if electricity usage is greater than estimated. In addition, the plaintiff proposed that the defendant agree to be responsible for all charges and costs, including attorney's fees, incident to any collections undertaken by the plaintiff. There is no evidence that the defendant proposed, contemplated, or agreed to such terms in the November 26, 2008 telephone call. Rather, as the plaintiff's letter indicates, the defendant simply requested service. The correspondence to the defendant, taken as a whole, clearly conveys that additional action on the part of the defendant was necessary to complete his application for service. Upon due consideration of the effect of the plaintiff's correspondence, the evidence cited by the majority fails to support a finding of an implied in fact contract. The majority points out that there is no dispute that the defendant knew that the plaintiff was providing electric service to the farm. I am not convinced that, given this set of facts, that the defendant's knowledge regarding electricity service can support an implied in fact contract that he was going to pay for those services. This is also not a case in which the plaintiff began performing services in response to a request by the defendant that it was not already performing. Cf. Butler v. Solomon , supra, 127 Conn. at 614-15, 18 A.2d 685 (defendant asked plaintiff to perform certain work defendant had agreed to perform for third party); Casey v. MacFarlane Bros. Co. , 83 Conn. 442, 443, 76 A. 515 (1910) (defendant asked plaintiff to do additional work in connection with construction of factory). The record reflects, and the majority agrees, that throughout a period starting even before the defendant's abortive attempt to set up an account in August, 2008, the plaintiff was providing electric services to the farm. Consequently, the defendant would have had no basis to know that electricity was being provided to the farm as a result of his request or that the plaintiff expected compensation from him in light of the fact that he did not complete and return the application for service or pay the required deposit. According to the record, in his very first contact with the plaintiff's representative after receiving this correspondence, the defendant expressly stated to the representative that the account should not be in his name. To be sure, the defendant did also inquire about not receiving a bill. This, however, does not, as the majority suggests, "[compel] the conclusion that he knew that services were being rendered and that bills were accruing on the account, notwithstanding his failure to submit the application or pay the security deposit." Indeed, the record reflects that the plaintiff expressly stated in its letter that the defendant would receive a bill for the required deposit "shortly." The defendant had no reason to believe that he would receive a bill for any services provided to the farm given that he did not provide the required deposit and he did not sign and return the application for service. Likewise, evidence of the defendant's subjective knowledge in January and February, 2009, of the plaintiff's intention to bill the defendant for the electric service does not support an implied in fact contract because the defendant did not complete the process indicated by the plaintiff for assuming responsibility for the electric service. A reasonable person would believe, and the defendant did believe, that, upon receipt of the plaintiff's correspondence, there had not yet been a meeting of the minds and that compliance with the plaintiff's request to sign and return the application for service, which included assent to the terms proposed therein, and payment of the required deposit were steps necessary to consummate an agreement. To the extent that the trial court made the necessary implicit subordinate factual finding otherwise, I would conclude that finding was clearly erroneous. The majority's conclusion in the present case allows the plaintiff to have used the correspondence to create the illusion of the power of acceptance in the defendant, while actually retaining for itself the power to proceed with the contract by merely continuing to provide electric services to the farm. The plaintiff's correspondence understandably led the defendant to believe the ball was in his court as to whether to proceed with the contract for service on the terms indicated in the correspondence; it is little wonder that the defendant was "scared" when he found out that the plaintiff intended to hold him responsible for the electric service given he never signed and returned the application to the plaintiff or paid the required deposit. I agree with the majority's observation that if the defendant had completed, signed, and returned the written application for service, that fact would establish an express contract. I disagree, however, with the majority that the plaintiff in the present case could simply continue to furnish electric service thereby creating an implied in fact contract in lieu of its proposed express contract to which the defendant never agreed. On the basis of this evidence, I am left with the definite and firm conviction that a mistake has been committed. Accordingly, I would reverse the judgment of the Appellate Court concluding that the trial court's finding of an implied in fact contract was not clearly erroneous and remand the case to the Appellate Court with instructions to reverse the judgment of the trial court and remand the case to the trial court with direction to render judgment for the defendant. I respectfully dissent. Although the date of this document's creation is not reflected on the printout, Dupuis testified that it would be "created at or near the time of the event," i.e., the date the account was created. That the account was created on November 26, 2008, the day of the telephone call, is plainly reflected in the record of the call indicating that the representative had processed documentation to set up an account and the plaintiff's letter to the defendant dated November 26, 2008, reflecting that an account number had been assigned to the defendant. No such "order instructions" were proffered at trial, or thereafter made a part of the record. Dupuis was never shown the mailing address change entry in this exhibit and asked to explain it. When asked well after this exhibit was discussed as to other entries therein why bills had been sent to the farm address and not to the defendant's home address, Dupuis replied that she did not know. This record also notes that the defendant "understands that we will close order with it in his name." Dupuis explained that closing an order, in the plaintiff's parlance, is synonymous with activating an account. Because it is unclear how this matter was conveyed to the defendant and it is not dispositive in our review of the trial court's ruling, we have disregarded this statement. Although the record of this conversation identified the caller as "George," not Gary, the only reasonable conclusion that can be drawn from the evidence, which the trial court implicitly reached, is that this was merely a scrivener's error. Dupuis' testimony established that the plaintiff's representatives could not discuss an account with the account holder until he had verified his personal information in the plaintiff's system, and could not discuss the account with a third party unless the account holder had authorized the plaintiff to do so. In addition, the summary of the call reflects facts consistent with the defendant's unique circumstances. Finally, in a letter that the defendant wrote to the plaintiff's collections agency dated seven days after this telephone call, the defendant referred to a recent call that he had made to the plaintiff after learning that the bills were in his name, and the fact that he had helped facilitate Chan's takeover of "the flock of chickens housed on this farm ." We have most recently described the test for demonstrating the existence of an implied in fact contract under circumstances wherein the defendant's assent to the contract was manifested in the acceptance of performance. See, e.g., Janusauskas v. Fichman, supra, 264 Conn. at 804-805, 826 A.2d 1066 (implied in fact contract "arises where a plaintiff, without being requested to do so, renders services under circumstances indicating that he expects to be paid therefor, and the defendant, knowing such circumstances, avails himself of the benefit of those services"); see also Vertex, Inc. v. Waterbury, 278 Conn. 557, 574, 898 A.2d 178 (2006). Our earlier case law properly recognized that the defendant's assent to the implied in fact contract could be inferred either when the defendant requests services or when the defendant accepts services with knowledge that the plaintiff expected to be paid for them. See, e.g., Summa v. Dereskiawicz, 82 Conn. 547, 550-51, 74 A. 906 (1909) ; Weinhouse v. Cronin, 68 Conn. 250, 253, 36 A. 45 (1896). The defendant filed a motion for articulation, which the trial court denied. He did not seek review of that denial. Although the trial court should have made a finding as to when the contract was created, as the discussion that follows demonstrates, the evidence establishes that the defendant made an offer in the November, 2008 telephone call, and the plaintiff accepted that offer by opening an account at that time and thereafter providing services in accordance with the defendant's request. Given, however, that the defendant does not independently challenge any specific period of time as not falling within the scope of the implied in fact contract, the precise date of offer and acceptance is not determinative. Thus, to the extent that the defendant claimed that he had informed the plaintiff's representatives in every conversation that he did not want the account in his name, the evidence is to the contrary. The fact that the plaintiff's records do reflect such a comment in the initial August, 2008 call and the January, 2009 call suggests that the plaintiff's representatives understood that such a comment was of significant enough importance that they should memorialize it when stated. In addition, the personal information elicited from the defendant in the second call in November, 2008, is wholly inconsistent with him having made such a statement at that time. As previously noted, the defendant acknowledged that it was possible that he had given this information to the plaintiff. Although he later speculated that Chan could have given this information to the plaintiff, even though the defendant had no knowledge whether Chan had all of this information, the trial court properly would not base a finding on such speculation. See State v. Sunrise Herbal Remedies, Inc., 296 Conn. 556, 572, 2 A.3d 843 (2010) ("[a] person who has no personal knowledge about the subject matter of his or her testimony, i.e., the person is guessing or speculating, is an incompetent witness as to that matter" [internal quotation marks omitted] ). The term implied contract refers to both implied in fact contracts and implied in law contracts. "An implied in fact contract is the same as an express contract, except that assent is not expressed in words, but is implied from the conduct of the parties. . On the other hand, an implied in law contract is not a contract, but an obligation which the law creates out of the circumstances present, even though a party did not assume the obligation . It is based on equitable principles to operate whenever justice requires compensation to be made. . An implied in law contract may arise due to one party being unjustly enriched to the detriment of the other party. . Accordingly, an implied in law contract is another name for a claim for unjust enrichment." (Citations omitted; internal quotation marks omitted.) Vertex, Inc. v. Waterbury, 278 Conn. 557, 573-74, 898 A.2d 178 (2006). This case concerns an implied in fact contract. In the November 26, 2008 call log there is an annotation "UNABLE TO CLS ORDER//PROCESSED CBS REF TO HAVE ACCT SET UP ." The plaintiff's primary witness, Jennifer Dupuis, who had experience monitoring delinquent accounts for the plaintiff, testified that this entry mentioning a "CBS REF" was merely a record that a submission to the billing department was necessary "to close the order to show that the account is now active and being billed on a regular basis." In other words, it was a memorialization of what the plaintiff's representative did. There is also an annotation that the bill was cancelled back to June 20, 2008, for the previous customer.

12488867

John D'AMATO v. Dianne HART-D'AMATO

D'Amato v. Hart-D'Amato

2016-12-13

AC 36849

546

558

152 A.3d 546

152

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-09-08T21:16:17.237805+00:00

Fastcase

John D'AMATO v. Dianne HART-D'AMATO

John D'AMATO v. Dianne HART-D'AMATO AC 36849 Appellate Court of Connecticut. Argued September 9, 2016 Officially released December 13, 2016 Dianne Hart, self-represented, the appellant (defendant). Patrice A. Cohan, with whom was Jeanmarie A. Riccio, for the appellee (plaintiff). Beach, Keller and Bear, Js.

6280

38813

BEACH, J. The defendant, Dianne Hart-D'Amato, appeals from the judgment of the trial court dissolving her marriage to the plaintiff, John D'Amato, and entering related custody and financial orders. The defendant claims that the trial court (1) violated her right to due process when it denied certain motions without a hearing, (2) erred in granting sole legal custody of the minor children to the plaintiff, (3) issued inequitable financial orders, and (4) erred in denying her motions for disqualification of the trial judge. We disagree and affirm the judgment of the trial court. The following facts, as found by the trial court in a comprehensive memorandum of decision, are relevant. The parties were married in 1989. At the time of trial in 2014, the plaintiff was fifty years old and working as a letter carrier for the United States Postal Service. The defendant was forty-nine years old and working as a juvenile probation officer. The plaintiff's work schedule was inflexible. The defendant's schedule was comparatively flexible and she historically had been the primary parental figure in the children's lives. The parties have two children, the first born in 1998 and the second in 2002. At the time of trial, the defendant was residing alone at the marital home in Fairfield and the plaintiff was residing in a condominium in Monroe with the two children. Following a trial, the court issued a memorandum of decision on March 17, 2014. A principal issue in the trial was the defendant's use of alcohol. The court did not credit the defendant's testimony that she did not drink much, although she said that she did use alcohol to cope with an emotionally abusive husband. The court, rather, found that the defendant had abused alcohol for a long period of time, at least since 2006. John Mager, the children's guardian ad litem, testified that the children had reported to him that the defendant had driven while intoxicated with them in the car on more than one occasion. On December 31, 2011, the defendant became intoxicated and was hospitalized. Mager testified that the hospital records indicated that the defendant's blood alcohol level was .448 when she was admitted and that the defendant reported to intake staff that she routinely drank large amounts of vodka daily for the majority of her adult life. Michael Reitman, who was licensed as a clinical social worker and an alcohol and drug counselor, had treated the defendant since January, 2012. The defendant refused any other form of treatment and Reitman continually had urged the defendant to reconsider her refusal. Since December 31, 2011, the defendant had been successful in maintaining her sobriety, but continued to minimize her difficulty with alcohol. The defendant's abuse of alcohol had a significant impact on the children. The plaintiff influenced to some extent the children's attitudes toward the defendant, but, in any event, the children's alignment with their father grew and they reported negative feelings toward the defendant even during the time from January, 2012, to October, 2012, when the defendant had primary care of the children and the plaintiff did not interfere with her activities with the children. After October, 2012, the children and the plaintiff moved out of the marital home in order to reduce the strife to which the children were being exposed. Mager testified that the defendant's unwillingness to accept responsibility for her actions without placing blame elsewhere prevented healing between her and the children. The children preferred to have very little or no contact with the defendant. The court found that the best interests of the children required orders granting sole legal and physical custody to the plaintiff, that the defendant maintain her sobriety, and that the children maintain a relationship with both parents. The court so ordered and further specified that on a three week rotating basis the defendant was to have visitation with the younger child for three hours the first week, the older child for three hours the second week, and both children for three hours the third week. The court ordered that the children, the plaintiff and, at an appropriate time, the defendant, were to engage in counseling with the "goal and expectation that the parental access between the defendant and the minor children shall increase over time." The court also ordered that the defendant refrain from alcoholic beverages and submit to random alcohol testing; either a positive test or a failure to take a test would result in cancellation of that week's visitation. The court further ordered the defendant to pay $252 weekly in child support to the plaintiff and ordered that the parties share unreimbursed medical, dental and child care expenses. The plaintiff was to pay 53 percent and the defendant 47 percent. The court ordered that the parties' deferred income was subject to equitable distribution. The court did not order alimony. This appeal followed. I The defendant first claims that her right to due process was violated when the court denied without a hearing her motion for a continuance, her "motion to open and set aside judgment and for new trial," her motion to reargue/reconsideration, and her motion for clarification. We disagree. Prior to the start of trial, and almost two years after the plaintiff initiated the action, the defendant filed a motion for a continuance in which she argued that her attorney failed to prepare adequately for trial because she "can no longer pay him." The court denied the motion without elaboration. In the course of a hearing on a postjudgment motion to disqualify the trial court, the defendant mentioned the court's previous denial of her pretrial motion for a continuance. The court at that time explained that "issues relating to the custody of children are priority issues. This case has been pending for a long time. The matter was scheduled in advance. I don't continue custody trials absent extraordinary circumstances like illness or death." After the memorandum of decision was issued, the defendant filed several motions. One was entitled "motion to open and set aside judgment and for new trial." In that motion she argued that a new trial was warranted because her trial counsel was "ineffective" in that he failed to prepare adequately for trial and engaged in "threatening behaviors." She further claimed that Mager, the guardian ad litem, "provided dishonest testimony throughout the trial." With respect to this issue, the defendant argued that Mager falsely had testified that he had spoken with Reitman. The defendant highlighted the court's finding that "[Mager] testified that in his discussion with Reitman, the therapist had reported that he had recommended more intensive type treatments and that he had recommended that [the defendant] attend [Alcoholics Anonymous]. The defendant refused any other form of treatment and Reitman reported to [Mager] that he had continued to urge her to reconsider that decision." The defendant attached to the motion an affidavit by Reitman averring that he had neither spoken to nor met with Mager. She also noted the court's finding that "[i]t was only through the efforts of [Mager] . that vital information from the St. Vincent's Hospital records were brought to the court's attention." She argued that the hospital records were not introduced into evidence and Mager "testified to the contents of the record that were completely made up and false. Another willful act of perjury ." The court denied the motion for clarification. The defendant also filed a motion to reargue, which claimed "ineffective counsel and fraudulent testimony" by Mager. This motion was denied. The defendant filed a motion for clarification in which she stated that the court denied her "motion to open and set aside judgment and for new trial" without a hearing, and asked the court to clarify the legal basis upon which the court denied that motion. The court also denied this motion. The defendant argues that "[a]s a matter of law, the trial court's . failure to afford a hearing on the defendant's motion for a continuance, motion to reopen judgment for a new trial based on perjury and ineffective counsel, motion to reargue/reconsider, and motion for clarification deprived the [defendant of her due process right] to be heard." Pursuant to Practice Book § 11-18(a), however, whether to hear oral argument on motions in civil matters is a matter within the discretion of the court, except in limited circumstances, not relevant here, in which argument is a matter of right. Section 11-18(a) provides in relevant part: "Oral argument is at the discretion of the judicial authority except as to motions to dismiss, motions to strike, motions for summary judgment, motions for judgment of foreclosure, and motions for judgment on the report of an attorney trial referee and/or hearing on any objections thereto...." We review the claim of error in not hearing oral argument under an abuse of discretion standard. See Brochard v. Brochard , 165 Conn.App. 626, 638, 140 A.3d 254 (2016). It is clear, then, that the defendant was not entitled to oral argument as of right on her motion for a continuance, her "motion to open and set aside judgment and for new trial," her motion to reargue/reconsideration, and her motion for clarification. The trial court's decisions not to hold evidentiary hearings with respect to these motions were, by the rules of practice and case authority, within its discretion. There is nothing in the record to indicate that the court abused its discretion in ruling on the motions without a hearing. The defendant focuses her substantive argument regarding the disposition of her motions on her motion to open. She argues that Mager's "testimony throughout the trial, while being under oath, was deceitful and willfully dishonest. That the defendant's counsel did not properly cross-examine [Mager] despite the defendant asking him to do so. In addition, the defendant's hospital records were never introduced as evidence. Yet, [Mager] dishonestly testified as to the contents of the record. Said testimony was completely fraudulent and deceitful. The trial court . relied on [Mager's] false testimony. This resulted in significant harm being done to the defendant and her minor children.... It is clear in the memorandum of decision that the court based its recommendation on the testimony of [Mager]. However the new evidence clearly shows the court that a new trial would produce a different outcome, in light of the fact that a key witness for the plaintiff has committed acts of perjury." The defendant presents two grounds for her argument that Mager's testimony was "fraudulent." First, she points to the court's statement in its memorandum of decision regarding Mager's testimony during trial. The court stated that Mager had testified that, during a discussion he had had with Reitman, Reitman indicated that he had urged the defendant to attend Alcoholics Anonymous and had also suggested that the defendant needed more treatment than what was being provided, but she refused. The statement, deemed fraudulent by the defendant, was never made. Although Mager testified about the underlying facts, he did not testify that he learned about the facts through a conversation with Reitman. That the court apparently incorrectly attributed the information in its memorandum of decision does not necessarily undermine the judgment; the manner in which Mager obtained this information is not a fact material to this case, and, thus, the finding as to attribution is harmless. See Lambert v. Donahue , 78 Conn.App. 493, 507, 827 A.2d 729 (2003) ("Where . some of the facts found [by the trial court] 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." [Internal quotation marks omitted.] ). Second, the defendant states that Mager's testimony as to the contents of the hospital records regarding the defendant's treatment for detoxification at St. Vincent's Hospital was intentionally inaccurate. Mager's testimony as to the content of the records was admitted into evidence without objection, however, and was not inconsistent with the testimony of the defendant's witness, Reitman; we note, however, that Reitman's testimony regarding the contents of the hospital records was less comprehensive than that of Mager. Further, the defendant herself presumably could have introduced the hospital records themselves into evidence in order to contest Mager's version of events. In this respect, because any discrepancies could have been discovered at trial, the evidence could not have been newly discovered for purposes of a motion to open. Worth v. Korta , 132 Conn.App. 154, 160-61, 31 A.3d 804 (2011) (evidence "newly discovered" for purposes of motion to open if "it could not have been discovered earlier by the exercise of due diligence" [emphasis omitted; internal quotation marks omitted] ), cert. denied, 304 Conn. 905, 38 A.3d 1201 (2012). It was clear from the motion to open itself that the defendant's assertions of perjury, in the absence of newly discovered documentation, lacked merit. The court did not abuse its discretion in denying the motion to open without an evidentiary hearing. II The defendant next claims that the court erred in granting sole legal custody of the minor child to the plaintiff. We disagree. "It is statutorily incumbent upon a court entering orders concerning custody or visitation or a modification of such order to be guided by the best interests of the child.... In reaching a decision as to what is in the best interests of a child, the court is vested with broad discretion and its ruling will be reversed only upon a showing that some legal principle or right has been violated or that the discretion has been abused." (Citation omitted; internal quotation marks omitted.) Stahl v. Bayliss , 98 Conn.App. 63, 68, 907 A.2d 139, cert. denied, 280 Conn. 945, 912 A.2d 477 (2006). General Statutes § 46b-56 provides in relevant part: "(a) In any controversy before the Superior Court as to the custody or care of minor children . the court may make . any proper order regarding the custody, care, education, visitation and support of the children . [and] the court may assign parental responsibility for raising the child to the parents jointly, or may award custody to either parent or to a third party, according to its best judgment upon the facts of the case and subject to such conditions and limitations as it deems equitable.... "(b) In making or modifying any order as provided in subsection (a) of this section, the rights and responsibilities of both parents shall be considered and the court shall enter orders accordingly that serve the best interests of the child and provide the child with the active and consistent involvement of both parents commensurate with their abilities and interests. Such orders may include, but shall not be limited to . (3) the award of sole custody to one parent with appropriate parenting time for the noncustodial parent where sole custody is in the best interests of the child; or (4) any other custody arrangements as the court may determine to be in the best interests of the child. "(c) In making or modifying any order as provided in subsections (a) and (b) of this section, the court shall consider the best interests of the child, and in doing so may consider, but shall not be limited to, one or more of the following factors: (1) The temperament and developmental needs of the child; (2) the capacity and the disposition of the parents to understand and meet the needs of the child; (3) any relevant and material information obtained from the child, including the informed preferences of the child; (4) the wishes of the child's parents as to custody; (5) the past and current interaction and relationship of the child with each parent, the child's siblings and any other person who may significantly affect the best interests of the child; (6) the willingness and ability of each parent to facilitate and encourage such continuing parent-child relationship between the child and the other parent as is appropriate, including compliance with any court orders; (7) any manipulation by or coercive behavior of the parents in an effort to involve the child in the parents' dispute; (8) the ability of each parent to be actively involved in the life of the child; (9) the child's adjustment to his or her home, school and community environments; (10) the length of time that the child has lived in a stable and satisfactory environment and the desirability of maintaining continuity in such environment, provided the court may consider favorably a parent who voluntarily leaves the child's family home pendente lite in order to alleviate stress in the household; (11) the stability of the child's existing or proposed residences, or both; (12) the mental and physical health of all individuals involved, except that a disability of a proposed custodial parent or other party, in and of itself, shall not be determinative of custody unless the proposed custodial arrangement is not in the best interests of the child; (13) the child's cultural background; (14) the effect on the child of the actions of an abuser, if any domestic violence has occurred between the parents or between a parent and another individual or the child; (15) whether the child or a sibling of the child has been abused or neglected, as defined respectively in section 46b-120; and (16) whether the party satisfactorily completed participation in a parenting education program established pursuant to section 46b-69b. The court is not required to assign any weight to any of the factors that it considers, but shall articulate the basis for its decision...." The defendant argues that Mager's testimony relevant to the child's best interests was erroneous and should not have been relied on by the court. She claims he was mistaken in testifying, inter alia, that she had been drinking during the majority of her adult life, including large amounts of vodka daily, and in reporting that the children had no desire to have contact with her. She also contends that the court ignored evidence favorable to her with respect to the "best interest" factors under § 46b-56. Most of her argument regarding these factors refers to abusive behavior on the part of the plaintiff and the claim that the children had stronger ties to the defendant than to the plaintiff. The defendant essentially requests us to reassess the credibility of witnesses. "[I]t is well established that the evaluation of a witness' testimony and credibility are wholly within the province of the trier of fact.... An appellate court must defer to the trier of fact's assessment of credibility because [i]t is the [fact finder] . [who has] an opportunity to observe the demeanor of the witnesses and the parties; thus [the fact finder] is best able to judge the credibility of the witnesses and to draw necessary inferences therefrom." (Citation omitted; internal quotation marks omitted.) Schoenborn v. Schoenborn , 144 Conn.App. 846, 851, 74 A.3d 482 (2013). The court found the testimony of Mager credible and the testimony of the defendant and her family, to the effect that her issues with alcohol were recent phenomena and were caused by the behavior of the plaintiff, not credible. We decline to second-guess this determination. The court found that the defendant had been successful in maintaining her sobriety since January, 2012, but she continued to minimize the significance and extent of her alcohol related difficulty. The court noted that it did not credit the testimony of the defendant or her family that her issues with alcohol were a short term reaction to circumstances. The court stated that it was not ignoring emotional abuse by the plaintiff, but that the defendant's placing blame elsewhere for her alcohol issues only placed her and the children at greater risk and prevented healing between the defendant and the children. The court, on the other hand, noted that the plaintiff encouraged the children's negative attitude toward the defendant and contributed to the breakdown of the marriage. The court nevertheless found that the children reported their feelings about the defendant in very negative terms, even when the defendant was the primary parent and the plaintiff was not interfering. The court found that the children considered the defendant's actions to be harmful to them. The court stated that the "strong and consistent preference" of the children was to have "very limited contact with the defendant." The court concluded that, despite the children's preference, "the best interests of the children are served here by having a meaningful relationship with both parents." The court discussed the difficulty in achieving that goal in light of the strong views of the children and the facts that at least one child was almost sixteen at the time of trial and the children had not experienced helpful therapy during the pendency of trial. The court concluded by noting that "the defendant's request for joint legal custody is shocking based on the reality of this case and truly demonstrates the defendant's total lack of insight into her children and the impact her alcoholism has had on them.... She and the plaintiff have not been able to communicate on any meaningful level for a very long period of time. While such a lack of co-parenting communication is not completely her fault under any sense of the concept it is simply not a viable path for protecting the minor children and promoting their best interests at this time." Although the court ordered that the defendant's visitation with the children was set at three hours per week, contingent upon the defendant refraining from alcoholic beverages, the court also ordered that the children engage in therapy with the goal of increasing the defendant's access to them. It is clear that the court carefully examined all of the evidence, analyzed the § 46b-56 factors, and determined that it was in the children's best interest to award sole custody to the plaintiff. "The controlling principle in a determination respecting custody is that the court shall be guided by the best interests of the child." (Internal quotation marks omitted.) Ford v. Ford , 68 Conn.App. 173, 187, 789 A.2d 1104, cert. denied, 260 Conn. 910, 796 A.2d 556 (2002). We cannot conclude that the court's conclusion in this regard was an abuse of discretion. III The defendant next claims that the court erred in its distribution of the marital assets. We disagree. "[T]his court will not disturb trial court orders unless the trial court has abused its legal discretion or its findings have no reasonable basis in the facts.... [T]he foundation for this standard is that the trial court is in a clearly advantageous position to assess the personal factors significant to a domestic relations case . 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." (Citation omitted; internal quotation marks omitted.) Misthopoulos v. Misthopoulos , 297 Conn. 358, 366-67, 999 A.2d 721 (2010). The defendant argues essentially that she is unable to comply with the financial orders that she pay $252 weekly in child support, 47 percent of all unreimbursed/ uncovered medical/dental expenses, 47 percent of all reasonably necessary child care, and her share of the expenses required to place the marital home on the market. She contends that she has been ordered to pay "child support twice" because, in addition to the $252 weekly child support, she would expect to spend additional money on the children during visitations. She further argues that her recent retirement caused a decrease in her income and that she is unable to pay the amount required under the financial orders. The defendant has not supplied a persuasive reason to disturb the court's exercise of discretion in fashioning its orders. She was not required to pay child support twice: courts routinely order a parent who enjoys visitation also to pay a share of child support. The defendant's argument that the amount that she was required to pay exceeded her current income refers to facts not in the record before the trial court at the time of the decision and, as such, we cannot consider it. "[W]e cannot consider evidence not available to the trial court to find adjudicative facts for the first time on appeal.... It is well established that this court does not find facts." (Footnote omitted.) State v. Edwards , 314 Conn. 465, 478, 102 A.3d 52 (2014). IV The defendant last claims that the court abused its discretion in denying her motions for recusal. We disagree. " Canon 3(c) of the Code of Judicial Conduct governs judicial disqualification. That canon provides in relevant part that (1) A judge should disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where: (A) the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding . Canon 3(c) thus encompasses two distinct grounds for disqualification: actual bias and the appearance of partiality. The appearance and the existence of impartiality are both essential elements of a fair trial.... As such, [t]o prevail on its claim of a violation of this canon, [a party] need not show actual bias. The [party] has met its burden if it can prove that the conduct in question gave rise to a reasonable appearance of impropriety." (Internal quotation marks omitted.) McKenna v. Delente , 123 Conn.App. 137, 143, 1 A.3d 260 (2010). "A trial court's ruling on a motion for disqualification is reviewed for abuse of discretion.... 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." (Internal quotation marks omitted.) In re Christopher C. , 134 Conn.App. 464, 471-72, 39 A.3d 1122 (2012). The defendant asked Judge Adelman several times to recuse himself. At a hearing held on February 13, 2015, regarding the plaintiff's motion to vacate the appellate stay, the defendant requested Judge Adelman to "permanently recuse [himself] from my case." After hearing from the defendant, the court stated: "[Y]ou've repeatedly made claims that I'm biased against you, primarily because I've ruled against you, although I have also entered rulings in your favor.... If someone rules against you or does something that is adverse to your position you immediately assume that person is biased against you. I certainly regret that you have that opinion. I've certainly done everything I can to give you a fair hearing on every motion that you've raised. Your motion for me to recuse myself is denied, as it has been in the past." The defendant argues on appeal that the court engaged in behaviors showing bias against her, such as transferring the case to Bridgeport when he was assigned to Bridgeport, denying her rights to due process, relying on the testimony of Mager, and making certain comments at a July 11, 2014 hearing held on various postjudgment motions, and engaging in retaliation against her for expressing her concerns about the guardian ad litem system. The citations to the record referenced in her brief and the motions for disqualification to which the defendant directs our attention suggest that the defendant's argument of bias stems largely from the court's rulings that were adverse to her. "[T]he fact that a trial court rules adversely to a litigant . does not demonstrate personal bias." (Internal quotation marks omitted.) Burns v. Quinnipiac University , 120 Conn.App. 311, 317, 991 A.2d 666, cert. denied, 297 Conn. 906, 995 A.2d 634 (2010). The defendant has offered no valid reason why a reasonable observer would suspect partiality. McKenna v. Delente , supra, 123 Conn. App. at 143, 1 A.3d 260 ("[i]f an objective observer, in view of all of the facts would reasonably doubt the court's impartiality, the court's discretion would be abused if a motion to recuse were not granted" [internal quotation marks omitted] ). We have carefully examined the record, including the court's decision, and find that the defendant was accorded fair and reasonable consideration. We see absolutely no appearance of impropriety and, indeed, the record reflects nothing other than a conscientious effort to resolve a contentious case. We, therefore, reject the assertion that the court abused its discretion in denying the motion to recuse in this matter. The judgment is affirmed. In this opinion the other judges concurred. The defendant seeks review of these claims under the plain error doctrine. This doctrine, codified at Practice Book § 60-5, is an extraordinary remedy. "[T]he plain error doctrine . is not . a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court's judgment, for reasons of policy.... In addition, the plain error doctrine is reserved for truly extraordinary situations [in which] the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.... Plain error is a doctrine that should be invoked sparingly." (Internal quotation marks omitted.) State v. Myers, 290 Conn. 278, 289, 963 A.2d 11 (2009). The present claim, however, is reviewable without resort to doctrines reserved for unpreserved claims of error. We will review the merits of this claim under the abuse of discretion standard. Although notions of due process include the opportunity to be heard; see Barros v. Barros, 309 Conn. 499, 507-508, 72 A.3d 367 (2013) ; the defendant patently was afforded the opportunity to present her points of view in writing. Such opportunity satisfies due process. See Bojila v. Shramko, 80 Conn.App. 508, 518, 836 A.2d 1207 (2003) (absence of hearing on motion to open not violation of procedural due process where hearing not required under Practice Book § 11-18 [a] ). We also note that the evidence regarding the defendant's difficulties with alcohol was overwhelming and was provided by several sources. We have examined the exhibits, and do not find the St. Vincent's Hospital records to be among those submitted into evidence. The older child has reached the age of majority. We address the claims only as they relate to the younger child, who is a minor at the time of this appeal. In her statement of issues regarding this claim the defendant also includes an argument that the trial court erred in failing to establish a holiday, vacation, and birthday visitation schedule that included her. Our Supreme Court "has consistently held in matters involving child custody, and, by implication, visitation rights, that while the rights, wishes and desires of the parents must be considered it is nevertheless the ultimate welfare of the child which must control the decision of the court." (Internal quotation marks omitted.) Ridgeway v. Ridgeway, 180 Conn. 533, 541, 429 A.2d 801 (1980). The court's holiday visitation schedule included visitation on Christmas and Mother's Day. The court found that the children's expressed desire was to have no contact with the defendant, but the court nonetheless found that it was in the children's best interest to try to develop a meaningful relationship with defendant; it ordered therapy for the children in an effort to try to mend their relationship with the defendant. The court expressed the "goal and expectation that the parental access between the defendant and the minor children shall increase over time ." The court further ordered that the children were free to contact the defendant any time and the plaintiff was not to interfere, except incident to legitimate discipline. We conclude that the court did not abuse its discretion in fashioning its visitation orders. The court also noted that much of the emotional abuse described by the defendant occurred after the filing of the complaint and after her hospitalization. The court ordered that the defendant pay for any improvements or minor repairs costing less than $500 that might be recommended by the realtor or required by the buyer's lender. The cost of major items exceeding $500 were to be shared equally by the parties. Her retirement occurred after the court's judgment and while this appeal was pending. Evidence regarding it is not part of the record in this appeal. The defendant argues consistently throughout her discussion of this claim that the court failed to use a "mosaic approach" in crafting its financial orders. It is true that "financial orders are entirely interwoven. The rendering of judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other." (Internal quotation marks omitted.) Watrous v. Watrous, 108 Conn.App. 813, 818, 949 A.2d 557 (2008). This statement refers to the practical impossibility of reversing only one financial order when the entirety of the financial orders are interwoven. The concept of the mosaic does not specifically apply to the defendant's claims. The defendant also argues that the court's order that she transfer a percentage of her pension to the plaintiff, while not requiring him to transfer a portion of his pension to her, was punitive, and that the court's order requiring her to maintain life insurance naming the plaintiff as beneficiary is "encouraging the plaintiff to have the defendant murdered." The plaintiff's arguments are without merit. The duty to support is, however, wholly independent of the right of visitation. Raymond v. Raymond, 165 Conn. 735, 742, 345 A.2d 48 (1974). At the hearing, Mager testified that, despite his efforts, he was unable to find a therapist for the minor children by the date specified in the court's orders. He stated that he was unable to find a therapist in the immediate geographical area with a PhD because some declined to provide services after hearing about the file and the others declined after reviewing the memorandum of decision. Mager testified that there seemed to be a trend that therapists refuse to take on high conflict divorce cases. The defendant, who was self-represented at the hearing, questioned Mager regarding whether he was adverse to the children engaging in therapy and about her concerns regarding Mager as the children's guardian ad litem. The court sustained the objections of the plaintiff's attorney as to these questions and then stated that "the attack on the therapeutic community by litigants who have not been successful in court has, obviously, made many of these therapists adverse to getting involved in these cases. They're getting sued and there's plenty of therapy work for people who are not involved in litigation.... That's tragic because you and these girls need some therapeutic assistance ." The court explained, "I'm going to have to go down the stream to other therapeutic individuals because you and others like you have created a hostile environment ." The defendant argues that this statement by the court indicated bias and that the court's orders were punitive. We do not agree. In the course of its remarks, the court was restating Mager's testimony regarding a trend in the provision of care by therapists in high conflict divorce cases, such as the current case. The court's statements at a postjudgment hearing, in which an issue was whether orders in the memorandum of decision had been executed, do not reflect bias in crafting orders months earlier in its memorandum of decision. The court's statements reflect its findings in the memorandum of decision that the defendant refused to authorize communications between the family relations counselor and one of the therapists, that the selection of a co-parenting counselor was unduly delayed at least in part due to the defendant's procrastination, that, when therapists were found, the defendant ended therapy more than once, claiming that the therapist was not working well with the children or the parties, and that the children blamed the defendant for undermining their therapy and were unwilling to engage in more therapy. The court, then, expressed factual findings leading to a conclusion that the defendant was making progress difficult; the court further noted, essentially, that such behavior extrapolated over a larger population caused difficulty for many people. These statements were not in themselves indicative of a personal bias. See Barca v. Barca, 15 Conn.App. 604, 613, 546 A.2d 887 ("[t]he alleged bias and prejudice, to be disqualifying, must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his [or her] participation in the case" [emphasis omitted; internal quotation marks omitted] ), cert. denied, 209 Conn. 824, 552 A.2d 430 (1988). We note that not all of the court's rulings were adverse to the defendant. For example, the court decided several contempt motions in favor of the defendant and, perhaps more markedly, awarded no alimony, despite finding that the defendant's income was greater than that of the plaintiff. At least one of the defendant's complaints, however, is not grounded in an adverse ruling. When Judge Adelman was transferred from the regional family docket in Middletown to an assignment in Bridgeport, he retained this case. The defendant argues that his retaining the case indicated an animus toward her. The argument overlooks the more obvious motive of judicial efficiency and, indeed, the parties resided in Monroe and Fairfield, far closer to Bridgeport than to Middletown. We do not draw an inference of animus from a neutral act.

12489015

NORWALK POLICE UNION, Local 1727, Council 15, AFSCME, AFL-CIO, et al. v. CITY OF NORWALK et al.

Norwalk Police Union v. City of Norwalk

2017-02-14

SC 19667

1280

1287

153 A.3d 1280

153

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

2021-09-08T21:16:17.237805+00:00

Fastcase

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

NORWALK POLICE UNION, Local 1727, Council 15, AFSCME, AFL-CIO, et al. v. CITY OF NORWALK et al.

NORWALK POLICE UNION, Local 1727, Council 15, AFSCME, AFL-CIO, et al. v. CITY OF NORWALK et al. SC 19667 Supreme Court of Connecticut. Argued December 8, 2016 Officially released February 14, 2017 Jarad M. Lucan, with whom, on the brief, was Saranne P. Murray, for the appellant (named defendant). J. William Gagne, Jr., with whom, on the brief, was Kimberly A. Cuneo, for the appellee (named plaintiff). Rogers, C.J., and Palmer, Eveleigh, Espinosa, 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, Eveleigh, Espinosa, Robinson and Vertefeuille. Although Justice Palmer 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.

3689

23472

ROGERS, C.J. The issue that we must resolve in this appeal is whether the trial court properly vacated an arbitration award that had found that the defendant city of Norwalk (city) had just cause to terminate the employment of Stephen E. Couture, a police sergeant employed by the Norwalk Police Department (department). The plaintiff, Norwalk Police Union, Local 1727, Council 15, AFSCME, AFL-CIO, and the city are parties to a collective bargaining agreement (agreement) governing the terms and conditions of employment for certain police officers employed by the city. The agreement provides that disputes over its interpretation will be resolved through arbitration. After Couture notified a fellow police officer, Thomas Cummings, of a pending criminal investigation against him, Harry W. Rilling, the chief of the department, reassigned Couture to the department's patrol division. Thereafter, Rilling determined that Couture may have violated a number of department rules and regulations by telling Cummings about the investigation. The allegations of misconduct were litigated in a public trial before the Board of Police Commissioners (board of commissioners). The board of commissioners concluded that Couture had violated a number of departmental rules and that his employment should be terminated. Couture disputed the board of commissioners' decision through the grievance procedures set forth in the agreement and ultimately initiated an arbitration proceeding with the defendant State Board of Mediation and Arbitration (arbitration board). A majority of the arbitration board found that Couture had been terminated for just cause. Thereafter, the plaintiff filed an application to vacate the arbitration award pursuant to General Statutes § 52-418. After conducting an evidentiary hearing, the trial court, Hon. Kevin Tierney , judge trial referee, vacated the arbitration award on the ground that the city had disciplined Couture twice for the same misconduct in manifest disregard of the law. The city then filed this appeal. We conclude that the decision of the arbitration board was not in manifest disregard of the law and, therefore, that the trial court improperly vacated the arbitration award. The record reveals the following procedural history and facts that were found by the arbitration board or are undisputed. Couture started working at the department in 1984. He was promoted to the rank of detective in approximately 1987 and to the rank of sergeant in 1991. In 2001, Rilling appointed Couture as commander of the department's youth bureau. During his tenure at the youth bureau, Couture became an experienced investigator of crimes involving persons under the age of majority. Couture's supervisor, Captain Rosemary Arway, considered him to be a leader in the development of team approaches to interviewing child sexual assault victims and Internet sting operations. Cummings was a lieutenant in the department and the commander of the detective division. Couture and Cummings had worked together for many years and were on friendly terms, although they were not social friends. On Friday, October 26, 2007, Couture's subordinate, Detective Charles Perez, returned a telephone call that he had received earlier in the week from Jill Ruggiero, a detective with the Westport Police Department. Ruggiero informed Perez that there was an ongoing sexual assault investigation that was possibly going to be transferred to the department. Perez told Couture about his conversation with Ruggiero, and Couture instructed Perez to get further information. When Perez spoke again with Ruggiero that same day, the information that she provided led Perez to believe that the suspect in the investigation might be Cummings. Perez told Ruggiero that she should speak directly to Couture about the matter. Perez also called Richard Colangelo, an assistant state's attorney, and told him that the sexual assault suspect possibly was Cummings. At approximately 2:43 p.m., Ruggiero called Couture and gave him information about the investigation, and Couture confirmed that the suspect indeed was Cummings. At the end of that telephone call, both Couture and Ruggiero stated that they would report the situation to their respective chiefs of police. Minutes after speaking to Ruggiero, Couture called Cummings' cell phone and made arrangements to meet him in a parking lot across the street from Norwalk High School. Couture spoke to Perez by cell phone while he was driving to the parking lot, but he did not inform him that he was on his way to meet Cummings. During the meeting in the parking lot, Couture told Cummings that he was a suspect in a sexual assault case that the Westport Police Department had been investigating. While Couture and Cummings were still together, Couture received a call on his cell phone from Colangelo. Couture spoke to Colangelo by cell phone again after he left the meeting with Cummings. Couture did not tell Colangelo during either conversation that he had met with Cummings and informed him that he was the suspect in the sexual assault investigation. That same day, October 26, 2007, at 5:34 p.m., Couture telephoned Ruggiero from his extension at the police station. Couture told Ruggiero that the sexual assault investigation of Cummings was a "really big deal" and that, if word of it became public, it would likely draw the attention of the national news media. Couture further stated that if that occurred, it would be a very bad development for the department. Ruggiero had the impression that Couture was trying to tell her not to make the situation "any bigger than it already was" and not to pursue the matter. On the morning of Monday, October 29, 2007, Colangelo went to the department to meet with Rilling. When Colangelo told Rilling about the investigation of Cummings, Rilling indicated that he was concerned that Cummings might have been notified about it. Colangelo assured Rilling that that was not the case. Rilling then called Couture into his office, and Couture confirmed that he had told Cummings about the investigation on the previous Friday. Rilling was angry and upset that Couture had done this without his knowledge or permission. Later that day, Couture went to Colangelo's office and gave a sworn statement regarding the events of October 26, 2007. Couture stated that Ruggiero had advised him that the criminal investigation would be closed if the alleged victims did not come forward. Couture also stated that, while he was speaking to Cummings in the parking lot, Colangelo had called Couture and informed him that the matter would be investigated by the Westport Police Department. At that point, Couture knew that the investigation against Cummings was ongoing. On February 12, 2008, Rilling reassigned Couture to the department's patrol division. On March 11, 2008, after being informed by Colangelo that Couture would not be the subject of any criminal charges, Rilling ordered an internal investigation to determine whether Couture had violated any of the department's policies or procedures when he informed Cummings about the sexual assault investigation. Captain Ernest Vitarbo conducted the investigation and provided a report to Rilling and, after reviewing the report, Rilling concluded that Couture may have violated several of the department's rules and directives. Pursuant to the agreement, Rilling notified Couture that, because the discipline for a violation of those rules and regulations would exceed Rilling's authority under the agreement, Couture had the option either to have a disciplinary hearing before Rilling or to have a hearing before the board of commissioners. Couture elected to have a hearing before the board of commissioners. The board of commissioners conducted a hearing over four days, at which Couture was represented by both counsel for the plaintiff and his own private counsel. The board of commissioners found that Couture had violated § 4.1, 4.16 and 4.21 of the rules of conduct set forth in the department's police manual; see footnote 4 of this opinion; and concluded that Couture should be discharged from employment. The city terminated Couture on September 23, 2008, the same day the board of commissioners issued its decision. On the same date, the plaintiff filed a grievance contending that the city had terminated Couture without just cause, in violation of the agreement, and seeking his reinstatement. After exhausting internal grievance procedures, the plaintiff invoked its right to submit the matter to arbitration. The issues to be determined by the arbitration board were: "Was the discharge of . Couture for just cause?"; and "If not, what should be the remedy consistent with the [agreement]?" The plaintiff contended that Couture's termination violated double jeopardy principles because he previously had been subject to discipline for the same misconduct, namely, Rilling's reassignment of Couture to the patrol division. A majority of the arbitration board concluded that "[t]he question of double jeopardy is easily disposed of for two reasons, as follows: (1) [t]here was no grievance filed for this question and if there was, it is not before this panel of arbitrators; and (2) [t]he [c]hief [of police] has the right to reassign officers in his command to any division in the department. The reassignment is not considered discipline." (Footnote added.) The majority further concluded that Couture's discharge was for just cause. Thereafter, the plaintiff filed an application to vacate the arbitration award pursuant to § 52-418. The plaintiff claimed that the arbitration board's decision was in "manifest disregard of the law" because it ignored the long-standing principle that due process violations, including double jeopardy violations, are part of a just cause analysis. During a subsequent hearing on the plaintiff's application to vacate, the trial court permitted the plaintiff to elicit testimony from Couture about the circumstances surrounding his transfer to the patrol division. The city objected to the admission of this testimony on the ground that the reason for the transfer was not an issue to be decided by the trial court. The trial court overruled the city's objection on the ground that it was unclear whether "this issue was fully covered by the arbitration ." In its memorandum of decision, the trial court concluded that Rilling's reassignment of Couture to the patrol division constituted discipline and that the plaintiff properly had raised the issue of double jeopardy before the arbitration board. The court further concluded that, because the city had no right under the agreement to discipline Couture twice for the same incident, the arbitration board's decision that Couture's termination was for just cause was in manifest disregard of the law. Accordingly, the court granted the plaintiff's application to vacate the arbitration award. The city then filed this appeal in which it claims that the trial court improperly allowed Couture to testify regarding the circumstances surrounding his reassignment to the patrol division and found that the reassignment constituted discipline for the incident involving Cummings despite the arbitration board's finding to the contrary. The city further contends that, even if the reassignment did constitute discipline, there is no " '[well-defined], explicit, and clearly applicable' " law providing that double jeopardy principles apply to disputes involving employee discipline. See Saturn Construction Co. v. Premier Roofing Co. Inc. , 238 Conn. 293, 305, 680 A.2d 1274 (1996). Because we agree with the city's first claim, we need not address its second claim. At the outset, we set forth the standard of review. "When the parties agree to arbitration and establish the authority of the arbitrator through the terms of their submission, the extent of our judicial review of the award is delineated by the scope of the parties' agreement.... When the scope of the submission is unrestricted, the resulting award is not subject to de novo review even for errors of law so long as the award conforms to the submission.... Because we favor arbitration as a means of settling private disputes, we undertake judicial review of arbitration awards in a manner designed to minimize interference with an efficient and economical system of alternative dispute resolution." (Citations omitted.) Garrity v. McCaskey , 223 Conn. 1, 4-5, 612 A.2d 742 (1992). Accordingly, "the factual findings of the arbitrator . are not subject to judicial review." Burr Road Operating Co. II, LLC v. New England Health Care Employees Union, District 1199 , 316 Conn. 618, 638, 114 A.3d 144 (2015) ; see also Harty v. Cantor Fitzgerald & Co. , 275 Conn. 72, 80, 881 A.2d 139 (2005) ("[u]nder an unrestricted submission, the arbitrators' decision is considered final and binding; thus the courts will not review the evidence considered by the arbitrators nor will they review the award for errors of law or fact" [internal quotation marks omitted] ). Nevertheless, this court previously has recognized that "an award that manifests an egregious or patently irrational application of the law is an award that should be set aside pursuant to § 52-418 (a) (4) because the arbitrator has 'exceeded [his] powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.' " Garrity v. McCaskey , supra, 223 Conn. at 10, 612 A.2d 742. We have emphasized, however, that "the 'manifest disregard of the law' ground for vacating an arbitration award is narrow and should be reserved for circumstances of an arbitrator's extraordinary lack of fidelity to established legal principles." Id. "[T]hree elements . must be satisfied in order for a court to vacate an arbitration award on the ground that the arbitration panel manifestly disregarded the law: (1) the error was obvious and capable of being readily and instantly perceived by the average person qualified to serve as an arbitrator; (2) the arbitration panel appreciated the existence of a clearly governing legal principle but decided to ignore it; and (3) the governing law alleged to have been ignored by the arbitration panel is [well-defined], explicit, and clearly applicable." Saturn Construction Co. v. Premier Roofing Co. , supra, 238 Conn. at 305, 680 A.2d 1274. With these principles in mind, we address the city's claim that the trial court improperly found that Rilling had disciplined Couture when he reassigned Couture to the patrol division despite the arbitration board's finding to the contrary. We agree that the question of whether the reassignment was disciplinary is purely a question of fact. Our research has not revealed, and neither the plaintiff nor the trial court has cited, any authority for the proposition that the reassignment of an employee constitutes discipline as a matter of law, much less any such authority that is "[well-defined], explicit, and clearly applicable." Id. In the absence of any such clear and explicit legal authority or contractual provision, the question of whether Rilling's reassignment of Couture constituted discipline is a question of fact to be decided by the arbitration board. Accordingly, the arbitration board's finding on this issue is not reviewable by the courts. See Harty v. Cantor Fitzgerald & Co. , supra, 275 Conn. at 80, 881 A.2d 139 (when submission to arbitrator is unrestricted, "the courts will not review the evidence considered by the arbitrators nor will they review the award for errors of law or fact" [internal quotation marks omitted] ). We conclude, therefore, that the trial court improperly allowed Couture to give testimony on the issue and substituted its finding that Rilling's reassignment of Couture to the patrol division constituted discipline for the arbitration board's finding to the contrary. Because the trial court's conclusion that Couture was subject to double jeopardy was predicated on this finding, and because this conclusion, in turn, provided the basis for the court's determination that the arbitration award was in manifest disregard of the law, that determination cannot stand. Accordingly, we conclude that the trial court improperly vacated the award of the arbitration board. The judgment is reversed and the case is remanded to the trial court with direction to deny the plaintiff's application to vacate the arbitration award. In this opinion the other justices concurred. Couture also was originally named as a plaintiff in this action, however, the trial court, Hon. William J. Wenzel, judge trial referee, granted the city's motion to strike Couture as an improper party. The city appealed from the judgment of the trial court to the Appellate Court and this court transferred the appeal to itself pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1. The record does not reflect the reasons for Rilling's suspicion that Cummings had been notified. Specifically, Rilling concluded that Couture may have violated various rules of conduct that are set forth in the department's police manual, including § 4.1, which prohibits police officers from engaging in acts that constitute a violation of the rules, § 4.16, which prohibits police officers from engaging in unbecoming conduct that brings that department into disrepute, reflects discredit upon the officer or impairs the operation or efficiency of the department or officer, § 4.21, which prohibits police officers from disclosing confidential departmental business to unauthorized persons, and § 4.23, which prohibits police officers from withholding information relating to police business from superior officers for an improper purpose. In addition, Rilling concluded that Couture may have violated directive 2.8.12 of the department's police manual, which requires police officers to notify the chief of police of all complaints against the department or its employees. Article 19, § 1 (b), of the agreement provides in relevant part: "If, in the opinion of the [c]hief of [p]olice, disciplinary action of more than twenty . days suspension is warranted, then the employee will be advised by the [c]hief [of police] and be given the option of either having a disciplinary hearing before the [c]hief [of police], or before the [board of commissioners] ." Article 19, § 1 (b), of the agreement provides in relevant part: "In no event can a member of the bargaining unit be disciplined by both the [c]hief [of police] and the [board of commissioners] concerning the same incident or complaint." The plaintiff had previously brought an arbitration proceeding on behalf of Couture in which one of the questions submitted to the arbitrator was whether the double jeopardy claim was arbitrable. The arbitrator concluded that it was not because, at the time that the plaintiff brought the arbitration proceeding, Couture had not yet been terminated. After the plaintiff filed its application to vacate in the Superior Court for the judicial district of Danbury, the city filed a motion to dismiss the action on the ground that it was brought in an improper venue because neither party was located in that judicial district. The city also filed a motion to strike Couture as an improper party because he was neither a party to the agreement nor a party to the arbitration proceeding. The trial court, Hon. William J. Wenzel, judge trial referee, granted the city's motion to strike; see footnote 1 of this opinion; and ordered that the case be transferred to the judicial district of Stamford-Norwalk. The plaintiff also claimed that a member of the arbitration panel had engaged in misconduct by participating in ex parte communications with a witness without the knowledge or consent of the parties. The trial court rejected this claim and the plaintiff has not challenged that ruling on appeal. The city has not challenged the trial court's finding that the plaintiff had raised the issue of double jeopardy before the arbitration board on appeal. We note that the arbitration board did not reach the double jeopardy issue because it concluded both that the issue was not before it and that Couture's reassignment did not constitute discipline. Accordingly, it would appear that, upon finding that the issue was before the arbitration board and Couture's reassignment constituted discipline, the trial court should not have decided the issue in the first instance, but should have remanded the case to the arbitration board. See Board of Education v. East Haven Education Assn., 66 Conn.App. 202, 218-19, 784 A.2d 958 (2001) (court may remand case to arbitrator for new hearing). Because we conclude that the trial court improperly substituted its findings for the findings of the arbitration board, however, we need not address the question of whether the case should be remanded. In support of its finding on this issue, the trial court cited the holding of the Commonwealth Court of Pennsylvania in Pennsylvania State Police v. Pennsylvania State Troopers Assn., 840 A.2d 1059, 1063 (Pa. Commw.), appeal denied, 578 Pa. 711, 853 A.2d 363 (2004), that the plaintiff employer's reassignment of its employee constituted discipline. The court in Pennsylvania State Police merely held, however, that whether a transfer constitutes discipline is a factual question to be decided by the arbitrator. See id. (when arbitrator found as matter of fact that transfer of employee was disciplinary measure, reviewing court was required to defer to that factual finding). The other cases cited by the trial court also do not support the proposition that a reassignment constitutes discipline. Rather, the cases merely support the proposition that a reassignment is the proper subject of a grievance. See Duluth Police Union v. Duluth, 360 N.W.2d 367, 370 (Minn. App. 1985) (defendant city had right to transfer and reassign personnel, but right was limited by seniority clause of collective bargaining agreement, police manual and past practice); Minneapolis Federation of Teachers, Local 59 v. Minneapolis Special School District No. 1, 258 N.W.2d 802, 806 (Minn. 1977) (decision to transfer teachers is managerial and not subject to negotiation, but criteria by which teachers are identified for transfer is negotiable and individual transfer is proper subject of grievance arbitration). Even if we were to assume that a reassignment is the proper subject of a grievance under the agreement at issue in the present case, that would not necessarily mean that it constitutes discipline.

12498978

Patrick TANNONE v. AMICA MUTUAL INSURANCE COMPANY Sandra Tannone v. Amica Mutual Insurance Company

Tannone v. Amica Mut. Ins. Co.

2018-08-07

SC 20020, (SC 20021)

99

111

189 A.3d 99

189

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

2021-09-08T21:16:17.237805+00:00

Fastcase

Patrick TANNONE v. AMICA MUTUAL INSURANCE COMPANY

Patrick TANNONE v. AMICA MUTUAL INSURANCE COMPANY Sandra Tannone v. Amica Mutual Insurance Company SC 20020, (SC 20021) Supreme Court of Connecticut. Argued February 27, 2018 Officially released August 7, 2018 James Wu, with whom were Cynthia C. Bott and, on the brief, James D. Horwitz, Bridgeport, for the appellants (plaintiffs). Sean R. Caruthers, Branford, for the appellee (defendant). Palmer, D'Auria, Mullins, Kahn and Vertefeuille, Js.

5489

36074

D'AURIA, J. In these appeals, we again consider whether an automobile insurance policy containing underinsured motorist coverage, as required by state law, can validly exclude benefits to the insured when the owner of the underinsured vehicle is a rental car company designated as a "self-insurer" by the Insurance Commissioner (commissioner) pursuant to General Statutes § 38a-371 (c). We first addressed this issue in Orkney v. Hanover Ins. Co. , 248 Conn. 195, 202-206, 727 A.2d 700 (1999), and upheld the validity of § 38a-334-6 (c) (2) (B) of the Regulations of Connecticut State Agencies, which authorizes an exclusion from the underinsured motorist coverage requirement for "uninsured or underinsured vehicle[s] . owned by . a self-insurer under any motor vehicle law ." We came to this conclusion because self-insurers are statutorily required to prove their ability to pay judgments when liable, rendering underinsurance coverage unnecessary in those situations. Orkney v. Hanover Ins. Co. , supra, at 204-206, 727 A.2d 700 ; see General Statutes § 14-129 (b) and 38a-371 (c). Therefore, we decided in Orkney that there was "nothing inconsistent between the public policy underlying underinsured motorist coverage and a regulation that permits a coverage exclusion" for vehicles owned by self-insurers. Orkney v. Hanover Ins. Co. , supra, at 206, 727 A.2d 700. The factual setting in the present case is similar to that in Orkney , but the legislative landscape has changed. In both the present case and in Orkney , the plaintiff insureds were injured by an underinsured lessee driving a rental car owned by a self-insured rental car company. See id., at 197-99, 727 A.2d 700. The insureds were denied underinsured motorist benefits under their policies because those policies contained a self-insurer exclusion. Id., at 199-200, 727 A.2d 700. Since our decision in Orkney , however, Congress passed legislation prohibiting rental car companies from being held vicariously liable for the negligence of their lessees. Specifically, Title 49 of the 2012 edition of the United States Code, § 30106 (a), commonly known as the Graves Amendment; see Rodriguez v. Testa , 296 Conn. 1, 4 n.2, 993 A.2d 955 (2010) ; makes rental car companies immune from vicarious liability for injuries caused by their underinsured lessees-even if a state has designated that company as a self-insurer capable of providing a remedy. Thus, under current law, when the plaintiffs in the present case were denied underinsured motorist benefits pursuant to their policies because of the self-insurer exclusion, they were effectively left without a remedy because they are precluded under the Graves Amendment from recovering from the self-insured rental car company. We are therefore asked in these appeals to reassess, in light of this development in federal law, whether § 38a-334-6 (c) (2) (B) of the Regulations of Connecticut State Agencies, which authorizes the self-insurer exclusions in these insurance policies, remains valid as applied to rental car companies. We conclude that, in this scenario, the state regulation conflicts with the public policy manifested in General Statutes § 38a-336 (a) (1) that requires insurance policies to provide underinsured motorist coverage, and, thus, § 38a-334-6 (c) (2) (B) of the regulations is invalid as applied. I The following undisputed facts and procedural history are relevant to this appeal. The plaintiffs, Sandra and Patrick Tannone, were lawfully crossing the street when they were struck and seriously injured by an automobile. That automobile was a rental car owned by EAN Holdings, LLC, more commonly known as Enterprise Rent-A-Car (Enterprise). Enterprise had leased the vehicle to Barbara Wasilesky, but she was not driving at the time of the collision. The vehicle was instead operated by a permitted user named Arthur Huffman. Wasilesky, the lessee, was the named insured on an automobile insurance liability policy that provided bodily injury coverage in the amounts of $20,000 per person and $40,000 per occurrence-the minimum allowable in Connecticut at the time. General Statutes § 38a-336 (a) (1) and 14-112 (a). The plaintiffs made a claim against Wasilesky, as the lessee, and Huffman, as the vehicle operator, and the parties settled for the full amount of coverage from Wasilesky's policy, namely, $20,000 each. Wasilesky and Huffman have no other insurance coverage, and the plaintiffs claim that their damages exceed what they recovered under Wasilesky's insurance policy. At the time of the collision, the defendant, Amica Mutual Insurance Company (Amica), insured the plaintiffs through separate policies. Each of their policies carried $500,000 of coverage for personal injuries sustained due to the negligence of an underinsured driver. This underinsured motorist coverage, however, excluded from the term " 'underinsured motor vehicle' " any vehicle "[o]wned . by a self-insurer under any applicable motor vehicle law." (Emphasis added.) Enterprise was designated a self-insurer by the commissioner, making it eligible for the exclusion. After settling with Wasilesky and Huffman, the plaintiffs commenced this consolidated action to recover underinsured motorist benefits from their own insurance policies issued by the defendant. In response, the defendant asserted special defenses, including that the policies do not afford underinsured motorist benefits when the tortfeasor's vehicle is owned by a self-insurer. The defendant moved for summary judgment, arguing that it was entitled to judgment as a matter of law because the vehicle driven by Huffman was owned by a self-insurer, Enterprise, and because the plaintiffs did not demonstrate that they had exhausted their remedy from Enterprise. In support of the validity of the exclusion, the defendant pointed to § 38a-334-6 (c) (2) (B) of the Regulations of Connecticut State Agencies, which expressly authorizes such exclusions, and to Orkney v. Hanover Inc. Co. , supra, 248 Conn. at 195, 202-206, 727 A.2d 700, in which this court confirmed the validity of that regulation and a similar coverage exclusion. The plaintiffs asserted in response that the defendant's reliance on Orkney is misplaced because it predated the Graves Amendment, which eliminated the possibility that the plaintiffs could recover from Enterprise. The trial court nevertheless agreed with the defendant and granted its motions for summary judgment. The plaintiffs moved for reargument, and the trial court denied their motions. The plaintiffs then appealed from the judgments of the trial court to the Appellate Court, and this court transferred the appeals to itself. See General Statutes § 51-199 (c) ; Practice Book § 65-1. Because a trial court's decision granting a motion for summary judgment and issues of statutory construction present questions of law, our review on appeal is plenary. See, e.g., Rodriguez v. Testa , supra, 296 Conn. at 6-7, 993 A.2d 955 (setting forth standard for granting motion for summary judgment); see also General Statutes § 1-2z (setting forth plain meaning rule governing statutory interpretation). The plaintiffs claim that the self-insured exclusion in their underinsured motorist coverage does not apply to Enterprise due to the fact that the regulation authorizing that exclusion, § 38a-334-6 (c) (2) (B) of the Regulations of Connecticut State Agencies, is invalid as applied to Enterprise because Enterprise cannot be held liable following the Graves Amendment. See Giglio v. American Economy Ins. Co. , 278 Conn. 794, 804 and n.9, 900 A.2d 27 (2006) (determining validity of coverage exclusion based on validity of insurance regulation authorizing exclusion). "[I]t is well established that an administrative agency's regulations are presumed valid and, unless they are shown to be inconsistent with the authorizing statute, they have the force and effect of a statute . Moreover, [a] person claiming the invalidity of a regulation has the burden of proving that it is inconsistent with or beyond the legislative grant." (Citation omitted; internal quotation marks omitted.) Id., at 806-807, 900 A.2d 27 ; see Orkney v. Hanover Ins. Co. , supra, 248 Conn. at 203, 727 A.2d 700. We agree with the plaintiffs that, under these circumstances, the regulation giving rise to the self-insurance exclusion in the plaintiffs' policies is inconsistent with the authorizing statutes and, therefore, is invalid as applied to Enterprise. Accordingly, we reverse the judgments of the trial court and remand the cases to that court for further proceedings. II We first consider the interconnected legislative, regulatory, and public policy backdrop confronting us in this appeal, including how that backdrop has changed. Our state law requires all motor vehicle owners to maintain a minimum amount of automobile liability insurance coverage. General Statutes § 38a-335 (a). The legislature understood that some motorists will not comply with this law, however. Thus, to protect properly insured motorists from the negligence of financially irresponsible motorists, our state law expressly provides that every automobile insurance policy must provide its insured with a minimum amount of uninsured and underinsured motorist coverage as provided for in § 14-112 (a). General Statutes § 38a-336 (a) (1) (A) ("[e]ach automobile liability insurance policy shall provide insurance, herein called uninsured and underinsured motorist coverage . for the protection of persons insured thereunder who are legally entitled to recover damages because of bodily injury, including death resulting therefrom, from owners or operators of uninsured motor vehicles and underinsured motor vehicles"). Our state has consistently maintained a "strong public policy favoring uninsured motorist coverage . since 1967 ." Streitweiser v. Middlesex Mutual Assurance Co. , 219 Conn. 371, 377, 593 A.2d 498 (1991). Specifically, that public policy dictates that "every insured is entitled to recover for the damages he or she would have been able to recover if the uninsured motorist [responsible for the insured's injury] had maintained a policy of liability insurance." (Internal quotation marks omitted.) Gormbard v. Zurich Ins. Co. , 279 Conn. 808, 817, 904 A.2d 198 (2006). In short, the legislature and this court have a well established and deliberate policy in favor of insuring the risk of loss resulting from the negligence of uninsured and underinsured motorists. The rationale behind this policy is "to reward those who obtain insurance coverage for the benefit of those they might injure." (Internal quotation marks omitted.) Id., at 824, 904 A.2d 198. We have supported coverage arrangements that have "furthered the important public policy goals of the uninsured motorist statute." (Emphasis in original.) Id. ; see General Statutes § 38a-336 (a) (1) (A). And in support of the "broad, remedial purpose of the uninsured motorist statute"; Gormbard v. Zurich Ins. Co. , supra, 279 Conn. at 814, 904 A.2d 198 ; we have stated "that an insurer may [not] circumvent th[at] public policy ." Id., at 823, 904 A.2d 198. As stated previously, Wasilesky maintained only the minimum required amount of coverage at the time of the collision: $20,000 per person and $40,000 per collision. The plaintiffs' policies grant underinsured motorist benefits when the tortfeasor "does carry [l]iability insurance but the amount of insurance available under that motorist's policy is less than the amount of [u]ninsured [m]otorists coverage you have selected." They allege entitlement to underinsured motorist benefits in this instance because their damages exceed the amount of the recovery from Wasilesky's policy. The manner in which an insurer provides underinsured motorist coverage to its policyholders is regulated by § 38a-334 (a) and 38a-336 (a) (1) (A), which authorize the commissioner to adopt regulations that "relate to," among other things, "insuring agreements, exclusions . and [under]insured motorists coverages under such policies ." General Statutes § 38a-334 (a). Ordinarily, "an insurer may not, by contract, reduce its liability for . uninsured or underinsured motorist coverage," unless authorized by § 38a-334-6 of the Regulations of Connecticut State Agencies. (Internal quotation marks omitted.) Orkney v. Hanover Ins. Co. , supra, 248 Conn. at 201, 727 A.2d 700 ; see Gormbard v. Zurich Ins. Co. , supra, 279 Conn. at 817, 904 A.2d 198 ("[i]nsurance companies are powerless to restrict the broad coverage mandated by the statute" [internal quotation marks omitted] ). One authorized exclusion under the regulations to the requirement for underinsured motorist coverage is when "the uninsured or underinsured motor vehicle is owned by . a self insurer under any motor vehicle law ." (Emphasis added.) Regs., Conn. State Agencies § 38a-334-6 (c) (2) (B). The defendant has included such an exclusion in the policies it issued to the plaintiffs. Specifically, those policies exclude from the term " 'uninsured motor vehicle' " any vehicle "owned . by a self-insurer under any applicable motor vehicle law ." (Emphasis added.) A person may qualify as a self-insurer if "more than twenty-five motor vehicles are registered" in his name and he has obtained "a certificate of self-insurance issued by the commissioner ." General Statutes § 14-129 (a). The commissioner has "discretion" to grant self-insurer applications and issue a certificate of self-insurance "when he is satisfied that such person is possessed and will continue to be possessed of ability to pay judgments obtained against such person." (Emphasis added.) General Statutes § 14-129 (b). To prove this ability, self-insurers must file evidence with the commissioner that their financial security is substantially equivalent to an insurance policy. General Statutes § 38a-371 (c). In short, the key to obtaining self-insurer status is to "demonstrate . the ability to pay judgments rendered . as a result of the operation of the motor vehicle." Orkney v. Hanover Ins. Co. , supra, 248 Conn. at 206, 727 A.2d 700. There is no dispute that the commissioner has designated Enterprise as a self-insurer. But now, after Congress passed the Graves Amendment, Enterprise cannot be held vicariously liable for the negligence of its customers. The relevant legislative landscape has thus changed since our decision in Orkney v. Hanover Ins. Co. , supra, 248 Conn. at 195, 727 A.2d 700, which upheld the self-insurer exclusion, requiring us now to consider whether that case remains controlling. In Orkney , the case the defendant principally relies upon, we addressed the question of whether § 38a-334-6 of the Regulations of Connecticut State Agencies validly permitted an insurer to exclude underinsured motorist coverage from a policy when the tortfeasor's vehicle was owned by a self-insurer. Orkney v. Hanover Ins. Co. , supra, 248 Conn. at 202-203, 727 A.2d 700. Orkney involved facts similar to this case: the plaintiff, a passenger in a motor vehicle, was injured by the alleged negligence of another motorist driving a rental car owned by a self-insurer. Id., at 197, 727 A.2d 700. Because the negligent motorist was underinsured, the plaintiff in Orkney sought compensation from the defendant, her insurance company. See id., at 198-99, 727 A.2d 700. Arguing that the plaintiff "had failed to exhaust the liability coverage available to [the rental car company] as the owner of the rental car"; id., at 199, 727 A.2d 700 ; the defendant insurance company in Orkney , like the defendant in the present case, pointed to its explicit exclusion of "vehicles owned by self-insurers from the policy definition of underinsured motor vehicles." Id., at 200, 727 A.2d 700. We concluded in Orkney that § 38a-334-6 (c) (2) (B) of the Regulations of Connecticut State Agencies validly authorized "the exclusion of vehicles owned by self-insurers from the scope of the underinsured motorist coverage provided by an automobile liability insurance policy." Id., at 202, 727 A.2d 700. We further concluded that there is "nothing inconsistent between the public policy underlying underinsured motorist coverage and a regulation that permits a coverage exclusion [for self-insurers]." Id., at 206, 727 A.2d 700. We recognized in Orkney , however, that the underinsured motorist statute, § 38a-336, "does not require that [under]insured motorist coverage be made available when the insured has been otherwise protected ." (Emphasis added; internal quotation marks omitted.) Id., at 205, 727 A.2d 700. Thus, central to our decision in Orkney was the injured party's ability to "seek compensation from the [self-insurer]" for the negligence of its lessees. Id., at 206, 727 A.2d 700. This avenue of recourse was assured by the statutory requirements that self-insurers prove their "ability to pay judgments [rendered] against [them]." General Statutes § 14-129 (b) ; see General Statutes § 38a-371 (c) (3) (self-insurer must provide "evidence that reliable financial arrangements . exist providing assurance for payment of all obligations"). Recourse was also assured by the statute requiring financial security "substantially equivalent to those afforded by a policy of insurance ." General Statutes § 38a-371 (c). In other words, at the time of our decision in Orkney , the self-insurer exclusion did not foreclose the insured from a remedy. Instead, the exclusion essentially directed the insured to seek another source of compensation for her injuries: the self-insurer. See Orkney v. Hanover Ins. Co. , supra, 248 Conn. at 206, 727 A.2d 700. Six years after Orkney , however, Congress passed the Graves Amendment, which provides in relevant part that a rental car company that owns a vehicle "shall not be liable under the law of any [s]tate . for harm to persons or property that . arises out of the use, operation, or possession of the vehicle during the period of the rental or lease," unless there is "negligence or criminal wrongdoing on the part of the owner ." 49 U.S.C. § 30106 (a) (2012). Under federal law, therefore, a rental car company cannot be held vicariously liable for the negligence of its lessees. As we recognized in Rodriguez v. Testa , supra, 296 Conn. at 3-5, 993 A.2d 955, the Graves Amendment preempted General Statutes § 14-154a (a), which imposed vicarious liability on rental car companies for damage caused by their lessees. The Graves Amendment has therefore fundamentally changed our legislative and regulatory landscape. Now, injured parties are precluded by federal statute from seeking compensation from rental car companies as self-insurers, undercutting the primary rationale on which Orkney was decided. And now, the injured party's inability to seek compensation from the self-insurer has created an "inconsisten[cy] between the public policy underlying underinsured motorist coverage and [the] regulation that permits a coverage exclusion" for self-insurers that did not exist at the time we decided Orkney . Orkney v. Hanover Ins. Co. , supra, 248 Conn. at 206, 727 A.2d 700. The exclusion of vehicles owned by a self-insurer from the underinsured motorist coverage requirement, without also providing recourse against that self-insurer, contravenes the "strong public policy favoring uninsured motorist coverage" deliberately articulated in § 38a-336 (a) (1) (A). Streitweiser v. Middlesex Mutual Assurance Co. , supra, 219 Conn. at 377, 593 A.2d 498. Specifically, the effect of the defendant's self-insurer exclusion with respect to rental car companies upends the well-established public policy that "every insured is entitled to recover for the damages he or she would have been able to recover if the uninsured motorist had maintained a policy of liability insurance." (Internal quotation marks omitted.) Gormbard v. Zurich Ins. Co. , supra, 279 Conn. at 817, 904 A.2d 198. Instead of "reward[ing] those who obtain insurance coverage," like the plaintiffs in the present case; (internal quotation marks omitted) id., at 824, 904 A.2d 198 ; permitting this policy exclusion under the current circumstances defeats the legislative purpose of requiring underinsured motorist coverage in the first place-to protect against harm caused by financially irresponsible motorists. The federal legislation that upset our state regulatory structure regarding underinsured motorist coverage therefore results in an impermissible contradiction between our state statutes and regulations. On the one hand, § 38a-336 (a) (1) (A) requires underinsured motorist coverage while, on the other hand, § 38a-334-6 (c) (2) (B) of the Regulations of Connecticut State Agencies permits the exclusion of underinsured motorist coverage as to vehicles owned by self-insurers-now without a substitute remedy. Although the defendant is correct that state regulations are ordinarily given "great deference" and are generally presumed to accurately reflect legislative intent; (internal quotation marks omitted) Orkney v. Hanover Ins. Co. , supra, 248 Conn. at 203-204, 727 A.2d 700 ; that deference is lost when the regulations "are shown to be inconsistent with the authorizing statute ." (Internal quotation marks omitted.) Velez v. Commissioner of Labor , 306 Conn. 475, 485, 50 A.3d 869 (2012). In light of the Graves Amendment, § 38a-334-6 of the regulations now contradicts the public policy behind the underinsured motorist statute, § 38a-336 (a) (1) (A), in contexts such as the one presented in this case because, as a matter of law, the regulation's exclusionary provision forecloses the possibility of the plaintiffs' recovery-instead of directing them to an alternative recourse. Under these circumstances, Orkney can therefore no longer bind our interpretation of § 38a-334-6 of the regulations without entirely precluding insureds from a remedy for an accident with an underinsured motorist in contravention of the public policy behind § 38a-336 (a) (1) (A). In the present case, the plaintiffs made every effort to insure against the risk of the very injuries they sustained. Their insurance policies contain the mandatory underinsured motorist coverage. They did not know-and could not control-that the underinsured motorist who collided with them would be the lessee of a rental car, the owner of which enjoys federal immunity from vicarious liability and, yet, whose status as a self-insurer under state law triggered an exclusion in the plaintiffs' policies that would foreclose their recovery from the defendant. Taking into account the Graves Amendment, the uninsured and underinsured motorist statutes, related state regulations, and the underlying public policy of providing those injured by underinsured motorists with a remedy, we conclude that § 38a-334-6 (c) (2) (B) of the Regulations of Connecticut State Agencies now is inconsistent with the public policy of § 38a-336 and, thus, is invalid as applied. Giglio v. American Economy Ins. Co. , supra, 278 Conn. at 806-807, 900 A.2d 27 (administrative agency's regulations are invalid if inconsistent with authorizing statute); see Orkney v. Hanover Ins. Co. , supra, 248 Conn. at 203, 727 A.2d 700. III The plaintiffs advance other public policy arguments that dovetail with or bolster our conclusion that, as applied in this case, § 38a-334-6 (c) (2) (B) of the Regulations of Connecticut State Agencies conflicts with the underinsured motorist statute. Specifically, they argue that, after the Graves Amendment, "Enterprise cannot be considered a self-insurer . [and] [t]herefore, the self-insurer exclusion [contained in the defendant's policies] does not apply." If it did, they claim, the exclusion would violate the public policy of this state. We agree. A recent decision of the Tennessee Supreme Court is instructive. Martin v. Powers , 505 S.W.3d 512, 515, 518 (Tenn. 2016), involved facts similar to the present case, including that Enterprise was the rental car company that owned the alleged " 'underinsured motor vehicle' " that collided with the plaintiff. That court addressed whether, after the Graves Amendment, an insurance policy can validly exclude uninsured motorist benefits when the insured is injured by a rental car owned by a " 'self-insurer.' " Id., at 515-16. That court concluded that the rental car company was not a self-insurer as to the negligence of its lessees because "one cannot insure against a [nonexistent] risk"; id., at 520 ; and there is "no legitimate reason to require proof of financial security for potential liabilities that are, in fact, [nonexistent]." Id., at 525 (citing Graves Amendment). The court also reasoned that applying the exclusion contravenes "the underlying [public policy] purpose of uninsured motorist coverage, which is to pay compensation to the insured policy owner when the liable third party is unable to do so." Id., at 520. "Indeed, the designation of 'self-insurer' is nonsensical when applied to a class of risks from which Enterprise is statutorily [immune]." Id., at 525. The Tennessee Supreme Court went on to declare that "[w]e are confident that our [l]egislature did not intend that rental cars operated in Tennessee could be simultaneously uninsured, yet not meet the statutory definition of uninsured, all while considered self-insured by the rental company's assets to which the injured victim would have no recourse." Id., at 525 n.7. We are similarly confident. Enterprise, as a matter of law, could not be a self-insurer as to the class of risks in the present case because it is statutorily immune from liability for such risks. See id., at 525 ; J. Berk & M. Jainchill, Connecticut Law of Uninsured and Underinsured Motorist Coverage (4d Ed. 2010) § 3.14, p. 373 n.102 ("In order to trigger [underinsured motorist] coverage in the first instance, there must be a finding that the plaintiff is legally entitled to recover damages from the self-insured tortfeasor.... Applying the 'owned by a self-insurer' exclusion when the self-insured entity has no legal liability is counter-intuitive." [Citation omitted.] ). We have established that, "[i]n an insurance policy, an exclusion is a provision which eliminates coverage where, were it not for the exclusion, coverage would have existed." (Internal quotation marks omitted.) Hammer v. Lumberman's Mutual Casualty Co. , 214 Conn. 573, 588, 573 A.2d 699 (1990). Because Enterprise cannot, as a matter of federal law, be held responsible for the negligence of its lessees, it cannot be considered as a self-insurer for the purposes of that exclusion in the plaintiffs' policies. See Martin v. Powers , supra, 505 S.W.3d at 525, 505 S.W.3d 512. Enterprise is not obligated to compensate parties' injured by the conduct of its lessees, and, therefore, it has no obligation to satisfy a judgment rendered in such an action-the hallmark of self-insurer status. See id., at 520 ; see generally Garcia v. Bridgeport , 306 Conn. 340, 365-66, 51 A.3d 1089 (2012) (stating that "critical substantive" feature of self-insurers is that they are "presumed to have the ability to pay, and indeed . the obligation to pay in full any judgment against it"). In light of the Graves Amendment, construing Enterprise as a self-insurer in this context would contravene our public policy. If we were to interpret Enterprise's self-insurer status to exist as to damages caused by its lessees, it would demand that we honor the coexistence of § 38a-336 (a) (1) (A) and § 38a-334-6 (c) (2) (B) of the Regulations of Connecticut State Agencies. We have concluded previously in this opinion that § 38a-334-6 (c) (2) (B) of the regulations contravenes the public policy articulated in § 38a-336 (a) (1) (A), the underinsured motorist statute, under the present circumstances. Similarly, to enforce the contract of insurance as the defendant would have us construe it would lead to an unworkable outcome and would itself violate public policy. See Geysen v. Securitas Security Services USA, Inc., 322 Conn. 385, 392-93, 142 A.3d 227 (2016) ("[i]f a contract violates public policy, this would be a ground to not enforce the contract" [internal quotation marks omitted] ). If we agreed with the defendant's argument, we would have to accept that our legislature and the commissioner intended that rental cars could be simultaneously underinsured, yet not meet the definition of underinsured under most automobile insurance policies, all while being considered self-insured by the rental car company's assets, to which the injured victim would have no recourse. See Martin v. Powers , supra, 505 S.W.3d at 525 n.7, 505 S.W.3d 512. We cannot accept such illogicial results, as "common sense must be used" when examining and applying statutory provisions and regulations. (Internal quotation marks omitted.) Connelly v. Commissioner of Correction , 258 Conn. 394, 407, 780 A.2d 903 (2001). Enterprise is simply not a self-insurer as to the negligence of its lessees, rendering § 14-129 (a), the self-insurer eligibility statute, inapplicable in this context. Accordingly, the rental car was not owned by a self-insurer, and, therefore, the plaintiffs are not precluded from underinsured motorist benefits under their policies. IV The defendant nevertheless argues that legislative and administrative acquiescence dictates that the legislature intended not to disturb the self-insurer exclusion despite the opportunity and ability to do so after the Graves Amendment took effect in 2005. It is true that there have been amendments to § 38a-336 after the enactment of the Graves Amendment and that the legislature has not taken action to address the self-insurer exclusion. In another case in which we discussed the public policy behind uninsured motorist coverage, however, we were "unpersuaded that legislative inaction invariably warrants recognition as a reliable indicator of legislative intent." Streitweiser v. Middlesex Mutual Assurance Co. , supra, 219 Conn. at 379, 593 A.2d 498. Particularly in a case where, as here, the divergent relationships between state and federal statutes, regulations, and public policies are complex and nuanced, we decline to assume tacit acceptance by the legislature. Taking into account the Graves Amendment, the uninsured and underinsured motorist statutes, related state regulations, and underlying public policy, we therefore conclude that rental car companies may not be deemed self-insurers as to the negligence of their lessees. Accordingly, Enterprise was not self-insured as to the present risk, and the application of the underinsured motorist exclusions in the plaintiffs' policies would contravene the public policy articulated in § 38a-336 (a) (1) (A). The trial court therefore improperly granted the defendant's motions for summary judgment on the ground that Enterprise's vehicle was excluded from underinsured motorist coverage pursuant to the plaintiffs' policies. The judgment of the trial court is reversed and the case is remanded to that court with direction to deny the defendant's motions for summary judgment and for further proceedings. In this opinion the other justices concurred. Orkney interpreted § 38a-334-6 of the 1999 revision of the Regulations of Connecticut State Agencies, which excluded only "uninsured motor vehicle[s]" owned by self-insurers. In response to a claim in that case that the regulation did not permit the exclusion of underinsured motor vehicles, this court stated that "the statutes and regulations applicable to uninsured motorist coverage also apply to underinsured motorist coverage.... [T]herefore . § 38a-334-6 (c) (2) (B) [of the 1999 revision of the Regulations of Connecticut State Agencies] authorizes the exclusion of vehicles owned by self-insurers from the scope of the underinsured motorist coverage provided by an automobile liability insurance policy." (Citations omitted.) Orkney v. Hanover Ins. Co. , supra, 248 Conn. at 202, 727 A.2d 700. Subsequently, § 38a-334-6 of the 1999 revision of the Regulations of Connecticut State Agencies was amended in 2000 to refer to "uninsured or underinsured motor vehicle[s]," which is the current language of the regulation. 62 Conn. L.J., No. 12, p. 6C (September 19, 2000) (final regulation); see also 61 Conn. L.J., No. 23, pp. 5B-6B (December 7, 1999) (proposed regulation). For purposes of simplicity, in this opinion we refer and cite to the current version of the regulation. In 2017, the General Assembly increased the minimum coverage amounts to $25,000 per person and $50,000 per occurrence, effective January 1, 2018. General Statutes (Supp. 2018) § 14-112 (a). We note there is an inconsistency in the record about the factual circumstances surrounding this settlement. The plaintiffs' brief states that the settlement was with Huffman and Wasilesky for the total limits of Wasilesky's policy: $20,000 per person and $40,000 per occurrence. The plaintiffs' amended complaints allege that they settled with only Huffman's insurer for the full amount of his coverage. Meanwhile, the trial court's memorandum of decision appears to indicate that the plaintiffs received the full amount of coverage from Wasilesky's policy. Nothing about the terms of this settlement affects our disposition of these appeals. Upon remand, if material to any dispute, the trial court can sort out the amount and source of available coverage. Patrick Tannone was also insured for underinsured motorist conversion coverage, which means that any underinsured motorist benefits he is entitled to from the defendant will not be reduced by the amount recovered from the legally responsible parties. Although Patrick Tannone's conversion coverage, and Sandra Tannone's lack thereof, may make a difference in their potential recovery if they prevail in the trial court on remand, it does not affect our present analysis, and we therefore will not address it in this opinion. We note that we are not overruling Orkney . Rather, because the Graves Amendment has preempted state law, the rationale in Orkney perforce has limited applicability. Orkney still applies, however, to other types of underinsured motorist claims where the self-insurer exclusion is unaffected by the Graves Amendment, such as when a plaintiff alleges direct negligence or criminal wrongdoing on the part of a self-insured owner or when the self-insured owner is not a rental car company. See 49 U.S.C. § 30106 (a) (2012). Although Enterprise is not a self-insurer as to the risk in the present case, we do not conclude, as the defendant suggests, that Enterprise and other rental car companies are altogether not self-insurers. Enterprise would be a self-insurer when there is a claim of direct liability-as opposed to vicarious liability-brought against it. For example, in cases of "negligence or criminal wrongdoing," self-insurance still applies to rental car companies because those claims are exempt from the Graves Amendment. 49 U.S.C. § 30106 (a) (2) (2012). The defendant asserts that by reaching this conclusion we are usurping the legislature's authority to either amend or repeal our statutory framework in light of the Graves Amendment, or the commissioner's authority to determine who may be a self-insurer under the state regulations. To the contrary, we are neither legislating from the bench nor striking down the regulation. Rather, we are appropriately undertaking the judicial responsibility of vindicating our legislature's public policy, articulated in state statute, to which both a regulation and a contract must give way when they are in conflict with that statute.

12499229

KYLE S. v. JAYNE K. Jayne K. v. Kyle S.

Kyle S. v. Jayne K.

2018-06-05

AC 39969

68

82

190 A.3d 68

190

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-09-08T21:16:17.237805+00:00

Fastcase

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

KYLE S. v. JAYNE K.

KYLE S. v. JAYNE K. Jayne K. v. Kyle S. AC 39969 Appellate Court of Connecticut. Argued December 7, 2017 Officially released June 5, 2018 Allen G. Palmer, with whom, on the brief, was Logan A. Carducci, for the appellant (plaintiff in the first case, respondent in the second case). DiPentima, C.J., and Lavine and Bishop, Js.

6029

35843

DiPENTIMA, C.J. In this protracted domestic litigation, arising out of a dissolution of marriage action and a separate application for relief from abuse, the plaintiff/respondent, Kyle S., appeals from postjudgment orders of the court rendered in favor of the defendant/applicant, Jayne K. On appeal, Kyle S. claims that (1) Jayne K. failed to meet her burden of proof with respect to her application for relief from abuse filed pursuant to General Statutes § 46b-15, her application for an emergency ex parte order of custody filed pursuant to General Statutes § 46b-56f and her motion for modification of custody filed pursuant to General Statutes § 46b-56, (2) the court committed plain error by accepting the parties' waiver of the minor child's privileged mental health records and admitting the records into evidence and (3) the court improperly delegated its authority to decide Kyle S.'s parenting time and custodial rights to a nonjudicial entity. We agree with Kyle S.'s third claim and, accordingly, reverse in part the judgments of the trial court. The following facts and procedural history are relevant to our discussion. In 2008, Kyle S. initiated a dissolution proceeding. On May 2, 2008, the parties agreed to the appointment of Katarzyna Maluszewski as guardian ad litem for T, the minor child of the parties, whose date of birth is in May, 2004. On September 8, 2009, Jayne K. filed an application for relief from abuse against Kyle S., and the court issued an ex parte restraining order. See Jayne S. v. Kyle S. , 116 Conn. App. 690, 690-91, 978 A.2d 94 (2009). Jayne K. alleged that a previous restraining order had been issued against Kyle S. as a result of a January, 2008 incident when he had kicked Jayne K., breaking her rib. Id., at 691, 978 A.2d 94. The September, 2008 application sought a restraining order after Jayne K. had claimed, inter alia, that Kyle S. left a voicemail in which he had threatened "to kill" her. Id. Following a hearing, the court, Hon. Bernard D. Gaffney , judge trial referee, extended the restraining order for a period of six months, from October 3, 2008, to April 3, 2009. Id., at 691-92, 978 A.2d 94. On April 22, 2009, the court, Dolan, J. , rendered a judgment dissolving the parties' marriage. It found that the parties had been married in July, 2006, and had one child, T. The court incorporated the parties' written agreement dated April 17, 2009, into the dissolution judgment. The agreement provided that the parties would have joint custody of T, with his primary residence with Kyle S. The agreement also provided that Jayne K. would not pay child support and neither party would pay or receive alimony. In 2011, Maluszewski accepted $3000 as a full and final settlement of her fees as the guardian ad litem for T. For the period between February, 2013, and February, 2016, the parties filed no motions, and the dissolution/custody file remained static. On February 11, 2016, Jayne K. filed an application for an emergency ex parte order of custody of T, pursuant to General Statutes § 46b-56f. She sought, inter alia, an order of temporary custody of T, with no visitation between T and Kyle S. In the affidavit attached to her motion, she claimed that Kyle S. had physically abused his fiancée in the presence of T. Jayne K. further stated that Kyle S. had been arrested and that the Department of Children and Families (department) had been contacted. She also filed a motion for modification of custody seeking sole custody of T, listing Kyle S.'s arrest as the requisite material change in circumstances. At this time, Jayne K., in a separate file, also filed an application for relief from abuse against Kyle S., pursuant to General Statutes § 46b-15, seeking a restraining order to protect both herself and T. In her affidavit attached to this application, Jayne K. expressed fear for her safety, stating that Kyle S. had been arrested for attacking his fiancée, had a violent history and criminal record of abuse, stalking and harassment, and had threatened to kill Jayne K. if she took T from him. That day, the court, Carbonneau, J. , granted Jayne K.'s ex parte applications and awarded the relief sought without holding a hearing. Specifically, the court issued a restraining order and awarded temporary custody of T to Jayne K. It further ordered the parties to cooperate with the department and to follow any reasonable mandates. Additionally, the court scheduled a hearing on these matters. Four days of hearings regarding Jayne K.'s applications and motion commenced on July 25, 2016. Jayne K. testified that in February, 2016, T's teacher had emailed her that T had exhibited "goofy behaviors" at school. She also received a call from Kyle S.'s fiancée, informing Jayne K. about the events of Kyle S.'s arrest. Jayne K. also indicated that T had started treatment with Warren Corson, a psychologist, on June 9, 2016. According to Jayne K., T benefitted greatly from this therapy. She requested sole custody of T. The court continued its temporary order of sole custody in favor of Jayne K. At the next hearing date, on August 12, 2016, the court ordered that the parties would share joint legal custody of T, with primary residence with Jayne K. The court ordered that Kyle S. could see T in therapeutic sessions with Corson, and ordered other contact as permitted by Jayne K., including access via electronic means. It further ordered that the therapy sessions with Corson were to continue until no longer needed or beneficial. At the September 23, 2016 hearing, following the agreement of the parties, the court admitted into evidence a mental health report from Corson regarding T. At the December 9, 2016 hearing, the court noted that the restraining order was scheduled to expire on February 19, 2017. Again with the agreement of the parties, the court admitted into evidence an updated report of T's progress with Corson. Following Kyle S.'s testimony, and closing arguments from the parties, the court orally rendered its decision. The court found Jayne K.'s testimony credible and that she had sustained her burden of proof under § 46b-15. Accordingly, it continued the existing restraining order, iterating that Kyle S. was "not to assault, threaten, abuse, harass, follow, interfere with or stalk [Jayne K.]." The court ordered Kyle S. to stay away from Jayne K.'s home and work, to not have any contact with her for any reason, and "to stay 100 yards away from her at all times [and] for all reasons." The court then considered the issue of Kyle S.'s contact with T. The court stated that it would rely on Corson to dictate the scope of Kyle S.'s conduct with T in a therapeutic setting. The court specifically noted: "So . I'm not extending any aspect of the temporary restraining order to [T] but, in the other file, the custody file, I am restricting that contact so that the mental health professional can be in charge. " (Emphasis added.) This appeal followed. Additional facts will be set forth as necessary. I Kyle S. first claims that Jayne K. failed to meet her burden of proof with respect to her application for relief from abuse, her application for an emergency ex parte order of custody and her motion to modify custody. Specifically, Kyle S. argues that neither the application for a restraining order nor the evidence at the hearings were sufficient to establish that he presented an immediate and present risk of physical danger or psychological harm to T, or that a change in custody was warranted. We disagree. "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.... Likewise, [a] prayer for injunctive relief is addressed to the sound discretion of the court and the court's ruling can be reviewed only for the purpose of determining whether the decision was based on an erroneous statement of law or an abuse of discretion.... "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.... 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.) Putman v. Kennedy , 104 Conn. App. 26, 31, 932 A.2d 434 (2007), cert. denied, 285 Conn. 909, 940 A.2d 809 (2008) ; see also Jordan M. v. Darric M. , 168 Conn. App. 314, 318, 146 A.3d 1041, cert. denied, 324 Conn. 902, 151 A.3d 1287 (2016). A We first address Kyle S.'s argument that there was insufficient evidence to support the granting of Jayne K.'s application for a restraining order pursuant to § 46b-15. "The plain language of § 46b-15 clearly requires a continuous threat of present physical pain or physical injury before a court can grant a domestic violence restraining order." Krystyna W. v. Janusz W. , 127 Conn. App. 586, 590, 14 A.3d 483 (2011) ; Putman v. Kennedy , supra, 104 Conn. App. at 32, 932 A.2d 434. "[D]omestic violence restraining orders will not issue in the absence of the showing of a threat of violence, specifically a continuous threat of present physical pain or physical injury to the applicant.... The legislature promulgated § 46b-15 to provide an expeditious means of relief for abuse victims.... It is not a statute to provide a remedy in every custody and visitation dispute, however urgent." (Citations omitted; internal quotation marks omitted.) Jordan M. v. Darric M. , supra, 168 Conn. App. at 319-20, 146 A.3d 1041. At the hearing, Jayne K. testified that she had spoken with Kyle S.'s fiancée following the incident resulting in Kyle S.'s arrest. The fiancée told "her side of what happened while [T] was present in [Kyle S.'s] care." Jayne K. also testified that T had been exposed to a "history of violence" and that the department had investigated the charges filed against Kyle S. During cross-examination, Jayne K. testified that Kyle S. had threatened her in February, 2016. Additionally, in the August 9, 2016 mental health report, T's therapist reported that T had been "very concerned about incidents of violence that reportedly occurred at [Kyle S.'s] home ." In its oral decision, the court expressly found Jayne K.'s testimony to be credible. The court granted the application for a restraining order on the bases of Jayne K.'s credible testimony, all of the evidence, and the incident that had occurred between Kyle S. and his fiancée in February, 2016, that led to this arrest. We previously have recognized that a single incident, coupled with the findings that the subject of the restraining order presently poses a continuous threat, may satisfy the requirement of § 46b-15. Rosemarie B.-F. v. Curtis P. , 133 Conn. App. 472, 477, 38 A.3d 138 (2012) ; see also Putman v. Kennedy , supra, 104 Conn. App. at 34, 932 A.2d 434 (requirement for multiple incidents of physical abuse would defy prophylactic purpose of § 46b-15 ). In the present case, Jayne K. presented evidence of Kyle S.'s altercation with his fiancée and his threat to harm Jayne K. We conclude, therefore, that there was sufficient evidence before the court to prove the existence of a continuous threat of present physical pain or physical injury to Jayne K. Furthermore, it was within the court's discretion to "make such orders as it deems appropriate for the protection of the applicant and such dependent children . as the court sees fit ." (Emphasis added.) General Statutes § 46b-15 (b) ; see also General Statutes § 46b-15 (e). Accordingly, we cannot conclude that the court improperly issued the restraining order to include protection for both Jayne K. and T. B Next, we address Kyle S.'s argument that there was insufficient evidence to support the February 11, 2016 granting of Jayne K.'s application for an emergency ex parte order of custody pursuant to § 46b-56f. Subsection (c) of this statute provides in relevant part: "The court shall order a hearing on any application made pursuant to this section. If, prior to or after such hearing, the court finds that an immediate and present risk of physical danger or psychological harm to the child exists, the court may, in its discretion, issue an emergency order for the protection of the child ." We note that this order was superseded by the August 12, 2016 order. As with an order pursuant to § 46b-15, a § 46b-56f order is not subject to dismissal pursuant to the mootness doctrine. See generally, Putman v. Kennedy , 279 Conn. 162, 164-65, 900 A.2d 1256 (2006) ; Gail R. v. Bubbico , 114 Conn. App. 43, 47 n.5, 968 A.2d 464 (2009). We recite again our standard of review. "The proper standard of proof in a trial on an order of temporary custody is the normal civil standard of a fair preponderance of the evidence.... We note that [a]ppellate 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.... We cannot retry the facts or pass on the credibility of the witnesses.... 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.... With those principles in mind, we will review the evidence presented at the hearing . to determine whether the court's determination is supported by the evidence in the record." (Internal quotation marks omitted.) Garvey v. Valencis , 177 Conn. App. 578, 597, 173 A.3d 51 (2017). As we previously noted, the court heard evidence that Kyle S. engaged in a physical altercation with his fianceé while T was present. Following this incident, the parties exchanged text messages, where Jayne K. indicated that she had spoken with T's teacher. The teacher indicated that T was having a "hard time" and that the teacher was "worried" about him. According to Corson's August 9, 2016 report, T was "very concerned" about the "incidents of violence" at Kyle S.'s home. Courtney Harris, T's babysitter, testified that T became scared, upset and hurt when asked about going to Kyle S.'s home. According to Harris, T's demeanor and behavior improved from February, 2016 through July, 2016, when T was living with Jayne K. In short, there was evidence to support the court's determination that an immediate and present risk of physical danger or psychological harm to T existed at the time of Jayne K.'s application pursuant to § 46b-56f (c). See Garvey v. Valencis , supra, 177 Conn. App. at 597-99, 173 A.3d 51. On the basis of this evidence, we conclude that the evidence was sufficient to support the court's conclusion to sustain the emergency ex parte custody order. II Kyle S. next claims that the court committed plain error by admitting T's mental health reports into evidence following the parties' waiver of T's privileged mental health records. Specifically, he contends that the parties' waiver was invalid because each had a conflict "based on his or her own self-interest to advance his or her own case." We conclude that Kyle S. failed to establish plain error in this case. The following additional facts are necessary for our discussion. At the outset of the August 12, 2016 hearing, Kyle S.'s counsel noted that T had continued his treatment with Corson, that Kyle S. had the opportunity to meet with and speak to Corson, and that it was appropriate for the court to hear Corson's suggestions regarding the familial dynamic. Counsel did note one area of concern: "One of the things, though, that I wanted to make sure of, with no [guardian ad litem] in, is that, you know, from my client's perspective, he wanted to proceed cautiously as far as we don't want this be an absolute and open-ended waiver of the [psychologist]/client privilege that [T] has with Dr. Corson. But we do think that the court's going to want some continuing input from him." After discussing other matters, the court returned to the issue of T's privileged communications with Corson. "There is no guardian in this case. Ordinarily it is the guardian that holds the privilege for the minor child. Right now, as I understand it, the parents, as the co-equal guardians of the child, would hold that privilege ." The court clarified that previously there had been joint custody, but presently a temporary order of custody in favor of Jayne K. was in effect. As a prophylactic measure, the court stated: "I will allow [the privileged material be admitted into evidence] only if mother and father waive that privilege on their child's behalf." Kyle S.'s counsel agreed with the court's caution. Additionally, both parties agreed that they shared the goal of protecting T's privacy. They then agreed that a mental health report regarding T, dated August 9, 2016, should be admitted into evidence. Similarly, on September 23, 2016, and December 9, 2016, the court admitted updated reports from Corson into evidence without objection. General Statutes § 52-146c (b) prohibits a psychologist from disclosing any communications between a person and the psychologist absent a waiver of this privilege. See also Cabrera v. Cabrera , 23 Conn. App. 330, 335, 580 A.2d 1227, cert. denied, 216 Conn. 828, 582 A.2d 205 (1990) ; see generally In re Jacklyn H. , 162 Conn. App. 811, 824, 826, 131 A.3d 784 (2016). In the present case, the parties, the parents of T, consented to the admission into evidence of the mental health screening reports. Indeed, a review of the transcripts reveals that it was Kyle S., acting through his counsel, who advocated for the admission of these documents. On appeal, however, he changed course and now contends that it was plain error for the court to admit the mental health reports of T after soliciting waivers from the parties. "It is well established that the plain error doctrine, codified at Practice Book § 60-5, is an extraordinary remedy used by appellate courts to rectify errors committed at trial that, although unpreserved [and nonconstitutional in nature], are of such monumental proportion that they threaten to erode our system of justice and work a serious and manifest injustice on the aggrieved party. [T]he plain error doctrine . is not . a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, 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.... "There are two prongs of the plain error doctrine; 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.... With respect to the first prong, the claimed error must be patent [or] readily [discernible] on the face of a factually adequate record, [and] also . obvious in the sense of not debatable.... With respect to the second prong, an appellant must demonstrate that the failure to grant relief will result in manifest injustice." (Citations omitted; emphasis omitted; footnote omitted; internal quotation marks omitted). State v. Outlaw , 179 Conn. App. 345, 354-55, 179 A.3d 219, cert. denied, 328 Conn. 910, 178 A.3d 1042 (2018) ; see also State v. McClain , 324 Conn. 782, 812-13, 155 A.3d 209 (2017). We conclude that Kyle S. has failed to establish the first prong of the plain error doctrine. See State v. Bialowas , 178 Conn. App. 179, 190, 174 A.3d 853 (2017) (defendant bore burden of establishing entitlement to relief under plain error doctrine). Specifically, the claimed error of the trial court was neither readily discernible on its face nor obvious in the sense of not debatable. The parties, parents and de facto guardians of T, agreed that the court should review T's mental health reports. Both noted the importance of protecting T's privacy with respect to these records, and agreed it would be beneficial for the court to review Corson's reports. Kyle S. has not provided us with any authority requiring the court in this case to appoint a guardian ad litem, or showing that the parties' agreement to the use of the records by the court was improper. Instead, he merely speculates that, due to their status as "custody combatants," the parties' waiver was done in "his or her own self-interest to advance his or her own case" and thus the parties are disqualified from waiving T's privilege. Additionally, he assumes that T's "treatment records were not offered in his best interests, [as] no [minor] wants it known that he may be in therapy, let alone having his therapist's treatment records in the public domain." Such speculation fails to persuade us that the court committed plain error in accepting the parties' waivers and admitting the exhibits into evidence. See generally In re Samantha S. , 120 Conn. App. 755, 759, 994 A.2d 259 (2010) (speculation and conjecture have no place in appellate review), appeal dismissed, 300 Conn. 586, 15 A.3d 1062 (2011). We conclude, therefore, that Kyle S. failed to meet his burden with respect to his claim of plain error. III Finally, Kyle S. claims that the court improperly delegated its authority to decide his parenting time and custody to a nonjudicial entity. Specifically, he contends that it was error for the court to delegate the determination of the scope, nature and duration of his contact with T to Corson. We agree. The following additional facts are necessary. In the court's December 9, 2016 oral decision, it noted that T had been impacted by the events of the past year. It then discussed the positive effect of T's therapy with Corson. "Again, I'm delighted at the involvement and the progress that [T] has made with Dr. Corson. That is the path for [T] out of this darkness and that will happen in due course. Dr. Corson has been involved in planning with events unfolding as predictably as possible. One of the events that he has to deal with is the effect of this restraining order." After explaining the conditions of its restraining order, the court addressed T's contact with Kyle S. "As far as [T] being involved, I'm going to rely on Dr. Corson. Dr. Corson will dictate the scope of your contact with [T] in a therapeutic setting . Again, I think he's done a marvelous job as I gleaned from the reports that have been submitted to this court and I want that to continue very sincerely. I want there to be normalcy between you and your son. I want to go carefully and delicately so that [T's] needs and wishes are foremost." (Emphasis added.) After Kyle S.'s counsel inquired about the scope of the order, the court explained as follows: "What I'm-what I'm intending-I have two files to work with here. The restraining order-the remedies with a restraining order are rather a sledge hammer. I'm trying to be a little more deft and I am simply in the other file entering an order that says that [Kyle S.'s] contact with [T] will be therapeutic in nature as dictated by Dr. Corson. I want the mental health professional to guide me and I want [Kyle S.'s] contact with [T] to be expandable or contractible in conjunction with the child's needs. So you are correct . I'm not extending any aspect of the temporary restraining order to [T] but, in the other file, the custody file, I am restricting that contact so that the mental health professional can be in charge ." (Emphasis added.) The court further noted that the parties could "clarify" with Corson as needed. "It is well settled authority that [n]o court in this state can delegate its judicial authority to any person serving the court in a nonjudicial function. The court may seek the advice and heed the recommendation contained in the reports of persons engaged by the court to assist it, but in no event may such a nonjudicial entity bind the judicial authority to enter any order or judgment so advised or recommended.... A court improperly delegates its judicial authority to [a nonjudicial entity] when that person is given authority to issue orders that affect the parties or the children. Such orders are part of a judicial function that can be done only by one clothed with judicial authority." (Citation omitted; internal quotation marks omitted.) Keenan v. Casillo , 149 Conn. App. 642, 660, 89 A.3d 912, cert. denied, 312 Conn. 910, 93 A.3d 594 (2014) ; see also Valante v. Valante , 180 Conn. 528, 532-33, 429 A.2d 964 (1980) (rendering of judgment is judicial function and can only be accomplished by one clothed with judicial authority); Nashid v. Andrawis , 83 Conn. App. 115, 120, 847 A.2d 1098 (while judicial authority may seek advice and recommendations, in no event may nonjudicial entity bind judicial authority to enter any order or judgment), cert. denied, 270 Conn. 912, 853 A.2d 528 (2004). In the present case, Kyle S. argues that the court improperly delegated the determination of parenting time and custodial rights to Corson. We agree. The court expressly stated that it would "rely" on Corson with respect to issues involving T It noted that Corson would "dictate" the scope of Kyle S.'s contact with T in a therapeutic setting. After Kyle S.'s counsel sought a further explanation, the court iterated and emphasized Corson's role in determining the contact between T and Kyle S. It further ordered that this contact was subject to expansion or contraction depending on T's needs and that Corson would be "in charge." The court's orders regarding Kyle S.'s contact with T constituted an impermissible delegation of judicial authority to Corson. Pursuant to the orders of the court, Corson was to "dictate" the scope of the contact between Kyle S. and T, and Corson was authorized to increase or decrease said contact as he saw fit. The court also noted that Corson was "in charge." We recognize that "[a] court is permitted to seek advice, and accept recommendations from [a nonjudicial entity]." Keenan v. Casillo , supra, 149 Conn. App. at 661, 89 A.3d 912. Here, the court advanced past that point, and instead granted decision making authority to Corson. Valante v. Valante , supra, 180 Conn. at 532-33, 429 A.2d 964 ; Weinstein v. Weinstein , 18 Conn. App. 622, 628-29, 561 A.2d 443 (1989). Put another way, the court in the present case improperly removed itself from the decision making process by permitting Corson to decide the nature and scope of Kyle S.'s contact with T. See, e.g., Zilkha v. Zilkha , 180 Conn. App. 143, 171-72, 183 A.3d 64 (2018) (contrary to parties' claim of improper delegation, court properly considered and fully resolved custody and visitation issues). The judgment in the dissolution action is reversed only as to the orders providing that a nonjudicial entity determine the contact between Kyle S. and T and the case is remanded for further proceedings solely as to that issue; the judgment in that action is affirmed in all other respects. The judgment in the application for relief from abuse action is affirmed. In this opinion the other judges concurred. This appeal comes to us from two distinct yet intertwined files from the Superior Court. In the divorce and custody action, Docket No. FA-08-4016382-S, Kyle S. was the plaintiff and Jayne K. the defendant. In the relief from abuse action, Docket No. FA-16-4038505-S, Jayne K. was the applicant and Kyle S. the respondent. For purposes of clarity and consistency, we refer to the parties by name in this opinion. We also note that Jayne K. represented herself in the proceedings before the trial court. On June 30, 2017, we ordered that the appeal would be considered solely on the basis of the record and Kyle S.'s brief and oral argument as a result of Jayne K's failure to file her brief by the established deadline. See, e.g., Ellen S. v. Katlyn F. , 175 Conn. App. 559, 560 n.1, 167 A.3d 1182 (2017) ; Gail R. v. Bubbico , 114 Conn. App. 43, 45 n.1, 968 A.2d 464 (2009). In the middle of a flurry of postjudgment child related filings, the court reappointed Maluszewski as guardian ad litem on November 10, 2011. The record does not reveal when thereafter Maluszewski ceased acting as T's guardian ad litem. At the July 25, 2016 hearing, the court noted that there was no guardian ad litem in the case. General Statutes § 46b-56f provides in relevant part: "(a) Any person seeking custody of a minor child pursuant to section 46b-56 or pursuant to an action brought under section 46b-40 may make an application to the Superior Court for an emergency ex parte order of custody when such person believes an immediate and present risk of physical danger or psychological harm to the child exists. "(b) The application shall be accompanied by an affidavit made under oath which includes a statement (1) of the conditions requiring an emergency ex parte order, (2) that an emergency ex parte order is in the best interests of the child, and (3) of the actions taken by the applicant or any other person to inform the respondent of the request or, if no such actions to inform the respondent were taken, the reasons why the court should consider such application on an ex parte basis absent such actions." "General Statutes § 46b-56 provides trial courts with the statutory authority to modify an order of custody or visitation. When making that determination, however, a court must satisfy two requirements. First, modification of a custody award must be based upon either a material change [in] circumstances which alters the court's finding of the best interests of the child . or a finding that the custody order sought to be modified was not based upon the best interests of the child.... Second, the court shall consider the best interests of the child and in doing so may consider several factors.... Before a court may modify a custody order, it must find that there has been a material change in circumstances since the prior order of the court, but the ultimate test is the best interests of the child.... These requirements are based on the interest in finality of judgments . and the family's need for stability.... The burden of proving a change to be in the best interest of the child rests on the party seeking the change." (Citations omitted; emphasis omitted; footnotes omitted; internal quotation marks omitted.) Petrov v. Gueorguieva , 167 Conn. App. 505, 511-12, 146 A.3d 26 (2016). General Statutes § 46b-15 (a) provides: "Any family or household member, as defined in section 46b-38a, who has been subjected to a continuous threat of present physical pain or physical injury, stalking or a pattern of threatening, including, but not limited to, a pattern of threatening, as described in section 53a-62, by another family or household member may make an application to the Superior Court for relief under this section. The court shall provide any person who applies for relief under this section with the information set forth in section 46b-15b." As former spouses, Kyle S. and Jayne K. fall within the statutory definition of "family or household member." General Statutes § 46b-38a (2) (A) ; see also Princess Q. H. v. Robert H. , 150 Conn. App. 105, 113 n.4, 89 A.3d 896 (2014). Additionally, "[t]he court, in its discretion, may make such orders as it deems appropriate for the protection of the applicant and such dependent children or other persons as the court sees fit." General Statutes § 46b-15 (b). The parties stipulated that the state nolled all of the charges against Kyle S. stemming from this incident on July 13, 2016, involving his fiancée. After a hearing on March 18, 2016, the court extended the restraining order against Kyle S. to February 19, 2017. As we have noted, the restraining order expired on February 19, 2017. Despite the expiration of the restraining order, Kyle S.'s appellate claim is not subject to dismissal pursuant to the mootness doctrine. In Putman v. Kennedy , 279 Conn. 162, 164-65, 900 A.2d 1256 (2006), our Supreme Court concluded that the adverse collateral consequences exception to the mootness doctrine applied to appeals from domestic violence restraining orders. See also Rosemarie B.-F. v. Curtis P. , 133 Conn. App. 472, 475, 38 A.3d 138 (2012) (same); Jayne S. v. Kyle S. , supra, 116 Conn. App. at 692, 978 A.2d 94 (same); Gail R. v. Bubbico , supra, 114 Conn. App. at 47 n.5, 968 A.2d 464 (appeal of restraining order issued pursuant to § 46b-15 rescued from mootness by collateral consequences doctrine). Jayne K. acknowledged, however, that she could not recall the words used by Kyle S., only that he had threatened her. In passing, Kyle S. notes that Jayne K.'s application for an emergency ex parte order of custody included an "appended motion for modification of custody." Jayne K., however, failed to adequately brief, and thus abandoned any challenge on appeal, to the court's granting of the motion for modification of custody. Specifically, Kyle S.'s counsel stated: "That makes sense, your Honor.... I think in fairness to both parties, it probably would be a good idea that if this came in, that they would-they would end up waiving the privilege." The report from the September 23, 2016 proceeding is not listed on the exhibit list and is not included in the exhibits provided to this court. We note that General Statutes § 45a-606 provides in relevant part: "The father and mother of every minor child are joint guardians of the person of the minor, and the powers, rights and duties of the father and the mother in regard to the minor shall be equal." See also In re Tayquon H. , 76 Conn. App. 693, 698, 821 A.2d 796 (2003) (mother and father of minor child are de facto guardians of that child). It would appear that Kyle S., at least in part, induced the claimed error of the trial court by his actions regarding the admission of the mental health reports. The appellate courts of this state have recognized the uncertainty in our law regarding whether claims of induced error may be considered under the plain error doctrine. See State v. Darryl W. , 303 Conn. 353, 371 n.17, 33 A.3d 239 (2012) ; Healey v. Haymond Law Firm, P.C. , 174 Conn. App. 230, 243-44, 166 A.3d 10 (2017) ; State v. Rios , 171 Conn. App. 1, 47-48, 156 A.3d 18, cert. denied, 325 Conn. 914, 159 A.3d 232 (2017). Generally, even in instances of induced error, courts have considered claims of plain error. However, on remand, we believe the court should seriously consider appointing counsel for the minor child, T, in order for T, through counsel, to have the opportunity to argue whether his privacy rights in these records should be protected.

12498451

ASIA A.M. v. GEOFFREY M., JR. Geoffrey M., Jr. v. Asia A.M.

Asia A.M. v. Geoffrey M.

2018-05-15

AC 39208

762

773

188 A.3d 762

188

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-09-08T21:16:17.237805+00:00

Fastcase

ASIA A.M. v. GEOFFREY M., JR.

ASIA A.M. v. GEOFFREY M., JR. Geoffrey M., Jr. v. Asia A.M. AC 39208 Appellate Court of Connecticut. Argued January 11, 2018 Officially released May 15, 2018 Joan M. Andrews, assistant attorney general, with whom were Sean O. Kehoe, assistant attorney general, and, on the brief, George Jepsen, attorney general, for the appellant (state). Richard A. Rochlin, Hartford, with whom was Jennifer R. Flynn, for the appellee (defendant in the first case, plaintiff in the second case). Robert B. McLaughlin, for the guardian ad litem of the minor child. Lavine, Keller and Harper, Js. The full names of the parties involved in this appeal are not disclosed.

6100

36761

HARPER, J. The state of Connecticut appeals from the judgments of the trial court rendered in favor of the plaintiff, Geoffrey M., Jr., affirming in part the decision of the family support magistrate (magistrate) that opened an acknowledgment of paternity. On appeal, the state claims that the court erred in concluding that (1) Ragin v. Lee , 78 Conn. App. 848, 829 A.2d 93 (2003), provided a nonstatutory ground for opening an acknowledgment of paternity, apart from the statutory grounds set forth in General Statutes (Rev. to 2011) § 46b-172 (a) (2) ; and (2) the magistrate had the inherent authority to grant the plaintiff's motion to open the judgment on the basis of the best interests of the child. We agree with the department and, accordingly, reverse the judgments of the trial court. The following facts and procedural history are relevant to our resolution of this appeal. On April 26, 2011, the plaintiff and the defendant, Asia A. M., executed a written acknowledgment of paternity (acknowledgment) for the minor child, who was born in February, 2011. See General Statutes (Rev. to 2011) § 46b-172 (a) (1). On October 28, 2014, the state filed a support petition against the plaintiff in the name of the defendant. On December 9, 2014, the plaintiff filed a motion to open the judgment pursuant to § 46b-172, challenging the validity of the acknowledgment on the grounds of fraud, mistake of fact, and duress. Specifically, in his affidavit accompanying his motion to open, the plaintiff averred that (1) the defendant committed fraud by "intentionally conceal[ing] the fact that she had sexual relations with other men" and "represent[ing] to the plaintiff that they were in a sexually exclusive relationship"; (2) a DNA test demonstrated "that there is a 0 percent chance that [the plaintiff] could be the biological father of the minor child" and "[t]he fact of the plaintiff being the biological father is . a mistake of fact"; and (3) "[t]he plaintiff was under duress from the pressure being applied to him by the defendant and other family members, and [he] felt compelled to sign this acknowledgment due to this duress." The plaintiff further averred in his affidavit that "[t]he plaintiff does not have a [parent-child] relationship with the minor child at this time . and it is in the best interests of the minor child" to establish the biological father. On January 6, 2015, the state's support petition and the plaintiff's motion to open were consolidated for a hearing. On February 24, 2015, a hearing was held on the plaintiff's motion to open before a magistrate. On March 3, 2015, relying on Ragin v. Lee , supra, 78 Conn. App. at 848, 829 A.2d 93, the magistrate granted the plaintiff's motion to open the judgment, ordered a judgment of nonpaternity, and ordered the dismissal of the department's support petition. In its written order, the magistrate concluded that "[t]he plaintiff clearly and convincingly proved it is in the best interest of the minor child to open the judgment. A minor child has a fundamental and independent right and compelling interest in an accurate determination of paternity. [ Id., at 863, 829 A.2d 93 ].... While the plaintiff did prove it is in the best interest of the child to open the judgment, he failed to prove any of the statutory grounds of fraud, duress or . mistake. See [General Statutes (Rev. to 2011) ] § 46b-172 (a) (2).... The credible evidence clearly indicates the plaintiff was aware he was not the biological father of the minor child when he executed the acknowledgment. The defendant did not defraud the plaintiff at the time he signed the acknowledgment. The plaintiff was not under duress when he signed the acknowledgment. The parties were not . mistaken when the acknowledgment was executed. The motion to open is granted solely based upon the best interest of the minor child." On March 17, 2015, the state appealed from the decision of the magistrate to the trial court pursuant to General Statutes § 46b-231 (n) and Practice Book § 25a-29, claiming, inter alia, that "[i]n the absence of fraud, duress or mistake, the [m]agistrate lacked the [authority] to open the judgment of paternity ." A hearing took place on May 5, 2015, before the court, and the parties filed posthearing briefs. On March 29, 2016, the court affirmed the decision of the magistrate in part, and remanded the case to the magistrate to hear additional evidence with respect to the best interests of the child. In its memorandum of decision, the court held that (1) Ragin v. Lee , supra, 78 Conn. App. at 848, 829 A.2d 93, provided a fourth, nonstatutory ground to open a judgment of paternity, apart from the statutory requirements set forth in § 46b-172 (a) (2); and (2) the magistrate had the inherent authority to open the judgment on the basis of the best interests of the minor child. The court further held, however, that "it was an error of law for the magistrate to open the judgment . based solely on the results of genetic testing, without sufficient evidence as to other factors affecting the best interests of the child." On April 11, 2016, the state filed a motion to reargue, which the court denied on April 28, 2016. This appeal followed. We begin by setting forth the applicable standard of review. The state's claims present a question of law over which our review is plenary. See Pritchard v. Pritchard , 103 Conn. App. 276, 283, 928 A.2d 566 (2007) ("[i]ssues of statutory construction raise questions of law, over which we exercise plenary review" [internal quotation marks omitted] ); see also Commissioner of Social Services v. Zarnetski , 175 Conn. App. 632, 637, 168 A.3d 646 (2017). "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.) Ragin v. Lee , supra, 78 Conn. App. at 855, 829 A.2d 93. I The state claims that the "court erred in concluding that Ragin v. Lee , [supra, 78 Conn. App. at 848, 829 A.2d 93 ], provides a fourth and independent ground to open an acknowledgment of paternity," apart from the requirements set forth in § 46b-172 (a) (2). The state contends that, pursuant to § 46b-172 (a) (2), absent a finding of fraud, duress, or material mistake of fact, the magistrate lacked the authority to open the judgment outside of the rescission period, and that the court "erred in finding that the [f]amily [s]upport [m]agistrate . did not have to comply with the statutory criteria of . § 46b-172." In response, the plaintiff and the attorney for the guardian ad litem claim that the court properly concluded that the best interests of the child is a nonstatutory ground for opening an acknowledgment of paternity. We agree with the state. Paternity may be acknowledged voluntarily and extrajudicially through a written acknowledgment of paternity. See General Statutes (Rev. to 2011) § 46b-172 (a) (1). "[T]he acknowledgment procedure provides an alternative to a full scale judicial proceeding, and an agreement reached pursuant to it does not require court approval. The acknowledgment procedure may be followed [i]n lieu of or in conclusion of a paternity action initiated pursuant to [General Statutes] § 46b-160." (Internal quotation marks omitted.) Cardona v. Negron , 53 Conn. App. 152, 154 n.4, 728 A.2d 1150 (1999). Section 46b-172 (a) (1) sets forth the process by which an acknowledgment may be executed, including the required notices that must be provided to the parties. An executed "acknowledgment of paternity . shall have the same force and effect as a judgment of the Superior Court." General Statutes (Rev. to 2011) § 46b-172 (a) (1). "The mother and the acknowledged father shall have the right to rescind such affirmation or acknowledgment in writing within the earlier of (A) sixty days, or (B) the date of an agreement to support such child approved in accordance with subsection (b) of this section or an order of support for such child entered in a proceeding under subsection (c) of this section. An acknowledgment executed in accordance with subdivision (1) of this subsection may be challenged in court or before a family support magistrate after the rescission period only on the basis of fraud, duress or material mistake of fact which may include evidence that he is not the father, with the burden of proof upon the challenger." General Statutes (Rev. to 2011) § 46b-172 (a) (2). In the present case, the plaintiff and the defendant executed the acknowledgment on April 26, 2011. The plaintiff filed a motion to open the judgment more than three years later, on December 9, 2014. Because the plaintiff did not rescind the acknowledgment within sixty days, he could challenge it "only on the basis of fraud, duress or material mistake of fact." (Emphasis added.) General Statutes (Rev. to 2011) § 46b-172 (a) (2); see also General Statutes (Rev. to 2011) § 46b-172 (a) (1) ("the acknowledgment cannot be challenged after sixty days, except in court upon a showing of fraud, duress or material mistake of fact"). In its written order, the magistrate explicitly found that there was no fraud, duress, or mistake of fact, stating that "[t]he credible evidence clearly indicates the plaintiff was aware he was not the biological father of the minor child when he executed the acknowledgment. The defendant did not defraud the plaintiff at the time he signed the acknowledgment. The plaintiff was not under duress when he signed the acknowledgment. [The defendant and the plaintiff] were not . mistaken when the acknowledgment was executed." Consequently, pursuant to § 46b-172 (a) (2), the magistrate lacked the authority to consider the plaintiff's motion to open the judgment. Despite this, the magistrate granted the plaintiff's motion to open because it concluded that it was in the child's best interests to do so. Relying on this court's decision in Ragin v. Lee , supra, 78 Conn. App. at 848, 829 A.2d 93, the magistrate concluded that "[t]he plaintiff clearly and convincingly proved it is in the best interest of the minor child to open the judgment." The trial court similarly concluded that Ragin created an independent ground for granting a motion to open a judgment of paternity on the basis of the best interests of the child. Therefore, we first must determine whether this court held in Ragin that a court may open a judgment of paternity, absent a finding of fraud, duress, or material mistake of fact as required by § 46b-172 (a) (2), solely because it is in the best interests of the child to do so. We conclude that it did not. In Ragin , the magistrate rendered a default judgment of paternity against the defendant after he failed to appear at the paternity action, which was initiated by the Commissioner of Social Services on behalf of the state pursuant to General Statutes § 46b-162. Id., at 850, 829 A.2d 93. Counsel for the minor child timely filed a motion to open the default judgment, alleging that (1) there was insufficient service of process on the defendant and he did not receive actual notice of the proceedings, and (2) it was in the best interests of the child to open the judgment and order genetic testing to eliminate any doubt regarding the child's biological father. Id., at 851, 852, 829 A.2d 93. A hearing was held on the motion to open, but the magistrate did not render a decision on the motion at that time. Id., at 853, 829 A.2d 93. The state then appealed to the trial court, claiming, inter alia, that the magistrate lacked the authority to consider the merits of the child's motion to open. Id., at 854, 829 A.2d 93. The trial court agreed with the state and reversed the decision of the magistrate. Id. Counsel for the minor child appealed to this court. Id. On appeal, this court addressed two issues: (1) whether there was an appealable final judgment; and (2) whether the minor child had standing to file the motion to open. Id., at 850, 829 A.2d 93. Importantly, nowhere in the opinion did this court state that the best interests of the child was a basis for opening the judgment as an alternative to the applicable statutory requirements. Rather, this court discussed the best interests of the child in considering the second issue raised on appeal-whether the minor child had standing to file the motion to open. Id., at 861-62, 829 A.2d 93. This court held that the minor child did have standing because, inter alia, "a child who is the subject of a paternity action has a fundamental interest in an accurate determination of paternity that is independent of the state's interest in establishing paternity for the benefit of obtaining payment for the child's care and any interest that the parents may have in the child." Id., at 863, 829 A.2d 93. Thus, this court vacated the judgment of the trial court and remanded the case "to the . magistrate for further proceedings with direction also to consider the child's motion to open the default judgment of paternity ." Id., at 864, 829 A.2d 93. Counsel for the minor child still needed to and did actually comply with the relevant statutory requirements for filing a motion to open a default judgment of paternity. See General Statutes § 52-212 (a). Ragin did not, however, create an independent ground for opening a judgment of paternity on the basis of the best interests of the child, in lieu of any applicable statutory requirements. Indeed, it is not the province of this court to create an independent basis for opening a judgment that is governed by statute. It is well established that "[i]t is not the function of the courts to enhance or supplement a statute containing clearly expressed language." (Internal quotation marks omitted.) McCullough v. Swan Engraving, Inc. , 320 Conn. 299, 309, 130 A.3d 231 (2016). Rather, "[w]e are obligated to construe a statute as written. . Courts may not by construction supply omissions . or add exceptions . It is axiomatic that the court itself cannot rewrite a statute . That is a function of the legislature." (Internal quotation marks omitted.) In re Quidanny L. , 159 Conn. App. 363, 371, 122 A.3d 1281, cert. denied, 319 Conn. 906, 122 A.3d 639 (2015) ; see also Doe v. Norwich Roman Catholic Diocesan Corp. , 279 Conn. 207, 215-16, 901 A.2d 673 (2006). Here, the legislature clearly and unambiguously has set forth the three grounds on which an acknowledgment of paternity may be challenged in court. See General Statutes (Rev. to 2011) § 46b-172 (a) (2). Absent a finding of fraud, duress, or material mistake of fact, an acknowledgment of paternity may not be challenged in court. As set forth previously, the magistrate found that the plaintiff "failed to prove any of the statutory grounds of fraud, duress or . mistake." The trial court found "ample support in the record for [the] factual finding by the magistrate" that the plaintiff "was aware when he executed the acknowledgment that he was not [the child's] biological father," and the court did not disturb the magistrate's findings that the plaintiff failed to establish fraud, duress, or material mistake of fact. Because the statutory criteria set forth in § 46b-172 (a) (2) were not satisfied, the magistrate lacked the authority to open the judgment of paternity. On the basis of the foregoing, we conclude that the trial court erred in determining that the magistrate had the authority to open the judgment solely on the basis of the best interests of the child. II The state next claims that the trial court erred in concluding that the magistrate had the inherent authority to open the judgment of paternity. Specifically, the state claims that the family support magistrate division is a court of limited jurisdiction, and "such authority is not included in the magistrate's enabling statute . § 46b-231 (m), or the acknowledgment of paternity statute . § 46b-172." The state further contends that "[g]iven the magistrate's factual findings, specifically that fraud, mistake or duress [were] not proven, the magistrate court lacked the authority to open the judgment of paternity, pursuant to . § 46b-172 ." (Citation omitted.) In response, the plaintiff argues that a magistrate "may, pursuant to [its] inherent authority, open a judgment of paternity, when acting reasonably, the magistrate finds good cause to do so, regardless of finding fraud, duress, or mistake. Good cause may be based on the 'best interests of the child' standard." We agree with the state. "[T]he legislature, by the passage of § 46b-231 (d), created the family support magistrate division of the [S]uperior [C]ourt for the purpose of the impartial administration of child and spousal support." (Internal quotation marks omitted.) O'Toole v. Hernandez , 163 Conn. App. 565, 572-73, 137 A.3d 52, cert. denied, 320 Conn. 934, 134 A.3d 623 (2016) ; see also General Statutes § 46b-231 (d). Section 46b-231 (m) lists the "powers and duties" of magistrates. "As a creature of statute, the family support magistrate division has only that power that has been expressly conferred on it." Pritchard v. Pritchard , supra, 103 Conn. App. at 284, 928 A.2d 566. It is undisputed that no statutory provision exists that expressly grants the family support magistrate division the power to open an acknowledgment of paternity on the basis of the best interests of the child. The trial court determined, however, that the magistrate had the inherent authority to open the judgment. We disagree. "The authority of family support magistrates is defined and limited by statute." (Internal quotation marks omitted.) O'Toole v. Hernandez , supra, 163 Conn. App. at 573, 137 A.3d 52. Although "[o]ur courts have the inherent authority to open, correct, or modify judgments . this authority is restricted by statute and the rules of practice." Jonas v. Playhouse Square Condominium Assn., Inc. , 173 Conn. App. 36, 39, 161 A.3d 1288 (2017) ; see also Cornfield Associates Ltd. Partnership v. Cummings , 148 Conn. App. 70, 75, 84 A.3d 929 (2014), cert. denied, 315 Conn. 929, 110 A.3d 433 (2015). The power of the family support magistrate division is limited by § 46b-172 (a) (2), which clearly states that an acknowledgment of paternity "may be challenged in court or before a family support magistrate after the rescission period only on the basis of fraud, duress or material mistake of fact ." (Emphasis added.) In its memorandum of decision, the court acknowledged that "§ 46b-172 (a) (2) limits the grounds for opening [a] judgment that may be asserted belatedly by the parties to an acknowledgment of paternity," but nonetheless concluded that "[i]t does not limit the court's inherent authority" to open the judgment. See Paddock v. Paddock , 22 Conn. App. 367, 372, 577 A.2d 1087 (1990) ("The authority to open and vacate a judgment is within the inherent power of the trial courts. . A motion to open and vacate should be granted when the court, acting reasonably, finds good cause to do so." [Citation omitted.] ). In so holding, the court impermissibly has contravened the statutory requirements set forth in § 46b-172 (a) (2). See also General Statutes (Rev. to 2011) § 46b-172 (a) (1) ("the acknowledgment cannot be challenged after sixty days, except in court upon a showing of fraud, duress or material mistake of fact"). We reiterate that "[c]ourts may not by construction supply omissions . or add exceptions [to statutes] merely because it appears that good reasons exist for adding them." (Internal quotation marks omitted.) Vincent v. New Haven , 285 Conn. 778, 792, 941 A.2d 932 (2008). The plaintiff's motion to open was governed by § 46b-172 (a) (2). Beyond the sixty day rescission period, and absent a finding of fraud, duress, or material mistake of fact, the magistrate did not have the authority to grant the motion to open the judgment. See part I of this opinion. On the basis of the foregoing, we conclude that the trial court erred in determining that the magistrate had the inherent authority to open the acknowledgment on the basis of the best interests of the child. The judgments are reversed and the cases are remanded for further proceedings. In this opinion, LAVINE, J., concurred. This appeal was taken from two consolidated cases in which Geoffrey M., Jr., was the defendant in the first case and the plaintiff in the second case. For the purposes of this opinion, and consistent with the parties' briefs on appeal, we refer to Geoffrey M., Jr., as the plaintiff and to Asia A. M. as the defendant. The state, as an interested party providing HUSKY health insurance benefits to the child, filed a support petition on behalf of defendant, the child's mother; see General Statutes § 46b-231 (t) (3) and (u) (1) ; and has appealed on behalf of the Office of Child Support Services of the Department of Social Services; see General Statutes § 46b-207 ; which is acting on behalf of the mother. See Walsh v. Jodoin , 283 Conn. 187, 191 n.2, 925 A.2d 1086 (2007) ; Esposito v. Banning , 110 Conn. App. 479, 480 n.1, 955 A.2d 609 (2008). Hereinafter, unless otherwise indicated, all references to § 46b-172 in this opinion are to the 2011 revision of the statute. Pursuant to § 46b-172 (a) (1), an "acknowledgment of paternity . shall have the same force and effect as a judgment of the Superior Court." Accordingly, any reference herein to the motion to open the judgment refers to the acknowledgment of paternity, which, by statute, had the force and effect of a judgment. General Statutes § 46b-231 (n) (1) provides that "[a] person who is aggrieved by a final decision of a family support magistrate is entitled to judicial review by way of appeal under this section." Practice Book § 25a-29 provides that "[a]ny person who is aggrieved by a final decision of a family support magistrate may appeal such decision in accordance with the provisions of . § 46b-231. The appeal shall be instituted by the filing of a petition which shall include the reasons for the appeal." "It is axiomatic that the jurisdiction of an appellate tribunal is limited to appeals from judgments that are final." Cardona v. Negron , 53 Conn. App. 152, 156, 728 A.2d 1150 (1999). "[A]n order opening a judgment ordinarily is not a final judgment within [the meaning of General Statutes] § 52-263.... [Our Supreme Court], however, has recognized an exception to this rule where the appeal challenges the power of the [trial] court to act to set aside the judgment." (Internal quotation marks omitted.) U.S. Bank National Assn. v. Works , 160 Conn. App. 49, 57, 124 A.3d 935, cert. denied, 320 Conn. 904, 127 A.3d 188 (2015) ; see also Solomon v. Keiser , 212 Conn. 741, 746-47, 562 A.2d 524 (1989). Because the state challenges the authority of the court to open the judgment, the present case is an appealable final judgment. General Statutes (Rev. to 2011) § 46b-172 (a) (1) provides, in relevant part, that "a written acknowledgment of paternity executed and sworn to by the putative father of the child when accompanied by (A) an attested waiver of the right to a blood test, the right to a trial and the right to an attorney, and (B) a written affirmation of paternity executed and sworn to by the mother of the child shall have the same force and effect as a judgment of the Superior Court. It shall be considered a legal finding of paternity without requiring or permitting judicial ratification, and shall be binding on the person executing the same whether such person is an adult or a minor, subject to subdivision (2) of this subsection. Such acknowledgment shall not be binding unless, prior to the signing of any affirmation or acknowledgment of paternity, the mother and the putative father are given oral and written notice of the alternatives to, the legal consequences of, and the rights and responsibilities that arise from signing such affirmation or acknowledgment. The notice to the mother shall include, but shall not be limited to, notice that the affirmation of paternity may result in rights of custody and visitation, as well as a duty of support, in the person named as father. The notice to the putative father shall include, but not be limited to, notice that such father has the right to contest paternity, including the right to appointment of counsel, a genetic test to determine paternity and a trial by the Superior Court or a family support magistrate and that acknowledgment of paternity will make such father liable for the financial support of the child until the child's eighteenth birthday. In addition, the notice shall inform the mother and the father that DNA testing may be able to establish paternity with a high degree of accuracy and may, under certain circumstances, be available at state expense. The notices shall also explain the right to rescind the acknowledgment, as set forth in subdivision (2) of this subsection, including the address where such notice of rescission should be sent, and shall explain that the acknowledgment cannot be challenged after sixty days, except in court upon a showing of fraud, duress or material mistake of fact." In its memorandum of decision, the court states that "[t]he trial courts of Connecticut have been divided in their view of whether, under Ragin , there is a so-called 'fourth ground' for opening a judgment of paternity," and the court cites to the decisions that it alleges similarly have concluded that Ragin permits a judgment of paternity to be opened on the basis of the best interests of the child, in the absence of fraud, duress, or material mistake of fact. We note, however, that those courts did not consider the motion to open the judgment solely on the basis of the best interests of the child. See, e.g., Oppelt v. Oppelt , Superior Court, judicial district of Hartford, Docket Nos. FA-09-4047137-S, FA-09-4045512-S, 2011 WL 4716263 (September 21, 2011) (noting that best interest of child provides basis for opening judgment, but opening judgment because there were "significant and meaningful procedural irregularities in this matter which deprived the defendant of the due process afforded to him," namely that "the acknowledgment was not executed in accordance with the provisions of . § 46b-172"); Campbell v. Barrow , Superior Court, judicial district of Hartford, Docket No. FA030634839, 2004 WL 3130590 (December 28, 2004) (noting that best interests of child may provide "further basis to open the paternity judgment," but opening and setting aside acknowledgment of paternity because "the defendant did not fully comprehend or assent to a full waiver of his rights under § 46b-172 (a) (1)" and, therefore, statutory requirements were not followed). We note that the grounds set forth in § 52-212 (a) for opening a court judgment, the statute at issue in Ragin , differs from the grounds set forth in § 46b-172 (a) (2) for voiding an acknowledgment of paternity. General Statutes § 52-212 (a) provides in relevant part that "[a]ny judgment rendered . upon a default . in the Superior Court may be set aside, within four months following the date on which it was rendered . and the case reinstated on the docket, on such terms in respect to costs as the court deems reasonable, upon the complaint or written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of the judgment . and that the plaintiff or defendant was prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense." The legislature has included the best interests of the child elsewhere as a basis for the magistrate's authority. See, e.g., General Statutes § 46b-231 (m) (8) ("[a]greements between parties as to custody and visitation of minor children . shall be reviewed by a family support magistrate, who shall approve the agreement unless he finds such agreement is not in the best interests of the child"). If the legislature had intended for the best interests of the child to be a ground upon which to challenge an acknowledgment of paternity in court, we presume that it would have included such language in § 46b-172 (a) (2). See State v. Kevalis , 313 Conn. 590, 604, 99 A.3d 196 (2014) ("it is a well settled principle of statutory construction that the legislature knows how to convey its intent expressly" [internal quotation marks omitted] ). To the extent that the plaintiff suggests that the best interests of the child should be a basis upon which an acknowledgment of paternity may be challenged in court or before a magistrate, that is an issue for our legislature to address. The plaintiff and the attorney for the guardian ad litem also argue on appeal that the magistrate erred in finding no evidence of fraud. Specifically, they argue that the plaintiff and the defendant committed fraud on the state, on the child, and on the child's biological father by executing the acknowledgment when the plaintiff and the defendant both knew that the plaintiff was not the child's biological father. We do not address these claims of fraud because, as the state asserts, and the attorney for the guardian ad litem conceded at oral argument in this appeal, the claims were not raised at trial. The claim of fraud raised at trial was that the defendant had committed fraud on the plaintiff. See DiGiuseppe v. DiGiuseppe , 174 Conn. App. 855, 864, 167 A.3d 411 (2017) ("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 . We will not promote a Kafkaesque academic test by which [a trial judge] may be determined on appeal to have failed because of questions never asked of [him] or issues never clearly presented to [him]." [Citation omitted; internal quotation marks omitted.] ); see also State v. Hilton , 45 Conn. App. 207, 222, 694 A.2d 830, cert. denied, 243 Conn. 925, 701 A.2d 659 (1997), cert. denied, 522 U.S. 1134, 118 S.Ct. 1091, 140 L.Ed. 2d 147 (1998). We note that we certainly find it concerning that the parties, as they allege, have committed fraud on the state. We cannot, however, make this finding of fact. See McTiernan v. McTiernan , 164 Conn. App. 805, 830, 138 A.3d 935 (2016) ("[I]t is axiomatic that this appellate body does not engage in fact-finding. Connecticut's appellate courts cannot find facts; that function is, according to our constitution, our statute, and our cases, exclusively assigned to the trial courts." [Internal quotation marks omitted.] ). In its current form, § 46b-172 is susceptible to being misused by parties in the manner discussed in the present case. See footnote 10 of this opinion. Thus, we look favorably on Judge Keller's concurring opinion in the present case, which sets forth a suggested revision of the statute that would help to achieve accuracy in the acknowledgment of paternity process.

12489338

IN RE HENRRY P. B.-P.

In re Henrry P. B.-P.

2017-02-24

AC 39276, (AC 39787)

673

693

156 A.3d 673

156

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-09-08T21:16:17.237805+00:00

Fastcase

IN RE HENRRY P. B.-P.

IN RE HENRRY P. B.-P. AC 39276, (AC 39787) Appellate Court of Connecticut. Argued January 20, 2017 Officially released February 24, 2017 Enelsa Diaz, with whom were Giovanna Shay and, on the brief, Kelly Bonafé, for the appellants (petitioner et al.). Edwin D. Colon filed a brief for the Center for Children's Advocacy, Inc., as amicus curiae. Lavine, Mullins 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. February 24, 2017, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

12188

74284

BEAR, J. These appeals highlight the limitations that courts encounter when relevant statutes provide rights, opportunities, or protections for minor children that end when they reach the age of majority, thus losing their status as juveniles. In this case, what Henrry P. B.-P. (Henrry) faces, because of Connecticut's current statutory structure, is his inability to have the Probate Court consider and make the findings that are necessary for him to petition the federal government to remain in this country. The law that we are constrained to apply, as an intermediate appellate court, in our plenary review of the relevant legal issues raised in these consolidated appeals is set forth in two recent Supreme Court opinions, In re Jose B. , 303 Conn. 569, 34 A.3d 975 (2012), and In re Jessica M. , 303 Conn. 584, 35 A.3d 1072 (2012). See also In re Pedro J.C. , 154 Conn.App. 517, 543 n.22, 105 A.3d 943 (2014). We conclude, on the basis of that law, that after Henrry reached the age of majority, the Probate Court lacked statutory authority to make the findings required by the petitions filed by his mother, the petitioner, Reyna P. A., to appoint a coguardian for Henrry, and to consider and make the special immigration juvenile status (juvenile status) findings permitted by General Statutes § 45a-608n (b) for minor children. Accordingly, we affirm the judgments of the Superior Court dismissing the appeals from the decisions of the Probate Court. The following factual and procedural history is relevant to these appeals. Approximately five weeks before Henrry reached age eighteen, the petitioner, on March 1, 2016, filed a petition in the Probate Court seeking the removal of his deceased father as his guardian and the appointment of a nonrelative, her boyfriend, Santos O. R., as coguardian of Henrry with her. The petitioner represented in that petition that Henrry had been abandoned by his father in the sense that he had failed to maintain a reasonable degree of interest, concern or responsibility for Henrry's welfare; that Henrry had been denied the care, guidance or control necessary for his physical, educational, moral, or emotional well-being as a result of acts of parental commission or omission as defined by law; and that Henrry was neglected or uncared for, as defined in General Statutes § 46b-120. Also on March 1, 2016, the petitioner filed a petition for special immigrant juvenile findings under 8 U.S.C. § 1101 (a) (27) (J) (2012). Despite the petitioner's request, the Probate Court did not take action prior to Henrry's eighteenth birthday on either of the petitions. The first appeal to the Superior Court filed by the petitioner and Henrry was from the denial of the petition to the Probate Court seeking emergency relief before Henrry reached the age of majority and ceased to be a juvenile. On May 19, 2016, the Superior Court for Juvenile Matters dismissed that appeal for lack of jurisdiction, and on June 2, 2016, the petitioner and Henrry filed the appeal in AC 39276 in this court. In their first appellate brief to this court, the petitioner and Henrry set forth the following additional facts and procedural history: "This appeal stems from the Juvenile Court's dismissal of the . appeal from Probate Court, in which the Probate Court denied . [Henrry] then a minor child, and his mother, [the petitioner], the opportunity to be heard before Henrry turned eighteen years old, and to obtain necessary [juvenile status] findings, based on a misinterpretation of Connecticut's 2014 [juvenile status] findings statute, § 45a-608n. "[The petitioner] and her two minor children, Henrry and [his sister], are from Honduras. After her husband and father-in-law were brutally murdered by the same group of individuals, [the petitioner] fled Honduras, seeking safety in the United States and leaving her two minor children behind with their paternal grandmother because they were too young to make the treacherous journey into the [United States]. As the children grew into adolescents, the threats against them began to escalate as well.... Eventually, fearing for their lives, the two minor siblings, unbeknownst to relatives, decided to embark on their own journey into the United States to find their mother and seek refuge.... "Upon entering the United States in 2015, Henrry and [his sister] were detained by Immigration Customs and Border Patrol and then ultimately released to [the petitioner] in Connecticut. They were seventeen and sixteen years old at that time. Since arriving in Connecticut, both minors have resided with [the petitioner] and the proposed coguardian in this case, [Santos O. R.], and have been enrolled in . high school, where Henrry recently completed tenth grade.... Both [the petitioner] and [Santos O. R.] work full-time to support the needs of Henrry and his siblings.... "On March 1, 2016, approximately five weeks prior to Henrry's eighteenth birthday, [the petitioner], through counsel, initiated the underlying Probate Court action. On that date, she filed a petition for removal of guardian, to remove her minor children's father as guardian and affirm herself as guardian, and additionally seeking the appointment of [Santos O. R.] as her coguardian.... On that date, she also filed a petition for special immigrant juvenile status [ (juvenile status) ] findings under 8 U.S.C. § 1101 [ (a) (27) (J) (2012) ], pursuant to § 45a-608n, to be used in connection with an application to the United States Citizenship and Immigration Services [ (Immigration Services) ].... Finally, on that date, [the petitioner] filed a motion for waiver of study by the Department of Children and Families [ (department) ] for Henrry, notifying the Probate Court that Henrry would be turning eighteen in approximately five weeks, and that time was of the essence.... "In her motion for waiver of the [department] study, [the petitioner] stated that Henrry was currently without legal status in the United States and [was] seeking findings from the court in connection with an application for [juvenile status] through [Immigration Services].... She explained that the child had fled his country of origin of Honduras due to threatened violence against his life and that of his sister; that the father and paternal grandfather of the minor child[ren] were both murdered by the same individuals who are now seeking to murder him and his sister as well; that it was not in the child's best interest to be returned to his country of origin where he will be placed at risk of imminent death.... She further claimed that no [department] study was needed here where the child was found to be in good health, was currently in the care of his biological mother and the proposed coguardian, [Santos O. R.], who have the emotional and physical ability to care for the minor, have the financial resources to care for the minor, and neither of which have a history of child abuse or neglect investigations or substantiations.... Finally, her motion stated that Henrry was over the age of twelve years old and consented to the petitions and relief sought, and was emotionally connected with [her], who would remain as guardian of the child.... Her motion concluded that it was in the best interest of the child to expedite the underlying petitions, indicating that the requirement to have the commissioner of [the department] complete a study would cause unreasonable delay that could prohibit this child from seeking relief from [Immigration Services] to obtain legal immigration status.... "On March 23, 2016, the Probate Court issued its first order of notice of hearing in this case indicating that the matter was being set down for a hearing with 'no appearance necessary' by the parties on April 22, 2016, a date after Henrry's eighteenth birthday.... The Probate Court also [sent notice to] a [department] social work supervisor, ordering [the department] to complete a study for both minors on the petition for removal, and impliedly denying [the petitioner's] motion for the waiver of study by [the department] for Henrry.... "On April 1, 2016, with Henrry's eighteenth birthday closely approaching, with no [department] study and no hearing date, [the petitioner] filed an emergency petition for findings under § 45a-608n, the [juvenile status] statute.... In her motion, [the petitioner] requested that the court make findings in connection with her petition for [juvenile status] findings, or, in the alternative, hold an emergency hearing before Henrry's eighteenth birthday, in order to do so.... The attorney for the child, appointed by the Probate Court, Attorney Frank Twohill, having received a copy of the Emergency Petition, visited with the child and wrote a letter to the court indicating both his support for the Petition, and his availability for an evidentiary hearing on the emergency petition, should the court choose to hold one.... "On April 1, 2016, the Probate Court [Chadwick, J. ,] denied the emergency petition in a brief written order, indicating that: 'The Emergency Petition for Findings under [§] 45a-608n, dated April 1, 2016, is hereby DENIED by the court. Pursuant to [§] 45a-608n (b), the granting of a petition to remove is a prerequisite to making the requested written findings.' . Henrry subsequently turned eighteen a few days later, before any hearing was ever held in the Probate Court. "On April 22, 2016, [the petitioner] and Henrry (now eighteen years old) jointly filed an appeal to Superior Court for Juvenile Matters pursuant to [General Statutes §] 45a-186 (a) and Practice Book § 10-76 (a), appealing both the March 23, 2016 order, setting a 'no appearance' hearing after Henrry's eighteenth birthday and impliedly denying [the petitioner's] motion for waiver of the study by [the department], and the April 1, 2016 order, denying the emergency petition for findings under [§] 45a-608n.... The [appeal] raised three claims: (1) that the Probate Court had misinterpreted § 45a-608n (b) by concluding that it could not make [juvenile status] findings without deciding the underlying petition on removal of a guardian and appointment of a coguardian; (2) that the Probate Court had violated due process by failing to set a hearing prior to Henrry's eighteenth birthday, thus denying the [petitioner and Henrry] an opportunity to be heard at a meaningful time and in a meaningful manner; and (3) that the Probate Court had abused its discretion.... [The petitioner and Henrry] requested that the Juvenile Court reverse the Probate Court and remand for a hearing on [juvenile status] findings.... The Juvenile Court set the matter down for a hearing on May 19, 2016, and another attorney was appointed for Henrry as attorney for the minor child.... "On May 19, 2016, the Juvenile Court [Dannehy, J. ,] dismissed the appeal from Probate Court on the record, without holding an evidentiary hearing, stating that the Juvenile Court lacked jurisdiction over the appeal, because Henrry was now eighteen years old.... [The petitioner] and Henrry filed [the appeal in docket number AC 39276] with this court on June 2, 2016.... "On May 31, 2016, subsequent to the taking of this appeal, and approximately eight weeks after Henrry's eighteenth birthday, [the department] completed its social study on both Henrry and his sister . and provided its report to the Probate Court. In its report, [the department] indicated its support for the pending petitions, asking that the court grant the petition to remove the father as guardian, to affirm [the petitioner] as guardian, and to appoint [Santos O. R.] as coguardian of Henrry and his [sister].... "On June 3, 2016, the Probate Court issued another order for notice of hearing, this time scheduling an actual hearing date for the underlying petitions for July 19, 2016, but the hearing was set down for [Henrry's sister] . and not for Henrry.... On June 22, 2016, [the petitioner] filed a motion to schedule hearing or for a dispositive order in Henrry's case.... The Probate Court responded to the motion by scheduling a hearing on the underlying petitions for Henrry on July 19, 2016, along with that of his younger sister . "On July 19, 2016, the Probate Court held a full hearing for both Henrry and his sister, first entertaining legal argument from counsel on the jurisdictional issue regarding Henrry's case, now that he is eighteen, and then taking testimony on the substantive issues from all the interested parties. The matter was then taken under advisement ." (Citations omitted; footnotes omitted.) On August 30, 2016, the Probate Court mailed its decision affirming the petitioner as sole guardian, but denying her petition for removal of the father as guardian and the appointment of Santos O. R. as coguardian of Henrry because Henrry was eighteen years old and no longer a minor child. It declined to make the requested juvenile status findings, also because Henrry was age eighteen and no longer a minor child. On September 26, 2016, the petitioner and Henrry filed a second appeal to the Superior Court for Juvenile Matters from the Probate Court's August 30, 2016 decision, and on November 1, 2016, that appeal was dismissed. On November 4, 2016, the petitioner and Henrry appealed to this court. The two appeals were consolidated and the petitioner and Henrry were allowed to file a supplemental brief. That brief contained a supplemental statement of facts and procedural history as follows: "This account supplements the statement of facts in the . opening brief in AC 39276. This consolidated appeal challenges first the interlocutory orders (appealed in AC 39276) and then the final orders (appealed in AC 39787) of the Probate Court. The appeal in AC 39276 challenges the denial of a hearing on [the petitioner's] petitions in Probate Court before Henrry turned eighteen, and the Juvenile Court's May 19, 2016 dismissal of the . appeal from [the Probate Court] . The appeal in AC 39787 challenges the Probate Court's final orders denying [the petitioner's] petitions because Henrry had turned eighteen, which were appealed to the Juvenile Court . and dismissed on November 1, 2016. "The underlying petitions filed by [the petitioner] on March 1, 2016, for removal of Henrry's deceased parent as guardian and appointment of [Santos O. R.] as coguardian were eventually heard over four and a half months later, because the Probate Court ordered [the department] to conduct a home study regarding the soon-to-be eighteen year old consenting minor, who was already residing with the petitioning parent and proposed coguardian. The [department's] study was returned to the Probate Court approximately two months after Henrry's eighteenth birthday. The Probate Court then held a hearing for Henrry on July 19, 2016, in the Hartford Regional Children's Probate Court.... "On August 30, 2016, the Probate Court mailed its final orders from the July 19, 2016 hearing in Henrry's case. In those orders, the Probate Court affirmed [the petitioner] as sole guardian but denied the underlying petition for removal of guardian and request for appointment of coguardian because Henrry had turned eighteen.... It declined to make the [juvenile status] findings, and closed Henrry's case.... "On September 26, 2016, [the petitioner and Henrry] filed a joint appeal from Probate Court in the Juvenile Court.... That appeal was dismissed on November 1, 2016, because Henrry was eighteen.... "On November 4, 2016, [the petitioner and Henrry] filed a joint appeal to the Appellate Court, which was docketed as AC 39787, [and] . moved to consolidate AC 39787 with their pending appeal AC 39276.... This court granted that motion and allowed for this supplemental brief." (Citations omitted; footnotes omitted.) We assume in deciding these consolidated appeals that the statements of facts and procedural history set forth previously are reasonably accurate. We also take note of the statements of counsel during oral argument before this court that Henrry and his sister had arrived in the United States from Honduras approximately eight months prior to the filing of the petitions in the Probate Court, and that the petitioner had contacted such counsel approximately one month prior to the eventual filing of the petitions. The claims raised in these appeals arise from and depend on several statutes set forth in chapter 802h of the General Statutes, which pertains to protected persons, including minors or minor children. Our review is therefore plenary. In re Jose B. , supra, 303 Conn. at 580, 34 A.3d 975. Part II of chapter 802h relates to guardianship of minors. Pursuant to General Statutes § 45a-604 (4), "minor" or "minor child" means a person under the age of eighteen. Pursuant to General Statutes § 45a-604 (5), "guardianship" means guardianship of the person of a minor. Pursuant to General Statutes § 45a-606, the biological father and mother are joint guardians of the person of the minor, and the powers, rights, and duties of the father and the mother in regard to the minor are equal. If either the father or the mother dies or is removed as guardian, the other parent becomes the sole guardian of the person of the minor child. General Statutes § 45a-606. In this case, therefore, on the date the petitioner filed the petitions she, pursuant to § 45a-606, was Henrry's sole guardian because his father was and had been deceased before he arrived in the United States. There is no mention in that statute, in § 45a-608n, or in any other of the statutes in part II of chapter 802h, of any statutory authority granted to Connecticut courts to take action with respect to a person who has reached the age of majority. Section 45a-608n by its terms applies solely during the minority of any child. General Statutes § 45a-609 (a) provides in relevant part: "Upon application for removal of a parent or parents as guardian, the court shall set a time and place for hearing to be held within thirty days of the application, unless the court requests an investigation in accordance with the provisions of section 45a-619. In that case, the court shall set a day for hearing not more than thirty days following receipt of the results of the investigation...." General Statutes § 45a-616 provides in relevant part: "(b) If any minor has a parent or guardian, who is the sole guardian of the person of the child, the court of probate for the district in which the minor resides may, on the application of the parent or guardian of such child or of the Commissioner of Children and Families with the consent of such parent or guardian and with regard to a child within the care of the commissioner, appoint one or more persons to serve as coguardians of the child. When appointing a guardian or guardians under this subsection, the court shall take into consideration the standards provided in section 45a-617.... "(c) Upon receipt by the court of an application pursuant to this section, the court shall set a time and place for a hearing to be held within thirty days of the application, unless the court requests an investigation in accordance with the provisions of section 45a-619, in which case the court shall set a day for hearing not more than thirty days following receipt of the results of the investigation. The court shall order notice of the hearing to be given to the minor, if over twelve years of age, by first class mail at least ten days prior to the date of the hearing. In addition, notice by first class mail shall be given to the petitioner and all other parties in interest known by the court." General Statutes § 45a-617 provides that "[w]hen appointing a guardian, coguardians or permanent guardian of the person of a minor, the court shall take into consideration the following factors: (1) The ability of the prospective guardian, coguardians or permanent guardian to meet, on a continuing day to day basis, the physical, emotional, moral and educational needs of the minor; (2) the minor's wishes, if he or she is over the age of twelve or is of sufficient maturity and capable of forming an intelligent preference; (3) the existence or nonexistence of an established relationship between the minor and the prospective guardian, coguardians or permanent guardian; and (4) the best interests of the child. There shall be a rebuttable presumption that appointment of a grandparent or other relative related by blood or marriage as a guardian, coguardian or permanent guardian is in the best interests of the minor child." The petitioner alleged in her petition for removal of Henrry's father as guardian classic neglect allegations: that Henrry had been abandoned; that he had been denied the care, guidance or control necessary for his physical, educational, moral, or emotional well-being as a result of acts of parental commission or omission as defined by law; and that Henrry was neglected or uncared for, as defined in § 46b-120. General Statutes § 45a-619 provides in relevant part: "In any proceeding under sections 45a-603 to 45a-624, inclusive, in which the applicant has alleged that the minor has been abused or neglected, as those terms are defined in section 46b-120, or in which the probate judge has reason to believe that the minor may have been abused or neglected, the Court of Probate shall request the Commissioner of Children and Families or any organization, agency or individual licensed or approved by the commissioner, to make an investigation and written report to it, within ninety days from the receipt of such request, unless the request concerns an application for immediate temporary custody or temporary custody, in which case the commissioner shall render the report by such date as is reasonably ordered by the court. The report shall indicate the physical, mental and emotional status of the minor and shall contain such facts as may be relevant to the court's determination of whether the proposed court action will be in the best interests of the minor, including the physical, social, mental, and financial condition of the parties, and such other factors which the commissioner or agency finds relevant to the court's determination of whether the proposed action will be in the best interests of the minor...." (Emphasis added.) Because of the petitioner's allegations in her petition for removal of guardian, § 45a-619 mandated the Probate Court to request an investigation and report. This mandate is made clear by additional language in § 45a-619 : "In any other proceeding under sections 45a-603 to 45a-624, inclusive, the court shall request an investigation and report unless this requirement is waived for cause shown. " (Emphasis added.) The authority of the Probate Court to waive the investigation and report thus is limited to cases not involving allegations of abuse or neglect. As previously set forth, the petitioner had petitioned for the removal of the father as guardian by alleging that Henrry had been abandoned by his father; had been denied the care, guidance or control necessary for his physical, educational, moral, or emotional well-being as a result of acts of parental commission or omission as defined by law; and that Henrry was neglected or uncared for, as defined in § 46b-120. She asked for the appointment of a nonrelative of Henrry as his guardian. In light of the language of and the considerations raised in the relevant statutes, and Henrry's relatively short time in Connecticut, the Probate Court's decision not to waive the statutory requirement for an investigation and report was within its discretion. As stated previously, the law that we apply in analyzing this appeal is set forth in two recent Supreme Court opinions, In re Jose B. , supra, 303 Conn. at 569, 34 A.3d 975, and In re Jessica M. , supra, 303 Conn. at 584, 35 A.3d 1072. See also In re Pedro J.C. , supra, 154 Conn.App. at 517, 105 A.3d 943. We, therefore, are constrained to conclude that after Henrry reached the age of majority, the Probate Court lacked statutory authority to appoint a coguardian for him and to make the juvenile status findings permitted by § 45a-608n. Our Supreme Court in In re Jose B . considered the application of General Statutes § 46b-129 (a) to the petitioner in that case, a minor child who had reached the age of majority shortly after the petition was filed: "Thus, the question in the present case is whether the trial court has statutory authority pursuant to § 46b-129 (a) to adjudicate a person who has reached the age of eighteen years as neglected or uncared-for, and to commit such a person to the care of the department pursuant to § 46b-129 (j). This is a question of statutory interpretation over which our review is plenary. See State ex rel. Greganv . Koczur, 287 Conn. 145, 152, 947 A.2d 282 (2008).... "We begin with a review of the relevant statutes. Section 46b-129 (a) provides in relevant part that certain enumerated parties having information that a child or youth is neglected, uncared-for or dependent, may file with the Superior Court . a verified petition plainly stating such facts as bring the child or youth within the jurisdiction of the court as neglected, uncared-for or dependent, within the meaning of section 46b-120.... General Statutes (Rev. to 2009) § 46b-120 (9), provides in relevant part that a child or youth may be found neglected . General Statutes (Rev. to 2009) § 46b-120 (10), provides in relevant part that a child or youth may be found uncared for . General Statutes (Rev. to 2009) § 46b-120 (1) provides in relevant part: Child means any person under sixteen years of age . General Statutes (Rev. to 2009) § 46b-120 (2) provides in relevant part: [Y]outh means any person sixteen or seventeen years of age . "Reading these statutory provisions together, it is clear that the legislature intended that the trial court would have statutory authority to adjudicate a person neglected or uncared-for only if the person is a child or youth, i.e., the person is under the age of eighteen years. There is no indication in the statutory scheme that the legislature contemplated that, as long as the petition was filed before the subject of the petition reached his eighteenth birthday, the trial court could render a retroactive adjudication after that date. As the current revision of § 46b-120 (1) indicates, when the legislature intends that a person will be considered a child for certain purposes after the person has reached the age of eighteen years, it knows how to make that intention clear. See General Statutes § 46b-120 (1) (defining [c]hild differently for different circumstances). Accordingly, we conclude that the trial court lacked statutory authority to adjudicate the petitioner neglected or uncared-for after his eighteenth birthday. It necessarily follows that the trial court lacked statutory authority to provide the petitioner with dispositional relief pursuant to § 46b-129 (j) ( [u]pon finding and adjudging that any child or youth is uncared-for, neglected or dependent, the court may commit such child or youth to the Commissioner of Children and Families .). "Finally, we conclude that, because the trial court lacked such statutory authority, that court properly concluded that the petitioner's petition was rendered moot when he reached his eighteenth birthday. See Connecticut Coalition Against Millstonev . Rocque , 267 Conn. 116, 126-27, 836 A.2d 414 (2003) (case is moot when [i]ntervening circumstances have changed the legal landscape . and the court cannot grant the [petitioner] any practical relief); see also Dept. of Public Safetyv . Freedom of Information Commission , 103 Conn.App. 571, 589, 930 A.2d 739 (because Freedom of Information Commission lacks statutory authority to issue final decision on matter that is not contested, question of whether certain documents were subject to Freedom of Information Act was rendered moot when party making request for disclosure notified commission that requested records had been disclosed and asked that no further action be taken on complaint), cert. denied, 284 Conn. 930, 934 A.2d 245 (2007) ; Ruggierov . Ruggiero , 76 Conn.App. 338, 347, 819 A.2d 864 (2003) (because trial court no longer had statutory authority to order plaintiff to submit to psychiatric evaluation after custody order was issued, claim that trial court improperly ordered psychiatric evaluation was moot). Accordingly, we conclude that the trial court properly granted the department's motion to dismiss and affirm the judgment of the Appellate Court on this alternative ground." (Emphasis altered; footnotes omitted; internal quotation marks omitted.) In re Jose B. , supra, 303 Conn. at 580-83, 34 A.3d 975. In In re Jessica M. , supra, 303 Conn. at 585, 35 A.3d 1072, the petitioner claimed that the trial court improperly dismissed as moot her petition to be adjudicated neglected and uncared-for because two and one-half months after she filed it, she reached her eighteenth birthday. Our Supreme Court, however, specifically rejected her claim that "because an adjudication of neglect pursuant to § 46b-129 (a) would enable her to seek special immigrant juvenile status from the federal government, her claim for an adjudication of neglect was not moot even if the trial court could not grant dispositional relief pursuant to § 46b-129 (j)." Id., at 588, 35 A.3d 1072. The court concluded that, "not only did the trial court lack statutory authority to provide dispositional relief to the petitioner after she reached her eighteenth birthday, it also lacked statutory authority to adjudicate the petitioner neglected or uncared-for. The collateral consequences doctrine cannot confer statutory authority on the trial court that is otherwise lacking." Id., at 588-89, 35 A.3d 1072. Accordingly, the court rejected the petitioner's claim. Id., at 589, 35 A.3d 1072. In re Jose B. and In re Jessica M . are controlling, and we are constrained to follow their holdings in analyzing and applying the relevant statutes in this case. The plain language of those statutes, particularly § 45a-608n, do not provide the Probate Court with authority either to appoint a guardian for an individual after his or her eighteenth birthday, or to make juvenile status findings after such eighteenth birthday. The Superior Court for Juvenile Matters thus properly concluded that the claims set forth in the appeals from the decisions of the Probate Court were rendered moot when Henrry reached his eighteenth birthday because the Probate Court no longer had the statutory authority to provide the requested relief. For the foregoing reasons, we affirm the judgments of the Superior Court for Juvenile Matters dismissing the appeals. The judgments are affirmed. In this opinion MULLINS, J., concurred. In the second brief to this court, filed after the Probate Court hearing on the petitions had occurred and the judgment of that court had been rendered, the petitioner and Henrry set forth the following supplemental statement of principal issues on appeal: "1. Do Connecticut courts possess authority to afford the [petitioner and Henrry] practical relief by making [juvenile status] findings in these proceedings? "2. Did the Probate Court err in denying [the petitioner's] Petition for Special Immigrant Juvenile Status Findings and in refusing to make the findings under . § 45a-608n ? "3. Did the Probate Court err in failing to appoint a coguardian for Henrry as requested by [the petitioner] and [the department] when it denied [her] Petition to Remove Guardian, but affirmed her as the sole guardian? "4. In light of these legal errors by the Probate Court, does the Juvenile Court possess jurisdiction to hear this matter de novo and make the [juvenile status] findings?" The statement of principal issues in the first brief to this court was as follows: "1. Did the Juvenile Court err in concluding that it lacked jurisdiction to hear an appeal from Probate Court because Henrry had turned eighteen, when the legal issues presented to the Juvenile Court involved the Probate Court's interpretation of the 2014 [juvenile status] findings statute . § 45a-608n (b), and the denial of a hearing prior to Henrry's eighteenth birthday; and "2. Did the Probate Court err in its interpretation of the 2014 [juvenile status] findings statute . § 45a-608n (b), when it denied the [petitioner's] Emergency Petition for [juvenile status] findings on the grounds that 'the granting of a petition to remove is a prerequisite to making the requested written findings'; and "3. Did the Probate Court violate due process under U.S. Const. Amend. XIV and Art. First § 8 and 10 of the Connecticut Constitution, when it denied the [petitioner] a hearing on the Petition for Removal of Guardianship/ Appointment of Coguardian for Henrry, and on the Petition for [juvenile status] findings, despite repeated requests by the [petitioner] for an opportunity to be heard prior to Henrry's eighteenth birthday; and "4. Did the Probate Court abuse its discretion when it denied the [petitioner's] Motion for Waiver of Study by the Department of Children and Families, without a hearing, when it was clear that the completion of such a study would only occur after Henrry's eighteenth birthday, and when the [petitioner] had requested a hearing on [juvenile status] findings prior to Henrry's eighteenth birthday; "5. In light of these legal errors by the Probate Court, did the Juvenile Court possess jurisdiction to hear the matter de novo, or remand the matter to the Probate Court for a hearing, and, if appropriate, to enter a nunc pro tunc order on the petition for [juvenile status] findings pursuant to its statutory, incidental, and equitable jurisdiction, notwithstanding that Henrry had turned eighteen; "6. Did this appeal [in AC 39276] become moot when on July 19, 2016, subsequent to the filing of this appeal, and after Henrry's eighteenth birthday, the Probate Court held a hearing on the legal and substantive issues?" General Statutes § 45a-608n, as amended by No. 15-14, § 11, of the 2015 Public Acts, provides: "(a) For the purposes of this section and section 45a-608o, a minor child shall be considered dependent upon the court if the court has (1) removed a parent or other person as guardian of the minor child, (2) appointed a guardian or coguardian for the minor child, (3) terminated the parental rights of a parent of the minor child, or (4) approved the adoption of the minor child. "(b) At any time during the pendency of a petition to remove a parent or other person as guardian under section 45a-609 or 45a-610, or to appoint a guardian or coguardian under section 45a-616, a party may file a petition requesting the Probate Court to make findings under this section to be used in connection with a petition to the United States Citizenship and Immigration Services for designation of the minor child as having special immigrant juvenile status under [8 U.S.C. § 1101 (a) (27) (J) (2012) ]. The Probate Court shall cause notice of the hearing on the petition to be given by first class mail to each person listed in subsection (b) of section 45a-609, and such hearing may be held at the same time as the hearing on the underlying petition for removal or appointment. If the court grants the petition to remove the parent or other person as guardian or appoint a guardian or coguardian, the court shall make written findings on the following: (1) The age of the minor child; (2) the marital status of the minor child; (3) whether the minor child is dependent upon the court; (4) whether reunification of the minor child with one or both of the minor child's parents is not viable due to any of the grounds set forth in subdivisions (2) to (5), inclusive, of section 45a-610; and (5) whether it is not in the best interests of the minor child to be returned to the minor child's or parent's country of nationality or last habitual residence. "(c) If the court has previously granted a petition to remove a parent or other person as guardian under section 45a-609 or 45a-610 or to appoint a guardian or coguardian under section 45a-616, a parent, guardian or attorney for the minor child may file a petition requesting that the court make findings under this section to be used in connection with a petition to the United States Citizenship and Immigration Services for designation of the minor child as having special immigrant juvenile status under [8 U.S.C. § 1101 (a) (27) (J) (2012) ]. The court shall cause notice of the hearing on the petition to be given by first class mail to each parent, guardian and attorney for the minor child, to the minor child if the minor child is twelve years of age or older and to other persons as the court determines. The court shall make written findings on the petition in accordance with subsection (b) of this section." General Statutes § 45a-610 provides in relevant part: "If the Court of Probate finds that notice has been given or a waiver has been filed, as provided in section 45a-609, it may remove a parent as guardian, if the court finds by clear and convincing evidence one of the following: (1) The parent consents to his or her removal as guardian; or (2) the minor child has been abandoned by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility for the minor child's welfare; or (3) the minor child has been denied the care, guidance or control necessary for his or her physical, educational, moral or emotional well-being, as a result of acts of parental commission or omission, whether the acts are the result of the physical or mental incapability of the parent or conditions attributable to parental habits, misconduct or neglect, and the parental acts or deficiencies support the conclusion that the parent cannot exercise, or should not in the best interests of the minor child be permitted to exercise, parental rights and duties at the time; or (4) the minor child has had physical injury or injuries inflicted upon the minor child by a person responsible for such child's health, welfare or care, or by a person given access to such child by such responsible person, other than by accidental means, or has injuries which are at variance with the history given of them or is in a condition which is the result of maltreatment such as, but not limited to, malnutrition, sexual molestation, deprivation of necessities, emotional maltreatment or cruel punishment; or (5) the minor child has been found to be neglected or uncared for, as defined in section 46b-120...." For example, the factors set forth in § 45a-610 and 45a-617 illustrate the necessity for the mandated inspection and report in this case. Section 45a-610 provides in relevant part: "If the Court of Probate finds that notice has been given or a waiver has been filed, as provided in section 45a-609, it may remove a parent as guardian, if the court finds by clear and convincing evidence one of the following: (1) The parent consents to his or her removal as guardian; or (2) the minor child has been abandoned by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility for the minor child's welfare; or (3) the minor child has been denied the care, guidance or control necessary for his or her physical, educational, moral or emotional well-being, as a result of acts of parental commission or omission, whether the acts are the result of the physical or mental incapability of the parent or conditions attributable to parental habits, misconduct or neglect, and the parental acts or deficiencies support the conclusion that the parent cannot exercise, or should not in the best interests of the minor child be permitted to exercise, parental rights and duties at the time; or (4) the minor child has had physical injury or injuries inflicted upon the minor child by a person responsible for such child's health, welfare or care, or by a person given access to such child by such responsible person, other than by accidental means, or has injuries which are at variance with the history given of them or is in a condition which is the result of maltreatment such as, but not limited to, malnutrition, sexual molestation, deprivation of necessities, emotional maltreatment or cruel punishment; or (5) the minor child has been found to be neglected or uncared for, as defined in section 46b-120...." Section 45a-617 provides that "[w]hen appointing a guardian, coguardians or permanent guardian of the person of a minor, the court shall take into consideration the following factors: (1) The ability of the prospective guardian, coguardians or permanent guardian to meet, on a continuing day to day basis, the physical, emotional, moral and educational needs of the minor; (2) the minor's wishes, if he or she is over the age of twelve or is of sufficient maturity and capable of forming an intelligent preference; (3) the existence or nonexistence of an established relationship between the minor and the prospective guardian, coguardians or permanent guardian; and (4) the best interests of the child." Additionally, the petitioner represented in her petition for removal of Henrry's father as guardian that Henrry had been abandoned by his father in the sense that he had failed to maintain a reasonable degree of interest, concern or responsibility for Henrry's welfare; that Henrry had been denied the care, guidance or control necessary for his physical, educational, moral, or emotional well-being as a result of acts of parental commission or omission as defined by law; and that Henrry was neglected or uncared for, as defined in § 46b-120. Assuming, however, that the Probate Court should have waived the report and that it acted improperly in not doing so, e.g., it should have proceeded to determine if it could make the requisite guardianship and juvenile status findings prior to Henrry's eighteenth birthday, Henrry's eighteenth birthday now having occurred, there is no current judicial or statutory authority of which this court is aware upon which it, the Juvenile Court, or the Probate Court could stop Henrry's age of majority clock from running so that he remained a juvenile, or turn back that clock after it had run on Henrry's juvenile status. In other words, there currently is no authority for this court to order either the Probate Court or the Juvenile Court to consider and rule upon the petitions for guardianship and juvenile status findings nunc pro tunc. Even if either court did so rule at this point, the validity of any such orders, in the absence of proper statutory authority, would be subject to question. General Statutes § 46b-129 (a) provides in relevant part: "Any selectman, town manager, or town, city or borough welfare department, any probation officer, or the Commissioner of Social Services, the Commissioner of Children and Families or any child-caring institution or agency approved by the Commissioner of Children and Families, a child or such child's representative or attorney or a foster parent of a child, having information that a child or youth is neglected, uncared for or abused may file with the Superior Court that has venue over such matter a verified petition plainly stating such facts as bring the child or youth within the jurisdiction of the court as neglected, uncared for or abused within the meaning of section 46b-120, the name, date of birth, sex and residence of the child or youth, the name and residence of such child's parents or guardian, and praying for appropriate action by the court in conformity with the provisions of this chapter...." Moreover, this court recognized these jurisdictional limits for making a juvenile status finding when it directed the Juvenile Court to act in an expeditious manner on remand in In re Pedro J.C., supra, 154 Conn.App. at 543, 105 A.3d 943 ("If the court does not issue the requisite findings before the date that the petitioner attains the age of eighteen, the court will lack statutory authority to provide him his requested relief. See In re Jessica M., [supra, 303 Conn. at 587-88, 35 A.3d 1072].") The legislature may provide statutory authority for the Probate Court or the Superior Court to make the juvenile status findings after a minor child reaches the age of majority. See In re Jose B., supra, 303 Conn. at 581, 34 A.3d 975 ("Reading these statutory provisions together, it is clear that the legislature intended that the trial court would have statutory authority to adjudicate a person neglected or uncared-for only if the person is a child or youth, i.e., the person is under the age of eighteen years. There is no indication in the statutory scheme that the legislature contemplated that, as long as the petition was filed before the subject of the petition reached his eighteenth birthday, the trial court could render a 'retroactive' adjudication after that date. As the current revision of § 46b-120 (1) indicates, when the legislature intends that a person will be considered a child for certain purposes after the person has reached the age of eighteen years, it knows how to make that intention clear.").

12489373

The CONNECTICUT BANK AND TRUST COMPANY v. MUNSILL-BORDEN MANSION, LLC, et al.

Conn. Bank & Trust Co. v. Munsill-Borden Mansion, LLC

2017-04-11

No. 36144

1223

1223

157 A.3d 1223

157

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-09-08T21:16:17.237805+00:00

Fastcase

The CONNECTICUT BANK AND TRUST COMPANY v. MUNSILL-BORDEN MANSION, LLC, et al.

The CONNECTICUT BANK AND TRUST COMPANY v. MUNSILL-BORDEN MANSION, LLC, et al. No. 36144 Appellate Court of Connecticut. Argued March 20, 2017 Officially released April 11, 2017

33

215

Per Curiam. The judgment is affirmed.

12489533

JUST RESTAURANTS v. THAMES RESTAURANT GROUP, LLC

Just Rests. v. Thames Rest. Grp., LLC

2017-01-06

AC 38493

845

848

158 A.3d 845

158

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-09-08T21:16:17.237805+00:00

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

JUST RESTAURANTS v. THAMES RESTAURANT GROUP, LLC

JUST RESTAURANTS v. THAMES RESTAURANT GROUP, LLC AC 38493 Appellate Court of Connecticut. Submitted on briefs January 6, 2017 Officially released April 4, 2017 Scott M. Schwartz filed a brief for the appellant (defendant). Renee Marie Houle filed a brief for the appellee (substitute plaintiff). DiPentima, C.J., and Mullins and Bear, Js.

1458

8941

PER CURIAM. The defendant, Thames Restaurant Group, LLC, appeals from the judgment of the trial court rendered in favor of the substitute plaintiff, John Russo, doing business as Just Restaurants Business Brokers. The dispositive issue is whether the trial court lacked subject matter jurisdiction over this action. We agree with the parties that the action was commenced by the named plaintiff, Just Restaurants, using a fictitious or assumed business name, or a trade name. Under our law, that name did not create or encompass a person or entity with a legal existence, and, therefore, the named plaintiff had had no capacity to bring an action. The court thus lacked subject matter jurisdiction over its complaint and the action. Accordingly, we reverse the judgment of the trial court and remand the case with direction to dismiss the action. The following facts and procedural history are relevant to our analysis. The named plaintiff commenced this action with a three count complaint setting forth claims of breach of a promissory note, unjust enrichment, and a violation of the Connecticut Unfair Trade Practice Act (CUTPA), General Statutes § 42-110a et seq. The named plaintiff alleged in its complaint that the defendant had purchased a business and real estate in New London from a third party and had agreed to pay $40,000 of the named plaintiff's commission from this transaction over a five year period at 5 percent interest. The defendant filed an answer and special defenses, including a claim that the named plaintiff was not a legal entity and, therefore, had no capacity or standing to bring the action. The named plaintiff denied that special defense. The named plaintiff filed two motions to have "John Russo, doing business as Just Restaurants Business Brokers" named as the proper plaintiff. First, it filed a motion to amend the complaint. Second, it filed a motion to substitute the party plaintiff. The court granted both motions over the objections of the defendant. A one day court trial occurred on September 29, 2015, the same day that the motion to amend the complaint and motion to substitute were granted. After hearing testimony from Russo and Albert Farrah, a member of the defendant, the court issued an oral decision. It rendered judgment in favor of the substitute plaintiff on the breach of a promissory note count, and in favor of the defendant on the unjust enrichment and CUTPA counts. The court awarded the substitute plaintiff $32,328. This appeal followed. On November 25, 2016, the substitute plaintiff filed in this court a motion to dismiss the defendant's appeal pursuant to Practice Book § 66-8. Specifically, it argued that both the trial court and this court lacked jurisdiction and requested the following relief: "Therefore, the appeal must be dismissed and the matter remanded to the trial court so that the underlying judgment may be opened, vacated and the action dismissed without prejudice for lack of subject matter jurisdiction." As an initial matter, we address the substitute plaintiff's motion to dismiss the appeal, and his claim that this court lacks jurisdiction over the appeal. The substitute plaintiff appears to argue that because the trial court lacked jurisdiction, this court also is without jurisdiction. Established law does not support this proposition. This court has jurisdiction to determine whether the trial court lacked jurisdiction. State v. Johnson , 301 Conn. 630, 641-42, 26 A.3d 59 (2011) ; State v. Martin M. , 143 Conn.App. 140, 143-44 n.1, 70 A.3d 135, cert. denied, 309 Conn. 919, 70 A.3d 41 (2013) ; Gemmell v. Lee , 42 Conn.App. 682, 684 n.3, 680 A.2d 346 (1996) ; see also Belden, Trustee v. Sedgwick , 68 Conn. 560, 567, 37 A. 417 (1897) ("[t]his court has jurisdiction to review any judgment of the Superior Court from which an appeal is taken on the ground that it was void for want of jurisdiction"). Accordingly, the substitute plaintiff's motion to dismiss the appeal is denied. Next, we set forth the applicable standard of review and the relevant legal principles. "If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause.... A determination regarding a trial court's subject matter jurisdiction is a question of law. When . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.... Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it.... [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction.... The objection of want of jurisdiction may be made at any time . [a]nd the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention.... The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings." (Internal quotation marks omitted.) Coldwell Banker Manning Realty, Inc. v. Cushman & Wakefield of Connecticut, Inc. , 136 Conn.App. 683, 685-86, 47 A.3d 394 (2012). On appeal, the defendant argues that the court erred by granting the motions to amend and substitute, and by failing to dismiss the action for lack of subject matter jurisdiction. Specifically, it contends that the named plaintiff was a trade name and without a separate legal existence from the substitute plaintiff. As a result, the named plaintiff did not have the legal capacity to bring the action solely in its name, and, therefore, the court lacked subject matter jurisdiction. Although the substitute plaintiff filed a brief opposing the defendant's appellate arguments, it subsequently agreed that the trial court lacked subject matter jurisdiction. We agree with the parties that the trial court was without jurisdiction over this case. "It is elemental that in order to confer jurisdiction on the court the plaintiff must have an actual legal existence, that is he or it must be a person in law or a legal entity with legal capacity to sue.... Although a corporation is a legal entity with legal capacity to sue, a fictitious or assumed business name, [or] a trade name, is not a legal entity; rather, it is merely a description of the person or corporation doing business under that name.... Because the trade name of a legal entity does not have a separate legal existence, a plaintiff bringing an action solely in a trade name cannot confer jurisdiction on the court ." (Citations omitted; emphasis added; internal quotation marks omitted.) America's Wholesale Lender v. Pagano , 87 Conn.App. 474, 477, 866 A.2d 698 (2005) ; see also Greco Construction v. Edelman , 137 Conn.App. 514, 518-20, 49 A.3d 256 (2012) ; Coldwell Banker Manning Realty, Inc. v. Cushman & Wakefield of Connecticut, Inc., supra, 136 Conn.App. at 687-91, 47 A.3d 394 ; America's Wholesale Lender v. Silberstein , 87 Conn.App. 485, 486, 866 A.2d 695 (2005). In the present case, it is undisputed that the named plaintiff was a trade name or assumed business name of John Russo, doing business as Just Restaurants Business Brokers. Pursuant to our law, the initiation of the action solely by the named plaintiff, which is not a legal entity and does not have a separate legal existence, cannot confer jurisdiction on the court; a dismissal, therefore, is required. See Greco Construction v. Edelman , supra, 137 Conn.App. at 518-19, 49 A.3d 256. The judgment of the trial court is reversed and the case is remanded with direction to render judgment dismissing the action. The named plaintiff neither admitted nor denied the other three special defenses raised by the defendant. We note that, in some circumstances, the court may allow for the substitution or addition of a plaintiff when an action has been commenced in the name of the wrong person as the plaintiff. General Statutes § 52-109 provides: "When any action has been commenced in the name of the wrong person as plaintiff, the court may, if satisfied that it was so commenced through mistake, and that it is necessary for the determination of the real matter in dispute so to do, allow any other person to be substituted or added as plaintiff." Given the facts of this case, this statute is inapplicable. See America's Wholesale Lender v. Silberstein, supra, 87 Conn.App. at 489, 866 A.2d 695 (case commenced by trade name was improper and substitution of proper plaintiff pursuant to § 52-109 could not cure jurisdictional defect).

12489615

Aimee L. JEANETTE-BLETHEN v. Jeffrey M. JEANETTE-BLETHEN

Jeanette-Blethen v. Jeanette-Blethen

2017-04-04

AC 38275

236

239

159 A.3d 236

159

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-09-08T21:16:17.237805+00:00

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Aimee L. JEANETTE-BLETHEN v. Jeffrey M. JEANETTE-BLETHEN

Aimee L. JEANETTE-BLETHEN v. Jeffrey M. JEANETTE-BLETHEN AC 38275 Appellate Court of Connecticut. Argued January 18, 2017 Officially released April 4, 2017 Aimee Jeanette-Bimonte, self-represented, the appellant (plaintiff). Susan B. Carr, Waterford, for the appellee (defendant). Thomas A. Esposito, with whom was Clifford Garnett, for the appellee (intervenor). Karen Oliver Damboise, for the guardian ad litem. Lavine, Alvord and Beach, Js.

1347

8716

PER CURIAM. The plaintiff, Aimee L. Jeanette-Blethen, appeals from the postjudgment orders of the trial court, Carbonneau, J. , granting the motion of the defendant, Jeffrey M. Jeanette-Blethen, to modify custody with respect to the primary residence of the parties' minor children, and granting the motion of Eileen Martin, the maternal grandmother, to intervene pursuant to General Statutes § 46b-59 upon finding that a parent-like relationship existed between her and the minor children. On appeal, the plaintiff claims that the court's factual findings are clearly erroneous and that the court abused its discretion in modifying the custody order that was entered at the time of the dissolution judgment. We affirm the judgment of the trial court. The record reveals the following facts and procedural history. The court, Dolan, J. , dissolved the parties' six year marriage on November 18, 2010. At the time of the dissolution, the parties had two minor children, ages five and three. The judgment of dissolution incorporated by reference the parties' separation agreement. With respect to custody, the parties agreed that they would share joint legal custody, with the plaintiff having "primary physical custody of the minor children for school purposes ." The defendant, in addition to other specified access to the children, had weekend access for three out of the four weekends each month. For six years during and following the dissolution proceeding, the plaintiff and the children resided with their maternal grandmother and step-grandfather. During those years, the grandparents provided care for the children, including, inter alia, preparing their meals, bathing them, getting them ready for school, caring for them when they were sick, and transporting them to health care appointments. The grandparents also provided for the children financially. On September 19, 2014, the defendant filed a motion to modify the custody order, requesting that the court award him primary physical custody of the children. He alleged that there had been a substantial change in circumstances due to the plaintiff's mental health issues, family discord, and change of residency from the grandparents' home to "substandard housing." The maternal grandmother filed a motion to intervene in the parties' family matters on October 17, 2014, which was amended on October 23, 2014. Following a lengthy hearing over several days, Judge Carbonneau granted the maternal grandmother's motion to intervene on June 8, 2015. In its oral ruling, the court found that the grandparents "provided a level of care for the children tantamount to that of a parent." In addition to providing for the children physically and financially, the court found that the grandparents "provided a constant example of strength, discipline, sacrifice, stability, and unconditional love on which [the children] . could rely." The court determined that the maternal grandmother had established and maintained a parent-like relationship with the children. Further, in accordance with the requirements of § 46b-59 (b), the court found that the children would suffer real and significant harm if it denied the motion to intervene. The hearing then continued for several more days on the defendant's motion to modify the 2010 custody order. The parties and several witnesses testified, and multiple exhibits were admitted into evidence. The court granted the defendant's motion in a written decision issued August 6, 2015. In that decision, the court noted that it "carefully assessed the credibility, attitude and demeanor of the various witnesses and considered the admitted exhibits, assigning all due weight." The court further noted that it found the "[defendant's] and intervening grandmother's testimony credible. The court particularly credits the calm but forceful testimony and opinions of the [guardian ad litem] and the informed, thoughtful and entirely persuasive testimony of Christine Willett, [a teacher of one of the minor children]." Additionally, the court made the following statement: "The court considered all applicable law, particularly [General Statutes] § 46b-56 about child custody, 46b-62 about the award of attorney's fees, 46b-84 and Connecticut's Child Support Guidelines about child support, and 46b-86 about modification. The court took judicial notice of the entire court file." The court then issued its ruling, ordering, inter alia, that the parties would continue to share joint legal custody of the minor children, but that the defendant would have primary physical custody of the minor children. The plaintiff, in addition to other specified access to the children, had weekend access for three out of the four weekends each month. This appeal followed. The plaintiff challenges the factual findings of the court and argues that the court abused its discretion in granting the defendant's motion for modification of the custody order. "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 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. . Therefore, to conclude that the trial court abused its discretion, we must find that the court either incorrectly applied the law or could not reasonably conclude as it did." (Footnote added; internal quotation marks omitted.) Emerick v. Emerick , 170 Conn.App. 368, 378, 154 A.3d 1069 (2017). After a careful review of the record, transcripts, briefs and oral argument, and having afforded the plaintiff's additional claims of error the appropriate scope of review, we conclude that the court's factual findings were not clearly erroneous with respect to the maternal grandmother's motion to intervene and that it did not abuse its discretion in granting the defendant's motion to modify custody. The court's exercise of its discretion is supported by the evidence. The judgment is affirmed. The plaintiff remarried after the parties divorced and is now known as Aimee Jeanette-Bimonte. The defendant is now known as Jeffrey Blethen. General Statutes § 46b-59 (b) provides in relevant part: "Any person may submit a verified petition to the Superior Court for the right of visitation with any minor child. Such petition shall include specific and good-faith allegations that (1) a parent-like relationship exists between the person and the minor child, and (2) denial of visitation would cause real and significant harm. . [T]he court shall grant the right of visitation with any minor child to any person if the court finds after hearing and by clear and convincing evidence that a parent-like relationship exists between the person and the minor child and denial of visitation would cause real and significant harm." We note that the guardian ad litem for the minor children filed a statement pursuant to Practice Book § 67-13 indicating that she adopts the briefs submitted by the defendant and the intervening maternal grandmother. "Our standard of review of a trial court's decision regarding custody, visitation and relocation orders is one of abuse of discretion. . The controlling principle in a determination respecting custody is that the court shall be guided by the best interests of the child. . In determining what is in the best interests of the child, the court is vested with a broad discretion." (Internal quotation marks omitted.) Baker-Grenier v. Grenier, 147 Conn.App. 516, 519, 83 A.3d 698 (2014).

12489666

FAIRFIELD MERRITTVIEW LIMITED PARTNERSHIP v. CITY OF NORWALK, et al

Fairfield Merrittview Ltd. P'ship v. City of Norwalk

2017-04-11

AC 34950

684

697

159 A.3d 684

159

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-09-08T21:16:17.237805+00:00

Fastcase

FAIRFIELD MERRITTVIEW LIMITED PARTNERSHIP v. CITY OF NORWALK, et al

FAIRFIELD MERRITTVIEW LIMITED PARTNERSHIP v. CITY OF NORWALK, et al AC 34950 Appellate Court of Connecticut. Argued October 27, 2016 Officially released April 11, 2017 James R. Fogarty, with whom, on the brief, were Frank W. Murphy and Kara A. Murphy, for the appellants (plaintiff et al.). Carolyn M. Colangelo, assistant corporation counsel, with whom were Mario F. Coppola, corporation counsel, and, on the brief, Robert F. Maslan, Jr., former corporation counsel, for the appellees (defendants). Alvord, Sheldon and Harper, Js.

6763

42500

SHELDON, J. In this real estate tax appeal, the defendant city of Norwalk appeals from the judgment of the trial court sustaining the appeal of the plaintiff, Fairfield Merrittview SPE, LLC, pursuant to General Statutes § 12-117a, and ordering the reduction of the defendant's tax assessment levied against the plaintiff's real property. The defendant raises two arguments in support of its claim that the court erred when it reduced the subject property's assessed fair market value, as of October 1, 2008, from $49,036,800 to $34,059,753. First, the defendant claims that the court improperly relied upon a 2006 "annual income and expense report" to calculate the property's net rentable area, when instead it should have used the plaintiff's December 2008 rent roll for that purpose, because the 2008 rent roll assertedly reflected the subject property's net rentable area as of October 1, 2008, more accurately than the 2006 report. Second, the defendant argues that the court improperly excluded $190,000 of "other income" attributable to the subject property from its calculations and, therefore, the court's calculation regarding the property's potential gross income was clearly erroneous. We affirm the judgment of the trial court. The record reveals the following facts. The subject property, an eight story, class A multitenant office building that was constructed in 1985, sits on a 4.3 acre parcel located at 383 Main Avenue in Norwalk. The ground floor of the property consists of a lobby, a cafeteria, a fitness center and a conference room, which are all maintained for the benefit of the building's tenants. These amenities account for approximately 6400 square feet of space. Additionally, there is a three level parking garage underneath the building which provides 743 parking spaces on a total surface area of 150,227 square feet. The area surrounding 383 Main Street consists of high density commercial developments, as well as retail and corporate offices. The subject property's location provides quick access to: the Merritt Parkway; the Route 7 connector highway, which provides access to Interstate 95; and the Metro-North passenger train station, which operates between New Haven and New York City. On October 1, 2008, as part of a citywide revaluation, the defendant's assessor determined that the subject property had a fair market value of $49,036,800. Thereafter, the plaintiff appealed to the Board of Assessment Appeals of the City of Norwalk (board), pursuant to General Statutes § 12-111, claiming that the property's assessed value grossly exceeded its actual value. The board dismissed the appeal and upheld the property's assessed value and corresponding tax assessment. On July 21, 2009, the plaintiff appealed, pursuant to § 12-117a, to the Superior Court for the judicial district of Stamford-Norwalk. There, the plaintiff renewed its claim that the defendant's assessment of the subject property was grossly excessive, and therefore warranted reduction. A two day trial was then held on December 14 and 15, 2011. During the trial, each party called an appraiser to testify as to the subject property's October 2008 fair market value. Eric Michel testified on behalf of the plaintiff; Michael Fazio testified on behalf of the defendant. Both witnesses stated that they employed the sales approach and the income capitalization approach to determine the property's fair market value. Ultimately, each appraiser testified that the income capitalization approach was the most appropriate method for determining the property's fair market value as of October 1, 2008 because a prospective purchaser would most likely use that method when attempting to purchase the property. Using the income capitalization approach, Michel concluded that the property had a fair market value of $30,500,000 as of October 1, 2008, whereas Fazio concluded that the property then had a fair market value of $49,400,000. Despite their different conclusions, both appraisers agreed on several factors relevant to the trial court's decision. Both appraisers agreed: that the property's highest and best use, as improved, was its continued use as a multitenant office building; that, in applying the income capitalization approach, the direct capitalization method was the preferred method for determining the property's fair market value; that, pursuant to the direct capitalization method, the applicable vacancy and collection rate was 10 percent; and that the property's market rental value, pursuant to General Statutes § 12-63b, should be valued at $25 per square foot. They disagreed, however, on several figures included in the direct capitalization formula. Specifically, they disagreed as to: (1) the property's net rentable area; (2) the property's potential gross income; and (3) the overall capitalization rate that should be applied under the direct capitalization formula. Their differences, more particularly, were as follows. Regarding the property's net rentable area, Michel testified that his calculation was based upon the tax assessor's field assessment card, which reported that the property had a net rentable area of 238,879 square feet. Fazio's calculation, on the other hand, was based on an oral representation by Tara Deluca, an agent of the plaintiff, that the property had a net rentable area of 256,974 square feet. As for the property's potential gross income (PGI), Michel testified that he multiplied the market rental value of $25 per square foot, on a "gross electric basis," by 238,879 square feet of net rentable area to arrive at a PGI of $5,971,975. Fazio's calculation, by contrast, resulted in a PGI of $7,847,825. Although Fazio agreed that the market rental value was $25 per square foot, he included two additional reimbursements which he found to increase the property's value by $4.80 per square foot. Additionally, Fazio's formula included $190,000 in "other income" that he believed to be attributable to the property, which included "conference room income, tenant other income, and . interest income." Concerning the overall capitalization rate, both appraisers agreed that as of October 1, 2008, the capitalization rate was 7.5 percent. They disagreed, however, as to what effective tax rate should be added to that figure to arrive at the overall capitalization rate; Michel testified that 1.35 percent should be added, resulting in an overall capitalization rate of 8.85 percent, while Fazio testified that 1.39 percent should be added, resulting in an overall capitalization rate of 8.89 percent. On August 6, 2012, the trial court, Hon. Arnold W. Aronson , judge trial referee, issued its memorandum of decision. With regard to the property's net rentable area, the court noted that several documents admitted into evidence reflected dramatically different figures and that, depending on which exhibit it relied upon, the property's net rentable area varied by approximately 15,000 square feet. After reviewing the evidence presented, the court concluded that it was " more credible to turn to the 2006 annual income and expense report filed by [the plaintiff] with the city's assessor, as required by General Statutes § 12-63c, showing the subject's gross square footage at 249,986 [square feet] and [net rentable area] at 243,586 [square feet]." With regard to the property's PGI, the court rejected Michel's proposal of $25 per square foot on a gross electric basis as well as Fazio's inclusion of reimbursements and "other income." Instead, the court compared the subject property's market rent to its contract rent and concluded that a value of $26 per square foot was "a fair resolution of the subject's potential gross income, as of October 1, 2008." Accordingly, the court multiplied the market value of $26 per square foot by the net rentable area of 243,586 square feet, resulting in a PGI of $6,333,236, as of October 1, 2008. Finally, with regard to the overall capitalization rate, the court adopted Fazio's proposed overall capitalization rate of 8.89 percent. Applying these figures to the direct capitalization formula, the court concluded that the subject property's fair market value, as of October 1, 2008, was $34,059,753. Because this figure was less than the defendant's assessment of $49,036,800, the court ordered a reduction in the assessment to reflect the difference in the property's fair market value. Thereafter, the defendant filed its appeal. Additional facts will be set forth as necessary. I The defendant first claims that the court's factual finding regarding the property's net rentable area was clearly erroneous. Specifically, the defendant argues that, in determining the net rentable area of the property, the trial court improperly relied on a 2006 annual income and expense report to determine the building's gross square footage. See footnote 17 of this opinion. The defendant argues that the information in that report as to the property's net rentable area was outdated, and thus that the court should have used the plaintiff's 2008 rent roll to determine that area instead. The defendant contends that, by relying on such outdated information, the court failed to account for 14,687 square feet of net rentable area, thereby erroneously reducing the property's fair market value by $3,865,870. We find no error. "Our review of the court's determination in a tax appeal is limited. [W]e do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. Rather, we focus on the conclusion of the trial court, as well as the method by which it arrived at that conclusion, to determine [if] it is legally correct and factually supported.... We will reverse the decision only if it is clearly erroneous." (Citation omitted; internal quotation marks omitted.) Pilot's Point Marina, Inc. v. Westbrook , 119 Conn.App. 600, 602, 988 A.2d 897 (2010). "A finding of fact is clearly erroneous when there is no evidence in the record to support it . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.... In making this determination, every reasonable presumption must be given in favor of the trial court's ruling." (Internal quotation marks omitted.) Albemarle Weston Street, LLC v. Hartford , 104 Conn.App. 701, 706, 936 A.2d 656 (2007). "[I]n an appeal pursuant to § 12-117a, the trial court tries the matter de novo and the ultimate question is the ascertainment of the true and actual value of the [taxpayer's] property." (Footnote omitted; internal quotation marks omitted.) Xerox Corp. v. Board of Tax Review , 240 Conn. 192, 204, 690 A.2d 389 (1997). "Whether a property has been overvalued for tax assessment purposes is a question of fact for the trier." (Internal quotation marks omitted.) Konover v. West Hartford , 242 Conn. 727, 735, 699 A.2d 158 (1997) ; Newbury Commons Ltd. Partnership v. Stamford , 226 Conn. 92, 103, 626 A.2d 1292 (1993). "The trier arrives at his own conclusions as to the value of land by weighing the opinion of the appraisers, the claims of the parties in light of all the circumstances in evidence bearing on value, and his own general knowledge of the elements going to establish value including his own view of the property." O'Brien v. Board of Tax Review , 169 Conn. 129, 136, 362 A.2d 914 (1975). "Because a tax appeal is heard de novo, a trial court judge is privileged to adopt whatever testimony [it] reasonably believes to be credible." (Emphasis omitted; internal quotation marks omitted.) Aetna Life Ins. Co. v. Middletown , 77 Conn.App. 21, 28, 822 A.2d 330, cert. denied, 265 Conn. 901, 829 A.2d 419 (2003). "The court has wide discretion in the admission of evidence and in determining what weight to give any such evidence." Nolan v. Milford , 92 Conn.App. 607, 609, 886 A.2d 493 (2005). The defendant claims that the court erroneously relied upon the plaintiff's 2006 annual income and expense report. We disagree. The evidence regarding the property's net rentable area consisted of exhibits and trial testimony; we address each in turn. Throughout the course of the two day trial, the court received several pieces of documentary evidence regarding the property's net rentable area, including: the plaintiff's 2006, 2007, and 2008 rent rolls; the city assessor's field card; and the plaintiff's 2006 annual income and expense report. A review of these documents reveals that the plaintiff's December 2006 rent roll, January 2007 rent roll, and 2006 annual income and expense report consistently stated that the subject property had a gross building area of 249,986 square feet. The plaintiff's December 2007 rent roll, however, reported a gross building area of 260,147 square feet, reflecting an increase of approximately 10,200 square feet. Similarly, the plaintiff's December 2008 rent roll reflected an additional increase of approximately 4500 square feet, resulting in a gross building area of 264,673 square feet. In addition to these documents, the court heard testimony from both appraisers regarding the property's net rentable area. On direct examination, Michel testified that when he calculated the property's fair market value, he relied on the 2008 tax assessor's information, which reported that the property had 238,879 square feet in rentable area. Michel explained that, by using this figure, he was able to compare his appraisal to the tax assessor's appraisal using identical information. Michel testified on cross-examination that, before he performed his appraisal, he reviewed twelve years' worth of information on the subject property and noted that its net rentable area ranged from 230,000 to 260,000 square feet throughout that period. Michel testified that this was an indication that the net rentable area of the property varied depending on the market. Michel also testified that the city assessor's field cards often reflected the assessor's personal opinion as to the property's net rentable area and that, often times, such information was incorrect. Michel explained, however, that he had no reason to believe that the tax assessor's information in this case was incorrect. Michel also stated that he reviewed the plaintiff's rent rolls between 2006 and 2008 and that the discrepancies reflected in those exhibits did not alter his conclusion. The following day, the defendant's appraiser, Fazio, testified as to his appraisal of the property. On direct examination, Fazio stated that "there [are] several square footages that are delineated for the subject property depending on what document you look at." Fazio also testified that he disagreed with Michel's reliance on the assessor's records, and instead that he relied on an oral representation by Tara Deluca, an agent of the plaintiff, who stated that the property's size was 256,974 square feet. Cross-examination revealed, however, that this oral representation was made during a later on-site inspection of the property in 2011. Fazio admitted that he did not make any notes regarding his conversation with Deluca and that he was unsure whether the figure she gave him included nonrentable areas of the property as well. Finally, Fazio testified that his net rentable area calculation included the 6400 square feet in common areas because he believed that the tenants owned an equal share of these spaces and, as such, their rent per square foot included a percentage of the common areas. On the basis of Michel's and Fazio's conflicting testimony, we conclude that the trial court reasonably could have discredited both witnesses' testimony as it related to the property's net rentable area. As discussed in the preceding paragraphs, "the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony.... [T]he trial court is privileged to adopt whatever testimony [it] reasonably believes to be credible." (Internal quotation marks omitted.) United Technologies Corp. v. East Windsor , 262 Conn. 11, 26, 807 A.2d 955 (2002). In this case, Michel stated that net rentable area is calculated by subtracting the common area from the gross building area and that the assessor's information reflected a net rentable area of 238,874 square feet. A closer inspection of the assessor's information, however, reveals that this figure of 238,874 square feet included the 6400 square feet of common space area. As such, it was reasonable for the court to discredit Michel's testimony as to the property's net rentable area. Likewise, the court reasonably could have discredited Fazio's testimony regarding the property's net rentable area of 256,974 square feet on the grounds that he relied solely on an oral representation made three years after the revaluation date and that he was unsure whether this figure included nonrentable areas. With regards to the documentary evidence admitted at trial, we conclude that the court reasonably could have found that the net rentable area of the property was 243,586 square feet. In its memorandum of decision, the court recognized the different net rentable area figures contained in the plaintiff's 2006, 2007, and 2008 rent rolls. The trial court considered these documents and ultimately determined that it was more appropriate to rely on the 2006 annual income and expense report. We have consistently held that "[t]he court has wide discretion in the admission of evidence and in determining what weight to give any such evidence." Nolan v. Milford , supra, 92 Conn.App. at 609, 886 A.2d 493. In this case, "[t]he court was required . to consider the evidence it admitted.... It did so and determined what weight to give to the evidence ." (Citation omitted.) Id., at 610-11, 886 A.2d 493. The court's factual finding that the property had a net rentable area of 243,586 square feet was adequately supported by the evidence admitted and was not based upon an erroneous rule of law. O'Brien v. Board of Tax Review , supra, 169 Conn. at 135-37, 362 A.2d 914. Accordingly, we conclude that the court's finding, as it relates to the net rentable area, was not clearly erroneous. II The defendant's final claim is that the trial court improperly excluded $190,000 in "other income" attributable to the property when it calculated the property's potential gross income. We disagree. As a preliminary matter, we note that the defendant's proposed addition of $190,000 in "other income" is derived from a 2007 audit report that was admitted at trial. This $190,000 figure is comprised of three separate items: $165,637 of interest earned on a money market account; $14,264 of conference room income; and $10,300 of "tenant other income." Each will be addressed in turn. A Tenant Other Income We quickly dispose of the defendant's claim that the trial court's potential gross income calculation should have included $10,300 attributable to "tenant other income." Although Fazio testified that he included this figure in his calculation of the property's potential gross income, he admitted that he did not know what this figure actually represented. The defendant failed to produce additional testimony or other evidence clarifying what was contained within this figure. Accordingly, the court was well within its province, as the trier of fact, to conclude that this figure should not be added to the property's potential gross income. B Interest Income We now address whether the court improperly excluded $165,637 of interest income derived from the plaintiff's money market account. In its memorandum of decision, the trial court excluded this income from its computation of the property's potential gross income and concluded that "$26 [per square foot] is a fair resolution of the subject's potential gross income, as of October 1, 2008." The defendant argues that the court's failure to include this income was clearly erroneous, and that our decision in Pilot's Point Marina, Inc. , requires us to conclude that the court committed reversible error. We disagree. In Pilot's Point Marina, Inc. , the plaintiff owned one of the largest marinas in New England. Pilot's Point Marina, Inc. v. Westbrook , supra, 119 Conn.App. at 601, 988 A.2d 897. On October 1, 2006, the defendant town assessed the property at a value of $19 million. Id. The plaintiff appealed that assessment, pursuant to § 12-117a, and argued that the property's fair market value as of that date was $15,700,000. Pilot's Point Marina, Inc. v. Westbrook , Superior Court, judicial district of Middlesex, Docket No. CV-07-4007441-S, 2008 WL 4926930, *1 (November 6, 2008), rev'd, 119 Conn.App. 600, 988 A.2d 897 (2010). The trial court reviewed the town's assessment de novo and found, in part, that the marina generated $1,611,042 from slip rentals as well as winter and summer storage fees. Id., at *3. The court, however, "failed to include $102,192 of summer storage income in its final EGI [effective gross income] calculation [pursuant to the income capitalization method]. The court articulated its omission by explaining that it was aware of the income generated through summer storage but chose to disregard it because most marinas do not offer summer storage, and, therefore, the summer storage income realized by the plaintiff was not representative of the market." Pilot's Point Marina Inc. v. Westbrook , supra, 119 Conn.App. at 603, 988 A.2d 897. Ultimately, the trial court concluded that the property had been overvalued, and so it reduced the town's assessment by approximately $2 million. Id., at 602, 988 A.2d 897. On appeal in Pilot's Point Marina, Inc., we agreed with the defendant that the court's failure to include the summer boat storage income was clearly erroneous. Id., at 603-604, 988 A.2d 897. In doing so, we held that "[p]ursuant to § 12-63b (b), the court is required to consider both market rent and actual rent when determining fair market value using the income capitalization method.... Moreover, if the property is devoted to the use for which it is best adapted and is in a condition to produce or is producing its maximum income, the actual rental is a very important element in ascertaining its value.... Consequently, in light of the actual income generated by the property through summer boat storage, the court's failure to include any summer storage income in its final EGI calculation was improper." (Citations omitted; footnotes omitted; internal quotation marks omitted.) Id. The defendant argues that the interest income derived from a money market account is "no more or less attributable to the land" than the summer boat storage income in Pilot's Point Marina, Inc. We are unpersuaded. As a preliminary matter, we note that in Pilot's Point Marina, Inc. , both the plaintiff's and the defendant town's appraisers agreed that the income derived from summer boat storage was income attributable to the property; they merely disagreed as to how much income was derived from those rentals for the revaluation year of 2006. See Pilot's Point Marina, Inc. v. Westbrook , supra, Superior Court, Docket No. CV-07-4007441-S, 2008 WL 4926930, at *2-4. Nonetheless, the trial court excluded this income from its calculations on the ground that the plaintiff "basically establishes its own market," in that it was the only local marina that had the ability to earn income from summer boat storage. Id., at *3. Thus, although the parties agreed that the income from summer boat storage was, in fact, attributable to the property, the court excluded such income from its calculations because it did not believe that it accurately reflected the earning capacity of similarly situated marinas. See id. In the present case, however, the parties' appraisers disagreed as to whether this "interest income" was attributable to the property itself. Specifically, Fazio opined that the interest income derived from the plaintiff's money market account should be included in the property's potential gross income because "the interest is . from the income derived from the building" and was thus, in his judgment, "income to the building." Michel, however, disagreed, testifying that interest and dividends should not be included as income under the direct capitalization method because, in his opinion, this income is unrelated to the property. Instead, he stated, "It's relative to the ownership and how they handle their . money." Michel also testified that, in his twenty-five years of experience, he had never included interest income when calculating a property's fair market value pursuant to the income capitalization approach. Thus, unlike the court in Pilot's Point Marina, Inc. , the trial court in this case had to resolve the threshold issue of whether this income was attributable to the property and thus should be included in the court's computation of the property's potential gross income. We have long dichotomized between income attributable to the plaintiff's real estate and income attributable to the plaintiff's business for purposes of tax assessments. Whitney Center, Inc. v. Hamden , 4 Conn.App. 426, 427, 494 A.2d 624 (1985). In Whitney Center, Inc. , the trial court reduced the defendant town's assessments for the plaintiff's life care center during the taxable years of 1981 and 1982. Id. Although the appraisers agreed as to "the correct method for valuation, the appraisers disagreed on which components of the plaintiff's total income should be attributed to the real property rather than to the business, and on the valuation of those components." Id., at 428-29, 494 A.2d 624. On appeal, the defendant claimed that the trial court "erred in relying upon an appraisal that did not include a calculation of maximum income"; id., at 427, 494 A.2d 624 ; which the defendant argued should have included "a lump sum entrance endowment and a monthly service fee thereafter for the rights and services provided by the plaintiff." Id. We affirmed the judgment of the trial court and held that "[f]or assessment purposes, the value of the plaintiff's real estate must be distinguished from the value of its business since it is the realty itself which is subject to the property tax assessment." Id. In light of the conflicting testimony presented in this case, the trial court reasonably could have found that the plaintiff's interest income was not attributable to the property. We are again reminded that "the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony.... [T]he trial court is privileged to adopt whatever testimony he reasonably believes to be credible." (Internal quotation marks omitted.) United Technologies Corp. v. East Windsor , supra, 262 Conn. at 26, 807 A.2d 955. The court therefore was within its province to credit the testimony of Michel, an appraiser with twenty-five years of experience, and exclude this figure from its computations. Under our deferential standard of review, the court's findings "must stand unless there was an error of law or a legal or logical inconsistency with the facts found." (Internal quotation marks omitted.) Whitney Center, Inc. v. Hamden , supra, 4 Conn.App. at 429-30, 494 A.2d 624. The court's decision to exclude this "interest income" was consistent with Michel's testimony and was adequately supported by the record. We have found no law for the proposition either that the trial court must consider an interest bearing account in performing such calculations or that its failure to do so constitutes reversible error. See Redding Life Care, LLC v. Redding , 308 Conn. 87, 106-11, 61 A.3d 461 (2013) (permitting-but not requiring-the trial court to consider a hypothetical entry fee escrow account in its valuation of the subject property). Accordingly, we conclude that the court's finding, as it relates to the "interest income," was not clearly erroneous. C Conference Room Rental Income Lastly, we address the defendant's argument concerning $14,264 in conference room income. At trial, the plaintiff presented the testimony of Jeffrey Newman, the executive vice president of Malkin Properties, which is the company that managed the marketing and leasing of the subject property. Newman testified that the conference room, fitness center, and dining area were for tenants only, and that these areas "are not leased to tenants, but they're available for use by tenants." With respect to the conference room, Newman testified that tenants were able to "call us up and reserve it." Later that day, Michel was asked a series of questions regarding the property's "other income." Michel stated that the conference room was "an amenity provided to the tenants, and you can't achieve rent on that." This testimony was consistent with the plaintiff's 2006, 2007, and 2008 rent rolls, which consistently stated that the conference room has a rent potential of zero dollars. The following day, Fazio testified as to the conference room income. On cross-examination, Fazio conceded that the references within the plaintiff's 2006, 2007, and 2008 rent rolls stated that the "rent potential" and "rent actual" from the conference room was zero dollars. He maintained, however, that he believed that the tenants were required to pay a fee to use the conference center, it was not part of the tenant's monthly rent, and, therefore, it was considered "income to the building." This opinion was consistent with the plaintiff's 2006 annual income and expense report, which reported a year-to-date income of $6450 from the conference room in 2006, as well as a 2007 audit statement, which reported a year-to-date income of $14,264 in 2007. The defendant failed, however, to elicit any information from either Fazio or Newman as to the regularity of these rentals, the rate charged by the plaintiff, or the costs incurred by the plaintiff in renting this space. In the absence of such additional facts, we cannot conclude that it was clearly erroneous for the court to exclude this figure from its potential gross income calculation. In Pilot's Point Marina, Inc. , the trial court received comprehensive testimony from both appraisers as to the regularity of summer boat storage rentals; the average length of such rentals and the corresponding effect on the income generated by such rentals; and the income earned over the course of several years of storage rentals. Pilot's Point Marina, Inc. v. Westbrook , supra, Superior Court, Docket No. CV-07-4007441-S, 2008 WL 4926930. The record in this case, by contrast, lacks comparable information as to the conference room rentals. At most, the court was presented with conflicting testimony and evidence as to whether the conference room could be considered income attributable to the property, whether the conference room was able to achieve a regular and consistent income stream and, even if that was established, which figure most accurately represented that income stream on a yearly basis. We are reminded once again that "[t]he process of estimating the value of property for taxation is, at best, one of approximation and judgment, and there is a margin for a difference of opinion." (Internal quotation marks omitted.) Carol Management Corp. v. Board of Tax Review , 228 Conn. 23, 39-40, 633 A.2d 1368 (1993). Here, the court was presented with sufficient evidence to reasonably conclude that the property did not receive income from the conference room. Alternatively, the court reasonably could have found that it lacked sufficient evidence as to the consistency of its use for income-generating purposes. In either case, we conclude that it was not clearly erroneous for the court to exclude this amount from its calculation and instead to reach a compromise figure of $26 per square foot. The judgment is affirmed. In this opinion the other judges concurred. In the appeal to the Superior Court, the Board of Assessment Appeals of the City of Norwalk and the city's tax assessor, Michael J. Stewart, were also named as defendants. We refer hereinafter to these parties individually by name as necessary and to the city of Norwalk as the defendant. We refer to Fairfield Merritview SPE, LLC, as the plaintiff throughout this opinion. The named plaintiff, Fairfield Merritview Limited Partnership, is a related entity. See Fairfield Merrittview Ltd. Partnership v. Norwalk, 320 Conn. 535, 539, 133 A.3d 140 (2016). General Statutes § 12-117a provides in relevant part: "Any person . claiming to be aggrieved by the action of the board of tax review or the board of assessment appeals, as the case may be, in any town or city may, within two months from the date of the mailing of notice of such action, make application . to the superior court for the judicial district in which such town or city is situated . The court shall have power to grant such relief as to justice and equity appertains, upon such terms and in such manner and form as appear equitable . If the assessment made by the board of tax review or board of assessment appeals, as the case may be, is reduced by said court, the applicant shall be reimbursed by the town or city for any overpayment of taxes ." This court, in Fairfield Merrittview Ltd. Partnership v. Norwalk, 149 Conn.App. 468, 89 A.3d 417 (2014), rev'd, 320 Conn. 535, 133 A.3d 140 (2016), concluded that the trial court lacked subject matter jurisdiction over the plaintiff's appeal. Id., at 477-78, 89 A.3d 417. Our decision rested on the fact that, prior to the assessment, the plaintiff restructured its business from a limited partnership to a limited liability company. "On the date of the valuation, October 1, 2008, the limited liability company was the sole owner of the property. Nevertheless, Fairfield Merrittview Limited Partnership, the limited partnership, was the entity that challenged the assessor's valuation before the board even though it had conveyed its interest in the property more than a year prior to the valuation date. The actual owner of the property, the limited liability company, did not participate in that appeal." Id., at 474, 89 A.3d 417. We concluded that this was fatal to the plaintiff's appeal and, as such, we reversed the judgment of the trial court. Our Supreme Court, however, reversed that decision and held that the plaintiff's "prompt amendment of the complaint to add the LLC as a party plaintiff was effective to confer jurisdiction on the trial court, regardless of whether the action was instituted by an improper party, the partnership." Fairfield Merrittview Ltd. Partnership v. Norwalk, 320 Conn. 535, 547, 133 A.3d 140 (2016). "[F]air market value is defined as the price that a willing buyer would pay a willing seller based on the highest and best possible use of the land assuming, of course, that a market exists for such optimum use." (Internal quotation marks omitted.) United Technologies Corp. v. East Windsor, 262 Conn. 11, 25, 807 A.2d 955 (2002) ; see also Aetna Life Ins. Co. v. Middletown, 77 Conn.App. 21, 35, 822 A.2d 330 (defining fair market value as "the price that would result from the fair negotiations of a willing seller and a desirous buyer"), cert. denied, 265 Conn. 901, 829 A.2d 419 (2003). General Statutes § 12-111(a) provides in relevant part: "Any person . claiming to be aggrieved by the doings of the assessors of such town may appeal therefrom to the board of assessment appeals.... Such board may equalize and adjust the grand list of such town and may increase or decrease the assessment of any taxable property or interest therein and may add an assessment for property omitted by the assessors which should be added thereto...." " 'The expressions "actual valuation," "actual value," "market value," "market price" and . "fair value" are synonymous.' " O'Brien v. Board of Tax Review, 169 Conn. 129, 137-38, 362 A.2d 914 (1975) (Bogdanski, J., dissenting). "The comparable sales approach is also known as the market data approach or sales comparison approach.... It is a process of analyzing sales of similar recently sold properties in order to derive an indication of the most probable sales price of the property being appraised.... After identifying comparable sales, the appraiser makes adjustments to the sales prices based on elements of comparison." (Internal quotation marks omitted.) Abington, LLC v. Avon, 101 Conn.App. 709, 711-12 n.4, 922 A.2d 1148 (2007). "The income capitalization approach consists of the following seven steps: (1) estimate gross income; (2) estimate vacancy and collection loss; (3) calculate effective gross income (i.e., deduct vacancy and collection loss from estimated gross income); (4) estimate fixed and operating expenses and reserves for replacement of short-lived items; (5) estimate net income (i.e., deduct expenses from effective gross income); (6) select an applicable capitalization rate; and (7) apply the capitalization rate to net income to arrive at an indication of the market value of the property being appraised.... The process is based on the principle that the amount of net income a property can produce is related to its market value." (Internal quotation marks omitted.) Abington, LLC v. Avon, 101 Conn.App. 709, 712 n.4, 922 A.2d 1148 (2007). The court agreed with both appraisers that the income capitalization approach was the most desirable method of determining the property's fair market value. The defendant has not challenged this finding. "A property's highest and best use is commonly defined as the use that will most likely produce the highest market value, greatest financial return, or the most profit from the use of a particular piece of real estate." (Emphasis omitted; internal quotation marks omitted.) United Technologies Corp. v. East Windsor, 262 Conn. 11, 25, 807 A.2d 955 (2002). "Direct Capitalization is a method used in the income capitalization approach to convert a single year's income expectancy into a value indication. This conversion is accomplished in one step, either by dividing the income estimate by an appropriate income rate or by multiplying it by an appropriate income factor." The Appraisal of Real Estate (12th Ed. 2001), p. 529. Pursuant to General Statutes § 12-63b(b), "the term 'market rent' means the rental income that such property would most probably command on the open market as indicated by present rentals being paid for comparable space. In determining market rent the assessor shall consider the actual rental income applicable with respect to such real property under the terms of an existing contract of lease at the time of such determination." The capitalization rate is considered "the rate a reasonable investor would seek on his capital or equity ." New Haven Savings Bank v. West Haven Sound Development, 190 Conn. 60, 65-66, 459 A.2d 999 (1983). In other words, the capitalization rate is a projection of the buyer's return on investment based upon a comparison of the property's income producing capacity to its purchase price. Here, both appraisers calculated the applicable capitalization rate by dividing the property's net operating income (NOI) by its sale price. "By dividing the annual net rental figure by the capitalization rate, market value is ascertained." Id., at 66, 459 A.2d 999. During the first day of trial, Michel testified that "gross electric basis" means that "the tenant pays a gross rent plus he pays an additional charge for tenant electric directly. And then from that you subtract a vacancy factor, which we discussed, to come up with your potential gross income." These additional reimbursements included a utility reimbursement of $2.15 per square foot; and an expense reimbursement of $2.65 per square foot. In arriving at a net rentable area of 243,586 square feet, the court subtracted 6400 square feet from the building's gross square footage of 249,986 square feet. The 6400 square feet deducted represents the common areas located on the first floor, including the lobby, cafeteria, fitness center, and conference room. Both parties agree that this is the proper method of calculating net rentable area. The defendant has not challenged the courts factual finding as to the market rental value of the subject property. Instead, the defendant claims that the court should have added $190,000 in "other income" to the property's PGI of $6,333,236 before proceeding to the next step in the direct capitalization formula. At oral argument before this court, the defendant asserted for the first time that the court's credibility determination resulted from an erroneous interpretation of General Statutes § 12-63c. This argument, however, was not raised in the defendant's briefs. "[I]t is well settled that claims on appeal must be adequately briefed . and cannot be raised for the first time at oral argument before the reviewing court." (Internal quotation marks omitted.) JMS Newberry, LLC v. Kaman Aerospace Corp., 149 Conn.App. 630, 638 n.8, 90 A.3d 249, cert. denied, 312 Conn. 915, 93 A.3d 598 (2014) ; see Practice Book § 61-10. Accordingly, we decline to address this argument. The following exchange occurred between counsel for the plaintiff and Newman: "Q. All right. And are there building amenities that are specifically leased to tenants? "A. Well, yes. For instance, the cafeteria, the fitness, the fitness center, the conference center are not leased to tenants, but they're available for use by tenants. "Q. Okay. And when you said they are available for use, you mean on a-if somebody wants to use the conference room on a particular day, they just- "A. (Overlapping) Call us up and reserve it. "Q. -rent it for-" "A. Right. "Q. -or for an hour or whatever it may be? "A. Correct." We note that, had the trial court included this $14,264 in conference room fees in its calculations, the resulting increase in the property's fair market value would be equal to less than one-half of one percent.

12489676

Hart PRENDERGAST v. COMMISSIONER OF MOTOR VEHICLES

Prendergast v. Comm'r of Motor Vehicles

2017-04-25

AC 38895

1087

1094

160 A.3d 1087

160

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-09-08T21:16:17.237805+00:00

Fastcase

Hart PRENDERGAST v. COMMISSIONER OF MOTOR VEHICLES

Hart PRENDERGAST v. COMMISSIONER OF MOTOR VEHICLES AC 38895 Appellate Court of Connecticut. Argued January 5, 2017 Officially released April 25, 2017 Malaina J. Sylvestre, certified legal intern, with whom was Kristi Thomaston, for the appellant (plaintiff). Christine Jean-Louis, assistant attorney general, with whom, on the brief, was George Jepsen, attorney general, Hartford, for the appellee (defendant). Lavine, Keller and Pellegrino, Js.

3180

19609

PELLEGRINO, J. The plaintiff, Hart Prendergast, appeals from the judgment of the Superior Court dismissing his appeal from the decision of the defendant, the Commissioner of Motor Vehicles, suspending his license to operate a motor vehicle pursuant to General Statutes § 14-227b. The plaintiff claims that the court improperly (1) found that there was substantial evidence in the record to support a finding that there was probable cause to arrest him for operating a motor vehicle while under the influence of alcohol or intoxicating liquor or drugs, and (2) concluded that his due process rights were not violated when the hearing officer continued the hearing to subpoena the police officers involved in the plaintiff's arrest. We affirm the judgment of the court. The following facts are relevant to our disposition of this appeal. On March 27, 2015, at approximately 10:46 p.m., Trooper Josue J. Dorelus of the state police responded to a two car collision on the southbound side of Route 15 near exit sixty-one in Hamden. While responding, he learned that one of the vehicles had left the scene of the accident. Upon arrival, Dorelus observed damage to the right side of the remaining vehicle. The operator of the vehicle told Dorelus that his vehicle was sideswiped by what he believed to be a blue sedan. Shortly before midnight that night, Hamden police received a call about a suspicious vehicle on Marietta Street in Hamden. The caller had seen the car "come in and park." Hamden police responded and observed the car with four flat tires, parked in the middle of the road with the operator asleep at the wheel. When Hamden police put out a dispatch about the vehicle, the state police responded, and the officers concluded that they had located a vehicle matching the description of the evading vehicle from the earlier accident on Route 15. Dorelus received a state police dispatch about the matter at 12:11 a.m. At approximately 12:30 a.m., Dorelus arrived at the scene, which was the intersection of Marietta Street and Dixwell Avenue in Hamden, a location immediately off Route 15. Upon Dorelus' arrival, Hamden police informed him that they had found a blue Nissan Altima that appeared to have been in a recent collision. They added that the operator, who appeared to be incapacitated and under the influence of alcohol, was sitting in the driver's seat with the key fob in his pocket. The motor, however, was not running at the time. Dorelus observed that the damage to the vehicle was consistent with the description provided by the accident victim. The car was in a stopped position facing southbound. The person in the operator's seat, later identified as the plaintiff, told Dorelus that he was traveling from Meriden and arrived at the location. Dorelus observed that the plaintiff had "a disheveled appearance" and had vomit on the collar of his jacket. As the plaintiff spoke, Dorelus detected an odor of alcohol emanating from his breath, and his eyes appeared to be bloodshot and glassy. The plaintiff subsequently failed one standardized field sobriety test and declined to take two others. At approximately 12:45 a.m., Dorelus placed the plaintiff under arrest for operating a motor vehicle under the influence of alcohol. At the police station, the plaintiff verbally refused to submit to a breath test for alcohol. On May 6 and May 27, 2015, the Department of Motor Vehicles conducted a hearing to determine whether to suspend the plaintiff's license pursuant to § 14-227b. On May 27, 2015, the hearing officer rendered a written decision finding that the plaintiff was operating a motor vehicle, that there was probable cause to arrest the plaintiff for operating under the influence, and that the plaintiff refused to submit to a chemical test. On the basis of these findings, as well as the fact that the plaintiff had a prior license suspension, the hearing officer suspended the plaintiff's license for one year. See General Statutes § 14-227b(i)(2)(C). The plaintiff appealed from the decision of the hearing officer to the court pursuant to General Statutes § 4-183. On appeal, the plaintiff challenged the hearing officer's findings (1) that the police officers had probable cause to arrest him for operating a motor vehicle while under the influence of intoxicating liquor, and (2) that he was operating the motor vehicle. The plaintiff claimed that the administrative record lacked substantial evidence to support these findings. Additionally, the plaintiff claimed that his right to due process of law was violated when the hearing officer, over the plaintiff's objection, continued the hearing in order to subpoena the arresting officer. The court affirmed the hearing officer's decision and dismissed the plaintiff's appeal. This appeal followed. Additional facts will be set forth as necessary. We first set forth our standard of review. "[J]udicial review of the commissioner's action is governed by the Uniform Administrative Procedure Act [ (act), General Statutes § 4-166 through 4-189 ], and the scope of that review is very restricted.... [R]eview of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable.... Neither this court nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or question of fact.... Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion.... "The substantial evidence rule governs judicial review of administrative fact-finding under the [act]. [See] General Statutes § 4-183(j)(5) and (6). An administrative finding is supported by substantial evidence if the record affords a substantial basis of fact from which the fact in issue can be reasonably inferred.... The substantial evidence rule imposes an important limitation on the power of the courts to overturn a decision of an administrative agency . "It is fundamental that a plaintiff has the burden of proving that the commissioner, on the facts before him, acted contrary to law and in abuse of his discretion [in determining the issue of probable cause].... The law is also well established that if the decision of the commissioner is reasonably supported by the evidence it must be sustained.... "We have stated that [p]robable cause, broadly defined, comprises such facts as would reasonably persuade an impartial and reasonable mind not merely to suspect or conjecture, but to believe that criminal activity has occurred.... Reasonable minds may disagree as to whether a particular [set of facts] establishes probable cause.... Thus, the commissioner need only have a substantial basis of fact from which [it] can be inferred . that the evidence in the administrative record supported a finding of probable cause with respect to the plaintiff's violation of [General Statutes] § 14-227a." (Citations omitted; internal quotation marks omitted.) Murphy v. Commissioner of Motor Vehicles , 254 Conn. 333, 343-44, 757 A.2d 561 (2000). I The plaintiff first claims that there was insufficient evidence in the record to establish that Dorelus had probable cause to believe that the plaintiff operated his motor vehicle while under the influence of intoxicating liquor or drugs in violation of § 14-227a. He argues that because he was not operating his motor vehicle at the time the police found him, the record lacked substantial evidence to support a finding that the police had probable cause to arrest him for operating a motor vehicle while under the influence. We are not persuaded. "It is well settled that operating encompasses a broader range of conduct than does driving." (Internal quotation marks omitted.) State v. Lee , 138 Conn.App. 420, 434, 52 A.3d 736 (2012), cert. granted on other grounds, 321 Conn. 911, 136 A.3d 644 (2016). "[T]here is no requirement that the fact of operation be established by direct evidence." Murphy v. Commissioner of Motor Vehicles , supra, 254 Conn. at 345, 757 A.2d 561. Our Supreme Court has observed that "[t]here is no distinction between direct and circumstantial evidence [so] far as probative force is concerned . In fact, circumstantial evidence may be more certain, satisfying and persuasive than direct evidence." (Citation omitted; internal quotation marks omitted.) Id., at 345 n.14, 757 A.2d 561. In order for an arresting officer to have probable cause to arrest someone for a violation of § 14-227a, there must be a "temporal nexus between liquor and operation." Murphy v. Commissioner of Motor Vehicles , 54 Conn.App. 127, 132, 733 A.2d 892 (1999), rev'd, 254 Conn. 333, 757 A.2d 561 (2000). "Although the police officer may draw any reasonable, logical inferences from the facts observed, he may not resort to mere speculation or conjecture, particularly . where there is no evidence of a temporal nexus between liquor and operation." Id. Applying these standards, we conclude that there is substantial evidence in the record to support a finding that Dorelus had probable cause to arrest the plaintiff for operating a motor vehicle while under the influence of liquor or drugs. Dorelus could reasonably and logically infer, on the basis of the facts known to him at the time of the arrest, that the plaintiff had consumed alcohol and had operated his motor vehicle. When the plaintiff was found asleep inside his vehicle, he displayed signs of intoxication. He admitted that he had traveled from Meriden to Hamden. The plaintiff's car had four flat tires and was parked in the middle of a street located immediately off Route 15. The car had damage that was consistent with the description of the damage to the car sideswiped on Route 15 less than two hours before. On the basis of these facts, it was not mere speculation or conjecture for Dorelus to infer that the plaintiff had operated his vehicle while under the influence of liquor. Additionally, the damage to the plaintiff's vehicle was consistent with the accident that had occurred less than two hours before the plaintiff was found by the police, which supports the hearing officer's finding that there was a temporal nexus between the plaintiff's consumption of liquor and operation of his vehicle. Accordingly, the plaintiff's first claim fails. II The plaintiff next argues that he was deprived of his right to due process of law when the hearing officer continued his case in order to subpoena the police officers to testify about his arrest. The plaintiff argues that because the defendant already had rested his case, the hearing officer lacked the discretion to continue the case and subpoena the police officers, and that the plaintiff was thereby deprived of his right to due process. We disagree. The following additional facts are relevant to our analysis of this claim. The initial administrative hearing for the petitioner's case took place on May 6, 2015. Only the hearing officer and counsel for the plaintiff were present at this hearing. The hearing officer, on behalf of the defendant, introduced the police reports from the plaintiff's arrest. He then stated, "All right. You're up." The plaintiff's counsel then argued that there was insufficient evidence of a nexus between operation and intoxication. The hearing officer responded, "[s]o, what the Department [of Motor Vehicles] wants us to do in these situations is to give the officer one opportunity to come in and sort of clarify his report when these type[s] of questions come up; so, I'm going to have to continue the hearing. We will, on our side, subpoena the officer." The plaintiff objected on due process grounds, but a second day of hearings took place on May 27, 2015, at which Dorelus and the two Hamden officers testified. On appeal, the plaintiff asserts that the hearing officer's continuation of the case after the defendant had rested his case violated his right to due process of law. The plaintiff, however, has failed to point to any statute, regulation, or case law that would prohibit a hearing officer from continuing the hearing in order to obtain additional evidence under these circumstances. On the contrary, there are statutes and regulations that explicitly permit the hearing officer to grant a continuance. Section 14-227b(g) provides that "[a]t the request of [the motorist] or the hearing officer and upon a showing of good cause, the commissioner may grant one or more continuances...." Additionally, the Department of Motor Vehicles' regulations specifically address this situation by stating that "[a]t the hearing the commissioner shall not require the presence and testimony of the arresting officer, or any other person, but the hearing officer may make an appropriate order, as authorized by section 14-110 of the Connecticut General Statutes, to obtain the testimony of such arresting officer or other witness, if the same appears necessary to make a proper finding on one or more of the issues stated in subsection (g) or (j) of section 14-227b of the Connecticut General Statutes." Regs., Conn. State Agencies § 14-227b-18(a). Here, the hearing officer determined that it was necessary to subpoena the arresting officers in order to make a proper finding on the issue of probable cause to arrest for operation under the influence, and appropriately continued the hearing pursuant to § 14-227b (g). The fact that the defendant had "rested" his case is immaterial to the hearing officer's ability to continue the hearing. Unlike the situation in certain criminal cases, in administrative proceedings there is no rule that limits or prevents an agency from presenting further evidence after it has concluded its case. Cf. State v. Dunbar , 51 Conn.App. 313, 317-20, 721 A.2d 1229 (1998), cert. denied, 247 Conn. 962, 724 A.2d 1126 (1999) ; Practice Book § 42-35(3). "[H]earings before administrative agencies, such as those before the commissioner of motor vehicles, are informal and are not governed by the strict or technical rules of evidence." (Internal quotation marks omitted.) Santiago v. Commissioner of Motor Vehicles , 134 Conn.App. 668, 673, 39 A.3d 1224 (2012). In addition, the plaintiff had notice of the hearing and the charges, and was afforded a full opportunity to cross-examine the police officers following the continuation of the hearing. Accordingly, the hearing officer acted within the scope of his authority by continuing the plaintiff's hearing, and the plaintiff was not deprived of his right to due process of law. The court, therefore, properly dismissed the appeal. The judgment is affirmed. In this opinion the other judges concurred. General Statutes § 14-227b(g) sets forth a four part test for the administrative agency to assess whether a license suspension is warranted. The following issues must be found: "(1) Did the police officer have probable cause to arrest the person for operating a motor vehicle while under the influence of intoxicating liquor or any drug or both; (2) was such person placed under arrest; (3) did such person refuse to submit to such test or analysis or did such person submit to such test or analysis, commenced within two hours of the time of operation, and the results of such test or analysis indicated that such person had an elevated blood alcohol content; and (4) was such person operating the motor vehicle...." The plaintiff challenges the findings made by the hearing officer under both the first and fourth prongs of the four part test set forth in § 14-227b (g) under the same theory that there was insufficient evidence to establish that he operated his vehicle or that there was probable cause for the police officer to arrest him for operating his vehicle while intoxicated. Because we conclude that there was sufficient evidence to support a finding of probable cause to arrest for operating under the influence, our analysis disproves the plaintiff's theory as it applies to either the first or fourth prongs of § 14-227b(g). Although our Supreme Court reversed this court's decision in Murphy, it did so by applying the same "temporal nexus" standard. Murphy v. Commissioner of Motor Vehicles, supra, 254 Conn. at 347, 757 A.2d 561. Specifically, Dorelus observed that the plaintiff's eyes were bloodshot and glassy, he had a disheveled appearance, and he had vomit on his collar. Additionally, the plaintiff failed one field sobriety test before refusing to submit to any additional tests. The plaintiff cites State v. DeCoster, 147 Conn. 502, 162 A.2d 704 (1960), for the proposition that there was insufficient evidence to support a finding of a temporal nexus between liquor and operation on the basis of the evidence presented in his hearing. In DeCoster, the defendant was convicted of operating a motor vehicle while intoxicated. Id., at 503, 162 A.2d 704. The evidence supported a finding that a police officer found the defendant, who was intoxicated, slumped over the steering wheel of his motor vehicle. Id., at 504, 162 A.2d 704. The vehicle's key was in the ignition, but the ignition was in the off position. Id. The two right tires on the motor vehicle were flat, and the vehicle exhibited body damage on its right side. Id. Four traffic signs close to where the motor vehicle was stopped had been knocked down. Id. In reversing in part the conviction on the ground of insufficient evidence, our Supreme Court in DeCoster concluded that the state had failed to demonstrate the critical temporal nexus between intoxication and operation. Id., at 505, 162 A.2d 704. The court noted that although the evidence supported an inference that the defendant's motor vehicle had struck the signs along the nearby intersection, there were no witnesses who had observed the defendant operating the motor vehicle and no evidence to show how long it had been stationary. Id., at 504-505, 162 A.2d 704. The present case is distinguishable in at least two regards. First, DeCoster was a criminal case requiring proof of operation beyond a reasonable doubt, whereas the present case is an administrative case with a lower burden of proof. Second, there were no witnesses in DeCoster who could help establish the time that the stop signs were hit. Here, after speaking with the accident victim, Dorelus was able to establish that the accident had occurred within two hours from when he located the plaintiff. DeCoster is therefore distinguishable from the plaintiff's claim. We also note that allowing the hearing officer the option to subpoena the police officers after reviewing the evidence is in the interests of efficiency and judicial economy. To require the presence of police officers at every § 14-227b hearing would be a significant waste of resources, as police officer testimony is not always necessary for the hearing officer to arrive at his or her findings. General Statutes § 14-110(a) provides that "[t]he commissioner . in the performance of his duties, may . issue subpoenas...."

12489679

BRIAN S. v. COMMISSIONER OF CORRECTION

Brian S. v. Comm'r of Corr.

2017-04-25

AC 38359

1110

1116

160 A.3d 1110

160

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-09-08T21:16:17.237805+00:00

Fastcase

BRIAN S. v. COMMISSIONER OF CORRECTION

BRIAN S. v. COMMISSIONER OF CORRECTION AC 38359 Appellate Court of Connecticut. Argued January 30, 2017 Officially released April 25, 2017 Michael W. Brown, assigned counsel, Wethersfield, for the appellant (petitioner). Timothy F. Costello, assistant state's attorney, with whom, on the brief, were David S. Shepack, state's attorney, Litchfield, and Angela R. Macchiarulo, senior assistant state's attorney, for the appellee (respondent). DiPentima, C. J., and Mullins and Flynn, Js. In accordance with our policy of protecting the privacy interests of the victims of sexual abuse and the crime of risk of injury to a child, we decline to use the petitioner's full name or to identify the victim or others through whom the victim's identity may be ascertained. See General Statutes § 54-86e.

2667

17313

MULLINS, J. The petitioner, Brian S., 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 erred in concluding that he failed to prove that his criminal trial counsel had provided ineffective assistance. We affirm the judgment of the habeas court. The following facts and procedural history inform our review. After years of repeatedly sexually assaulting his minor daughter, the petitioner was arrested, charged, and convicted of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70(a)(2) and one count of risk of injury to a child in violation of General Statutes § 53-21(2). This court affirmed the petitioner's conviction on direct appeal. State v. Brian L. S ., 129 Conn.App. 902, 19 A.3d 275, cert. denied, 302 Conn. 907, 23 A.3d 1246 (2011). On September 17, 2014, the petitioner filed an amended petition for a writ of habeas corpus in which he alleged that his criminal trial counsel had provided ineffective assistance. After a trial, the court denied the petition. The court concluded that the petitioner failed to prove his claim because he failed to establish that counsel's performance had been deficient or that he was prejudiced by any alleged deficiencies. The court, thereafter, granted the petition for certification to appeal from the judgment denying the petitioner's habeas petition. This appeal followed. On appeal, the petitioner claims that the court erred in concluding that he failed to prove his claim of ineffective assistance of criminal trial counsel. The plaintiff specifically claims: "The habeas court erred by finding that the petitioner's right to the effective assistance of counsel was not violated by counsel's failure to adequately challenge the medical evidence offered by the prosecuting authority from the complainant's colposcopic examination." He asserts that counsel's ability to challenge the medical evidence was hampered by his failure to consult "with a qualified expert with specific expertise in forensic medical examinations of suspected child abuse victims ." We are not persuaded. Before analyzing the petitioner's claim, we set forth the applicable law and the standard of review governing claims of ineffective assistance of counsel. "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.... The issue, however, of [w]hether the representation [that] a defendant received at trial was constitutionally inadequate is a mixed question of law and fact.... As such, that question requires plenary review by this court unfettered by the clearly erroneous standard.... "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.... It is axiomatic that the right to counsel is the right to the effective assistance of counsel.... "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.... 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.... A court can find against a petitioner, with respect to a claim of ineffective assistance of counsel, on either the performance prong or the prejudice prong ." (Citations omitted; internal quotation marks omitted.) Michael T. v. Commissioner of Correction , 319 Conn. 623, 631-32, 126 A.3d 558 (2015). "With respect to the performance prong of Strickland , we are mindful that [j]udicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.... There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.... "Similarly, the United States Supreme Court has emphasized that 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; [but] strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Id., at 632-33, 126 A.3d 558. Turning to the performance prong of the Strickland test, as applied to the present case, the petitioner contends that his "constitutional right to the effective assistance of counsel . was violated by his counsel's failure to consult with, retain, and present the testimony of a forensic pediatric gynecologist, or other qualified medical expert, with an expertise in investigating and evaluating child sexual abuse allegations." He contends that this information and testimony was necessary so that counsel could combat and adequately challenge the testimony offered by the state's witness, Edward C. Kavle, a pediatrician. In response, the respondent, the Commissioner of Correction, argues that the petitioner's claim lacks merit because trial counsel consulted with Bernard Luck, a gynecologist, who had practiced for thirty-five years, and who had experience with child sexual abuse matters. The respondent contends that the petitioner failed to "carry his burden to prove that [his trial counsel had] performed deficiently by relying upon Dr. Luck, a highly experienced gynecologist with a background in examining children. In particular, the petitioner failed to present any competent evidence that Dr. Luck lacked the qualifications to render a reliable opinion in this case." We agree with the respondent. The following additional facts are necessary. During the petitioner's criminal trial, the state had presented the testimony of its expert, Kavle. Kavle had testified that he had performed an examination of the victim, and that he discovered a full thickness tear of the victim's hymen at the 2 o'clock position. Kavle explained that this tear was consistent with child sexual abuse, but that it did not mean, necessarily, that it was caused by sexual abuse. Kavle also explained that he had used a colposcope to perform the examination of the victim, and that he had made a video recording of the colposcopic examination. During the habeas trial, the petitioner's criminal trial counsel, Jeffrey Beck, testified. Beck testified that he had "a pretty good recollection" of this case. He stated that in preparation for the petitioner's criminal trial, he had reviewed the victim's forensic interviews, the records from the Department of Children and Families, and the victim's psychiatric materials, including treatment notes and therapy notes. Beck testified that his theory of defense for this case was that the victim was fabricating the allegations, especially in light of the victim's admissions that she had made up some of the statements and allegations she had relayed to her therapist regarding the petitioner. When Beck was asked if he had consulted with "a medical expert to help [him] evaluate the medical findings of child sexual abuse," Beck stated that he had consulted with Luck, a gynecologist with thirty-five years experience, including some experience in child sexual assault matters. Beck also stated that he had provided Luck with Kavle's report, that Luck had reviewed Kavle's report, and that Luck had confirmed Kavle's finding that "there was some blunt force trauma to the vaginal area of the [victim]." Beck also repeated his opinion that the best defense in this case was that the victim had fabricated her allegations of sexual abuse because the victim had admitted, even on the witness stand, that she had made up some of her allegations. The petitioner also provided testimony from Jennifer Canter, a child abuse pediatrician. Canter explained that she was board certified in a subspecialty called "child abuse pediatrics" by the American Board of Pediatrics, which first began such board examinations for specialization in this area in 2009. Canter testified that she reviewed Luck's report and the video of the colposcopic examination, and that she disagreed with Kavle's opinion. In Canter's opinion, the victim's hymen appeared "perfectly normal." The petitioner did not call Luck as a witness at his habeas trial. The petitioner argues that Beck's performance was deficient because he failed to consult with and to present the testimony of a medical professional with expertise in investigating and evaluating child sexual abuse allegations. He contends that this failure by counsel made it impossible for counsel to challenge the testimony of the state's expert and his conclusions that there was evidence of blunt force trauma to the victim's hymen. We are not persuaded. "[T]here is no per se rule that requires a trial attorney to seek out an expert witness.... Where trial counsel has consulted with such experts, however, but made the tactical decision not to produce them at trial, such decisions properly may be considered strategic choices. Furthermore, trial counsel is entitled to make strategic choices in preparation for trial." (Citation omitted; internal quotation marks omitted.) Santos v. Commissioner of Correction , 151 Conn.App. 776, 785, 96 A.3d 616 (2014). "A trial attorney is entitled to rely reasonably on the opinion of an expert witness; see Doehrer v. Commissioner of Correction , 68 Conn.App. 774, 783, 795 A.2d 548, cert. denied, 260 Conn. 924, 797 A.2d 520 (2002) ; and is not required to continue searching for a different expert [or for multiple experts]. See Santiago v. Commissioner of Correction , 90 Conn.App. 420, 426, 876 A.2d 1277 (counsel was entitled to rely on expert opinion when determining that petitioner did not suffer from mental defect, and was not required to seek an indeterminate number of expert opinions before concluding that petitioner did not suffer from mental defect or disease), cert. denied, 275 Conn. 930, 883 A.2d 1246 (2005), cert. denied sub nom. Santiago v. Lantz , 547 U.S. 1007, 126 S.Ct. 1472, 164 L.Ed.2d 254 (2006). [The court] cannot conclude that [counsel's] performance was deficient when [counsel] consulted with an expert witness regarding the victim's physical examination, yet reasonably concluded not to use the expert witness at trial after determining that such testimony would not benefit the petitioner's defense." Stephen S. v. Commissioner of Correction , 134 Conn.App. 801, 816-17, 40 A.3d 796, cert. denied, 304 Conn. 932, 43 A.3d 660 (2012). Here, Beck testified at the habeas trial that the petitioner's theory of defense was fabrication. He explained that the defense was focused on the victim's recantations and her admissions that she had made up some of her allegations against the petitioner. The record of the habeas trial reveals that in preparation for the petitioner's criminal trial, Beck, in fact, did consult an expert, Luck, a gynecologist with thirty-five years experience, including experience with child sexual assault cases. Beck testified at the habeas trial that, after reviewing Kavle's report, Luck confirmed Kavle's findings that the medical evidence demonstrated that there was blunt force trauma to the victim's hymen. Thus, after having consulted with Luck, and after having received Luck's confirmation of Kavle's finding, Beck then made a reasonable strategic decision not to present Luck's testimony at trial or to seek another opinion. Instead, he strategized that the best course of action was for the defense to focus on the victim's inconsistent statements and her recantations, rather than run the risk of bolstering the state's case with further damning evidence of injury to the victim's hymen. The fact that the petitioner later was able to present testimony at his habeas trial from Canter, a different expert, perhaps more specialized than Luck, who disagreed with the conclusions of both Kavle and Luck, did not establish that counsel's performance was deficient for relying on Luck's expert opinion in preparation for the petitioner's criminal trial. See Hinton v. Alabama , -U.S. -, 134 S.Ct. 1081, 1089, 188 L.Ed.2d 1 (2014) (although concluding that counsel's performance was deficient for failing to understand the resources available to the defense, United States Supreme Court clarified that "the inadequate assistance of counsel we find in this case does not consist of the hiring of an expert who, though qualified, was not qualified enough . [and specifying that] [w]e do not today launch federal courts into examination of the relative qualifications of experts hired and experts that might have been hired" [citation omitted] ). Indeed, although the petitioner has argued that Canter was a better or more specialized expert, the petitioner has failed to demonstrate that Luck, a gynecologist with experience in child sexual assault cases, was not qualified to render an appropriate medical opinion concerning any gynecological injury to the victim possibly caused by sexual assault. Accordingly, on the basis of the record before us, we conclude that the petitioner has failed to demonstrate that counsel's performance at the petitioner's criminal trial was deficient. The petitioner simply has not shown that Beck's performance, wherein he consulted with and relied on the expert opinion of a medical professional with experience in this field, was not reasonably competent, or fell outside the range of competence displayed by lawyers with ordinary training and skill in the criminal law. Having so concluded, we need not examine whether any alleged deficiency was prejudicial. See Hilton v. Commissioner of Correction , 161 Conn.App. 58, 81, 127 A.3d 1011 (2015) (because both prongs of Strickland must be demonstrated for petitioner to prevail on ineffective assistance of counsel claim, failure to prove either prong is fatal), cert. denied, 320 Conn. 921, 132 A.3d 1095 (2016). The judgment is affirmed. In this opinion the other judges concurred. The victim testified at the petitioner's criminal trial. Additionally, videotapes of her two forensic interviews were played for the jury and admitted into evidence during the petitioner's criminal trial. Stedman's Medical Dictionary (28th Ed. 2006), p. 413, defines a "colposcope" as an "[e]ndoscopic instrument that magnifies cells of the vagina and cervix in vivo to allow direct observation and study of these tissues." A video of the colposcopic examination was played for the jury, and Kavle explained his finding, in part, using the video. The habeas court specifically found that there was no competent evidence adduced at the habeas trial that Luck was underqualified to render a medical opinion upon which counsel reasonably could rely. After reviewing the record, we agree with this assessment.

12489682

NAUGATUCK VALLEY SAVINGS AND LOAN v. HANDSOME, INC., et al.

Naugatuck Valley Sav. & Loan v. Handsome, Inc.

2017-06-06

No. 38601

1132

1132

160 A.3d 1132

160

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-09-08T21:16:17.237805+00:00

Fastcase

NAUGATUCK VALLEY SAVINGS AND LOAN v. HANDSOME, INC., et al.

NAUGATUCK VALLEY SAVINGS AND LOAN v. HANDSOME, INC., et al. No. 38601 Appellate Court of Connecticut. Argued May 15, 2017 Officially released June 6, 2017

45

261

Per Curiam. The judgment is affirmed and the case is remanded for the purpose of setting a new sale date.

566558

State of Connecticut v. Monica Golding

State v. Golding

1989-12-19

13508

233

243

213 Conn. 233

213

Connecticut Reports

Connecticut Supreme Court

Connecticut

2021-09-21T20:02:18.861595+00:00

Harvard

State of Connecticut v. Monica Golding

State of Connecticut v. Monica Golding (13508) Peters, C. J., Healey, Callahan, Glass, Covello, Hull and Santaniello, Js. Argued May 4 and October 3 decision released December 19, 1989 Joseph G. Bruckmann, assistant public defender, with whom, on the brief, was Michael Lefebvre, law student intern, for the appellant (defendant). Steven M. Sellers, assistant state’s attorney, and Mary H. Lesser, deputy assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and Alan Reisner, assistant state’s attorney, for the appellee (state).

3182

19030

Callahan, J. The defendant was charged in a four count information with larceny in the second degree in violation of General Statutes § 53a-123 (a) (4), conspiracy to commit larceny in the second degree in violation of General Statutes § 53a-123 and 53a-48, general assistance fraud in violation of General Statutes § 17-282, and conspiracy to commit general assist- anee fraud in violation of General Statutes § 17-282 and 53a-48. At the close of the state's case the trial court dismissed both counts of conspiracy. The defendant was thereafter convicted by a jury of larceny in the second degree and of general assistance fraud. The trial court sentenced the defendant to concurrent suspended sentences on both counts, placed her on probation on both counts and ordered as conditions of probation that the defendant make restitution of the sum of $877.90 and perform two hundred hours of community service. The defendant, thereafter, appealed on several grounds to the Appellate Court; that court upheld the trial court's judgment. State v. Golding, 14 Conn. App. 272, 541 A.2d 509 (1988). The defendant then requested certification to this court. We granted certification limited to the questions of whether the Appellate Court had erred in refusing to reverse the defendant's conviction of general assistance fraud because of the lack of an instruction by the trial court concerning the amount involved in the fraud and whether the Appellate Court had erred by refusing to review the defendant's claim that under the federal and state constitutions the amount involved in the fraud was an essential element of the offense and was therefore required to be charged by the trial court. The claim of the lack of a jury instruction regarding the amount of the fraud was not raised at trial. The defendant therefore sought review in the Appellate Court and seeks review in this court under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). We initially heard arguments in this case in May, 1989. Thereafter, sua sponte, we requested further briefing and argument as to whether we should revise the standards set out in State v. Evans, supra, for appellate review of constitutional claims not distinctly raised at trial. We now reverse the Appellate Court on the merits and in this opinion adhere to Evans. I Prior to July 1,1984, the maximum penalty for general assistance fraud was a fine of $1000, imprisonment for one year, or both. General Statutes (Rev. to 1983) § 17-282. The penalty in the statute bore no relation to the amount fraudulently obtained. Effective July 1, 1984, however, the statute was amended by No. 84-471 of the 1984 Public Acts, to subject a person convicted of general assistance fraud to the penalties for larceny under General Statutes § 53a-122 through 53a-125b. Those statutes grade the degree of the crime and the consequent severity of the penalties according to the amount obtained as a result of the defendant's illegal conduct. Those grades range from larceny in the first degree, a class B felony carrying a maximum possible penalty of twenty years imprisonment and a $10,000 fine, to larceny in the sixth degree, a class C mis demeanor carrying a maximum possible penalty of three months imprisonment and a fine of $250. The trial court in its charge, however, failed to inform the jury that it must find proven, beyond a reasonable doubt, the amount the defendant obtained by fraud. See In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). The trial court further did not request the jury to make a specific finding as to that amount. Under the circumstances revealed by the evidence, however, the jury could have determined that the defendant obtained varied amounts depending upon the conduct of the defendant the jury found proven to have been fraudulent. The first question to be addressed, therefore, is whether the amount obtained by the defendant is an essential element of the crime of general assistance fraud. The overwhelming weight of authority is that the value of property stolen or obtained by fraud is an essential element of the crime when the value is used to differentiate between a felony and a misdemeanor or to determine the severity of the offense and the consequent punishment for a convicted offender. State v. Scielzo, 190 Conn. 191, 199-200, 460 A.2d 951 (1983); State v. Baker, 182 Conn. 52, 62, 437 A.2d 843 (1980); Negron v. State, 306 So. 2d 104, 108 (Fla. 1974); People v. Stark, 59 Ill. App. 3d 676, 681-82, 375 N.E.2d 826 (1978); State v. Dilworth, 358 So. 2d 1254, 1256 (La. 1978); State in Interest of Batiste, 359 So. 2d 1077, 1078 (La. App. 1978); People v. Johnson, 133 Mich. App. 150, 153, 348 N.W.2d 716 (1984); People v. Fuzi, 46 Mich. App. 204, 209, 208 N.W.2d 47 (1973); Sanders v. State, 664 S.W.2d 705, 709 (Tex. Crim. App. 1982); Standley v. State, 517 S.W.2d 538, 541 (Tex. Crim. App. 1975); 50 Am. Jur. 2d, Larceny § 159. We conclude therefore that under the present statutory scheme embodied in § 17-282 for determining the degree of the offense and the severity of the permissible punishment the amount obtained by general assistance fraud is an essential element of that crime. Because the amount the defendant obtained by fraud is an essential element of the crime under the applicable statutory scheme, the trial court was obligated to instruct the jury concerning it. State v. Williamson, 206 Conn. 685, 708, 539 A.2d 561 (1988); State v. Harman, 198 Conn. 124, 133-34, 502 A.2d 381 (1985); State v. Mason, 186 Conn. 574, 585, 442 A.2d 1335 (1982); State v. Sumner, 178 Conn. 163, 170, 422 A.2d 299 (1979). Failure to do so was constitutional error; State v. Williamson, supra; and requires reversal because the jury reached its decision without any instruction on, or consideration of, an essential element of the crime charged. Screws v. United States, 325 U.S. 91, 107, 65 S. Ct. 1031, 89 L. Ed. 1495 (1945); State v. Harman, supra, 134; State v. Kurvin, 186 Conn. 555, 561, 442 A.2d 1327 (1982); State v. Sunday, 187 Mont. 292, 299-300, 609 P.2d 1188 (1980). II Further, the Appellate Court erred by refusing to review the defendant's claim since she proffered a constitutional claim and the record was clearly adequate to review that claim. State v. Hill, 201 Conn. 505, 512-13, 523 A.2d 1252 (1986); State v. Kurvin, supra, 558. We have for many years held that claims not raised in the trial court "can and will be considered" on appeal in two "exceptional circumstances." State v. Evans, supra, 70. One of those circumstances "may arise where the record adequately supports a claim that a litigant has clearly been deprived of a fundamental constitutional right and a fair trial." (Emphasis added.) Id. The state urges us to revise the Evans standard of review for errors not preserved at trial because the words used by the standard though easily said lend themselves to inconsistent application. We have reviewed our own cases and those of the Appellate Court, and we agree with the state that they demonstrate disparate approaches to the Evans criteria. Upon reflection, we have decided neither to adopt a pure plain error standard for alleged constitutional violations, nor to attempt to reconcile past Evans decisions. Instead, we articulate guidelines designed to facilitate a less burdensome, more uniform application of the present Evans standard in future cases involving alleged constitutional violations that are raised for the first time on appeal. Relying on the methodology of State v. Whistnant, 179 Conn. 576, 427 A.2d 414 (1980), we hold that 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 clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant's claim will fail. The appellate tribunal is free, therefore, to respond to the defendant's claim by focusing on whichever condition is most relevant in the particular circumstances. The defendant bears the responsibility for providing a record that is adequate for review of his claim of constitutional error. If the facts revealed by the record are insufficient, unclear or ambiguous as to whether a constitutional violation has occurred, we will not attempt to supplement or reconstruct the record, or to make factual determinations, in order to decide the defendant's claim. State v. Anderson, 209 Conn. 622, 632-33, 553 A.2d 589 (1989); State v. Wilson, 199 Conn. 417, 438, 513 A.2d 620 (1986); State v. Tyler-Barcomb, 197 Conn. 666, 675-76, 500 A.2d 1324 (1985), cert. denied, 475 U.S. 1109, 106 S. Ct. 1518, 89 L. Ed. 2d 916 (1986); State v. Thompson, 197 Conn. 67, 76 n.7, 495 A.2d 1054 (1985); State v. Conroy, 194 Conn. 623, 627 n.5, 484 A.2d 448 (1984); State v. Baker, supra, 56-57; State v. Evans, supra, 70-71. The defendant also bears the responsibility of demonstrating that his claim is indeed a violation of a fundamental constitutional right. Patently nonconstitutional claims that are unpreserved at trial do not warrant special consideration simply because they bear a constitutional label. State v. Vilalastra, 207 Conn. 35, 46, 540 A.2d 42 (1988); State v. Douglas, 203 Conn. 445, 455, 525 A.2d 101 (1987); State v. Mullings, 202 Conn. 1, 15, 519 A.2d 58 (1987); State v. McIntosh, 199 Conn. 155, 162, 506 A.2d 104 (1986); State v. Vitale, 197 Conn. 396, 403, 497 A.2d 956 (1985); State v. Gooch, 186 Conn. 17, 18, 438 A.2d 867 (1982). For example, once identified, unpreserved evidentiary claims masquerading as constitutional claims will be summarily dismissed. State v. Smith, 209 Conn. 423, 425-26, 551 A.2d 742 (1988); State v. Mullings, supra, 15; State v. Tyler-Barcomb, supra, 674; State v. George, 194 Conn. 361, 371-72, 481 A.2d 1068 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 963, 83 L. Ed. 2d 968 (1985). Finally, if we are persuaded that the merits of the defendant's claim should be addressed, we will review it and arrive at a conclusion as to whether the alleged constitutional violation clearly exists and whether it clearly deprived the defendant of a fair trial. State v. Torrence, 196 Conn. 430, 435, 493 A.2d 865 (1985); State v. Evans, supra, 71-73. In the present case, for example, it was clear constitutional error for the trial court to fail to instruct the jury concerning an essential element of the crime with which the defendant was charged, and the defendant was therefore clearly deprived of a fair trial. In many cases of an alleged constitutional violation, however, the state is able to demonstrate the harmlessness of such alleged violation beyond a reasonable doubt. See United States v. Hasting, 461 U.S. 499, 507-509, 103 S. Ct. 1974, 76 L. Ed. 2d 96 (1983), on remand, 739 F.2d 1269 (7th Cir. 1984), cert. denied, 469 U.S. 1218, 105 S. Ct. 1199, 84 L. Ed. 2d 343 (1985); Chapman v. California, 386 U.S. 18, 22, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied, 386 U.S. 987, 87 S. Ct. 1283, 18 L. Ed. 2d 241 (1967); State v. Morrill, 197 Conn. 507, 539, 498 A.2d 76 (1985); State v. Castonguay, 194 Conn. 416, 434-35, 481 A.2d 56 (1984); Williams v. Salamone, 192 Conn. 116, 120, 470 A.2d 694 (1984); State v. Washington, 182 Conn. 419, 429, 438 A.2d 1144 (1980); Aillon v. State, 168 Conn. 541, 547-48, 363 A.2d 49 (1975). Under such circumstances, it would be a waste of judicial resources, and a pedantic exercise, to delve deeply into the constitutional merits of a claim that can appropriately be resolved in accordance with the relevant harmless error analysis. For example, in a case where, on the whole record, there is overwhelming evidence of guilt and a constitutional claim is raised under Evans concerning the admission of inconsequential tangible evidence that was allegedly illegally seized, there is no reason that we cannot assume the constitutional violation and first address the fair trial issue and, if the alleged violation is harmless beyond a reasonable doubt, not engage in an in-depth discussion of the substantive constitutional claim. Such an approach would be in keeping with the spirit of what the United States Supreme Court said in United States v. Hasting, supra, 509: "Since [Chapman v. California, supra,] the Court has consistently made clear that it is the duty of a reviewing court to consider the trial record as a whole and to ignore errors that are harmless, including most constitutional violations, see, e.g., [Brown v. United States, 411 U.S. 223, 230-32, 93 S. Ct. 1565, 36 L. Ed. 2d 208 (1973)]; Harrington v. California, 395 U.S. 250, [89 S. Ct. 1726, 23 L. Ed. 2d 284] (1969); Milton v. Wainwright, 407 U.S. 371, [92 S. Ct. 2174, 33 L. Ed. 2d 1] (1972). The goal . . . is'to conserve judicial resources by enabling appellate courts to cleanse the judicial process of prejudicial error without becoming mired in harmless error.' " The decision of the Appellate Court is reversed and a new trial is ordered for the count of the information charging the defendant wdth general assistance fraud in violation of § 17-282 only. The defendant's convic tion of larceny in the second degree in violation of § 53a-123 (a) (4) and the sentence and conditions imposed thereon remain in effect. In this opinion Peters, C. J., Healey, Glass, Hull and Santaniello, Js., concurred. Covello, J., concurred in the result. General Statutes § 53a-123 (a) (4) provides: "larceny in the second degree: class c felony, (a) A person is guilty of larceny in the second degree when he commits larceny as defined in section 53a-119 and . . . (4) the property is obtained by defrauding a public community, and the value of such property is two thousand dollars or less." "[General Statutes] Sec. 17-282. general assistance fraud, penalty. FORFEITURE OF PRIVILEGES OF PARTICIPATION IN PROGRAM. TERMINATION upon conviction, readmission, (a) No vendor of goods or services sold to or performed for any beneficiary of assistance under this part shall, with intent to defraud, present for payment any false claim for goods or services performed, or accept payment for goods or services performed, which exceeds the amounts due for goods or services performed. "(b) Any person or vendor who defrauds or assists in defrauding any town as to the support of its paupers, or deceives the selectmen thereof in obtaining support for any person not entitled to the same, or is found in violation of subsection (a) of this section, shall be subject to the penalties for larceny under sections 53a-122 to 53a-125b, inclusive, depending on the amount involved. In addition, any such person or vendor shall be subject to forfeiture of privileges of participation in the program provided under this part after a hearing held by the town according to procedures established by such town. Any person or vendor who is convicted of violating this section shall be terminated from participation in such program, effective upon conviction. No vendor so terminated shall be readmitted to such program for at least three years from the date of termination." See footnote 6, infra. The questions certified read as follows: "Where, in a prosecution for general assistance fraud (Section 17-282) the jury was never instructed concerning a finding of 'the amount involved,' did the Appellate Court err in refusing to reverse the defendant's conviction on the ground of the lack of such an instruction and did it err in refusing to review the defendant's claim that under the United States and Connecticut constitutions 'the amount involved,' is necessarily an essential element of the offense since it determines whether the offense is a misdemeanor or a crime as serious as a class B felony?" The defendant claimed that the lack of a jury instruction concerning the amount obtained by fraud deprived her of her right to a jury trial on all the essential elements of the crime charged under the sixth and fourteenth amendments to the United States constitution and article first, § 8 of the Connecticut constitution. The right to a trial by jury is a "fundamen tal" right protected from state action by the due process clause of the fourteenth amendment. Duncan v. Louisiana, 391 U.S. 145, 148-49, 88 S. Ct. 1444, 20 L. Ed. 2d 491, reh. denied, 392 U.S. 947, 88 S. Ct. 2270, 20 L. Ed. 2d 1412 (1968). Certification was not granted on any questions concerning the defendant's conviction of larceny in the second degree in violation of General Statutes § 53a-123 (a) (4). Although No. 84-471 of the 1984 Public Acts was not effective until July 1,1984, and some of the defendant's fraudulent conduct occurred prior to that date, apparently the trial court and certainly the parties and the Appellate Court treated the defendant's sentence as having been imposed under the amended statute. See State v. Allen, 12 Conn. App. 403, 406, 530 A.2d 670, cert. denied, 205 Conn. 809, 532 A.2d 76 (1987). The Appellate Court applied its Thurman test for Evans review and under the second prerequisite of that test found that the amount obtained by fraud was not an essential element of the crime. It, therefore, concluded that the trial court's failure to charge the jury concerning it was not constitutional error reviewable under Evans. See State v. Thurman, 10 Conn. App. 302, 306-307, 523 A.2d 891, cert. denied, 204 Conn. 805, 528 A.2d 1152 (1987). The other exceptional circumstance is "where a new constitutional right not readily foreseeable has arisen between the time of trial and appeal." State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). That circumstance is not at issue in this case. A review of our cases reveals that the words "adequately supports" in State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), may be translated to read "is adequate to review." See, e.g., State v. Mercer, 208 Conn. 52, 57, 544 A.2d 611 (1988); State v. Torrence, 196 Conn. 430, 435, 493 A.2d 865 (1985). An adequate factual record is especially crucial when dealing with a claim that was not preserved at trial, since consideration is being sought for review of a claim for which we lack a trial court ruling.

1952604

Pandolphe's Auto Parts, Inc. v. Town of Manchester

Pandolphe's Auto Parts, Inc. v. Town of Manchester

1980-06-17

217

225

181 Conn. 217

181

Connecticut Reports

Connecticut Supreme Court

Connecticut

2021-09-21T20:02:18.861595+00:00

Harvard

Pandolphe’s Auto Parts, Inc. v. Town of Manchester

Pandolphe’s Auto Parts, Inc. v. Town of Manchester Loiselle, Bogdanski, Peters, Healey and Daly, Js. Argued March 4 decision released June 17, 1980 Mark S. Shipman, with whom, on the brief, was Mark J. Kolovson, for the appellant (plaintiff). Arnold Sbarge, with whom, on the brief, was A. Paul Spinella, for the appellee (defendant).

2258

13441

Arthur H. Healey, J. Pursuant to General Statutes § 8-129, on March 14, 1978, the defendant town of Manchester took certain property of the plaintiff, Pandolphe's Auto Parts, Inc. (hereinafter Pandolphe) by eminent domain and assessed damages at $373,000. Thereafter, Pandolphe, pursuant to General Statutes § 8-132, appealed this award to the Superior Court. The chief court administrator referred the case to three state referees: Hon. Charles 8. House, Hon. Howard W. Alcorn, and Hon. Louis Shapiro, who exercised the powers of the Superior Court. See General Statutes § 52-434, 52-434a (b). A trial was held before this panel of referees, after which judgment was rendered in favor of the plaintiff for $375,000 damages and $2500 appraisal fees. The plaintiff has appealed from that judgment. The property taken consisted of seventy-five acres zoned for industrial use with about 1046 foot frontage on the Tolland Turnpike. It was vacant, unimproved, partly open and partly wooded. The prop erty was of irregular topography, required substantial grading for development purposes, and was not served by water or sewers. The plaintiff purchased the property in 1976 in two parcels for a total price of $360,000. The property was purchased for use as an automobile junkyard, but a subsequent change in the zoning regulations made such a use impermissible. At the hearing before the panel, two appraisers submitted reports and testified on behalf of the plaintiff. One testified that his opinion of value at the time of the taking was $811,000, while the other stated that his opinion of such value was $1,000,000. In its memorandum of decision, the court stated that it accorded little weight to these opinions. The defendant's appraiser set the value of the property on the date of taking at $375,000. Apparently, the court relied heavily upon the testimony and report of the defendant's appraiser in arriving at its award of damages. On appeal, the plaintiff pursues essentially one claim: the trial court erred in its reliance upon the testimony and appraisal of the defendant's expert, Peter Marsele. Incidental to this claim, the plaintiff questions the standard and scope of judicial review in this court. I We consider first the standard and scope of review employed by this court. The plaintiff claims that, because the majority of the evidence before the trial court was documentary in nature and took the form of appraisal reports and the remainder of the evidence was testimony of the appraisers explaining those reports, the "clearly erroneous" standard of Practice Book, 1978, § 3060D is inapplicable and that this court may embark upon an independent examination of the record to arrive at an independent result. By this argument, the defendant seeks, in effect, a trial de novo. The plaintiff misconceives the function of this court. The trial court was presented with conflicting evidence and it is apparent that credibility was a crucial factor. "We cannot retry the facts or pass upon the credibility of the witnesses." Johnson v. Flammia, 169 Conn. 491, 497, 363 A.2d 1048 (1975); see Birnbaum v. Ives, 163 Conn. 12, 21, 301 A.2d 262 (1972). Moreover, the trial court examined the property involved in this condemnation. "We have consistently held that the visual observations made by the trier on a visit to the property are as much evidence as the evidence presented for his consideration by the witnesses under oath." Houston v. Highway Commissioner, 152 Conn. 557, 558, 210 A.2d 176 (1965); see D'Addario v. Commissioner of Transportation, 180 Conn. 355, 366, 429 A.2d 890 (1980); Birnbaum v. Ives, supra, 20; Gentile v. Ives, 159 Conn. 443, 452, 270 A.2d 680 (1970), cert. denied, 400 U.S. 1008, 91 S. Ct. 566, 27 L. Ed. 2d 621 (1971); 30 C.J.S., Eminent Domain § 298. In determining the value of the property taken, the trier arrives at its own conclusions by weighing the opinions of the appraisers, the claims of the parties, and its own general knowledge of the elements going to establish value, and then employs the most appropriate method to determine the damages that result from the taking. Laurel, Inc. v. Commissioner of Transportation, 180 Conn. 11, 37-38, 428 A.2d 789 (1980); Greenfield Development Co. v. Wood, 172 Conn. 446, 451, 374 A.2d 1084 (1977); Esposito v. Commissioner of Transportation, 167 Conn. 439, 441, 356 A.2d 175 (1974); Slavitt v. Ives, 163 Conn. 198, 209, 303 A.2d 13 (1972); Schnier v. Ives, 162 Conn. 171, 177-78, 293 A.2d 1 (1972). It is clear that "the trial court has the right to accept so much of the testimony of the experts and the recognized appraisal methods which they employed as he finds applicable ; his determination is reviewable only if he misapplies, overlooks, or gives a wrong or improper effect to any test or consideration which it was his duty to regard." Greenfield Development Co. v. Wood, supra; see Stanley Works v. New Britan Redevelopment Agency, 155 Conn. 86, 99, 230 A.2d 9 (1967); Bennett v. New Haven Redevelopment Agency, 148 Conn. 513, 516,172 A.2d 612 (1961). On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous. See Practice Book, 1978, § 3060D. 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 plead ings in the whole record, those facts are clearly erroneous. That is the standard and scope of this court's judicial review of decisions of the trial court. Beyond that, we will not go. II We turn now to the plaintiff's single claim of error on appeal. At the outset of our consideration of this claim, we point out that the plaintiff's review in its brief of the evidence it presented to the trial court, undertaken to demonstrate the reliability of that evidence, does not avail it on appeal. We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. Bather, we focus on the conclusion of the trial court, as well as the method by which it arrived at that conclusion, to determine whether it is legally correct and factually supported. The plaintiff attacks the testimony and report of the defendant's expert in several respects. He claims that Marsele improperly relied upon the June, 1976 sale of the subject property to the plaintiff for $360,000 because that sale price did not accurately reflect the property's then fair market value. The claim is made that the purchase price was depressed because of the seller's "desperate need of cash." As the defendant points out, however, there was ample evidence, including testimony from one of the plaintiff's own appraisers, that the 1976 sale of the property was an ordinary arm's length transaction. As such, the price the plaintiff paid for the property in 1976, less than two years prior to the date of taking, was "one of the most important pieces of evidence in determining its present value." 4 Nichols, Eminent Domain (3d Ed.) § 12.311 [11]; see Schnier v. Ives, 162 Conn. 171, 177, 293 A.2d 1 (1972); annot., 55 A.L.R.2d 791. Whether the earlier sale of the property taken is sufficiently close in point of time to afford a fair comparison is a matter resting largely in the discretion of the trier. See Schnier v. Ives, supra, 179. Whatever the outer limit of that discretion might be in any given case, it certainly was not exceeded here. The plaintiff goes on to claim that, even if the 1976 sale of the property reflected its true fair market value, the trial court's failure to consider the impact that the rate of inflation had on the value of the property since 1976 was error. There is nothing in the trial court's memorandum of decision that indicates that the court failed to consider the impact of inflation on the value of the subject prop erty. Indeed, the award, exclusive of appraisal fees, was $15,000 in excess of the 1976 purchase price of $360,000. Moreover, Marsele did not state in his report or testify that the rate of inflation during the period from the 1976 purchase to the 1978 taking had no impact on the property's value. He testified that the property had not significantly appreciated in value during that period and that there was absolutely no construction in the area and no activity in "the marketplace that would support an increase or change in value for time." While it is true that the declining purchasing power of the dollar affects the fair market value of real property in this country, it is hardly the only factor that affects value. There was ample evidence that the real property involved in this appeal did not significantly appreciate in value in the period between its purchase by the plaintiff and the taking by the defendant. It is evident, however, that, although the plaintiff had not improved the property in any way since it purchased it in 1976, the trial court, by its award, recognized some appreciation in value. Further, the plaintiff claims that the sale of certain adjacent property, employed as part of Mar-sele's appraisal, could not be used to ascertain the value of the subject property because of the difference in accessibility of the two properties. The record demonstrates, however, that Marsele adjusted his appraisal on the basis of this sale so as to compensate for any differences between the two properties. Finally, the plaintiff claims that Marsele incorrectly testified that there was no industrial activity or interest expressed in this area between the years 1972 and 1978, the year of the taking, and that the trial court erroneously relied upon this testimony. The record discloses that the trial court was apprised, by evidence presented by both the plaintiff and the defendant, of any industrial activity in the area, including the distance between any such activity and the subject property. There is no indication that this evidence was not considered by the trier. There is no error. In this opinion Loiselle, Peters and Daly, Js., concurred. Bogdanski, J., dissented. The taking was by the town of Manchester acting through its Economic Development Commission. Between the time the plaintiff purchased the property and the time the zoning regulations no longer made it permissible to obtain a special exception for an automobile junkyard, the plaintiff never sought such a special exception. In fact, however, there was evidence at the trial other than the reports and testimony of the three appraisers. Practice Book, 1978, § 3060D provides: "The supreme court may reverse or modify the decision of the trial court if it determines that the decision is clearly erroneous in view of the evidence and pleadings in the whole record. "If the supreme court deems it necessary to the proper disposition of the cause, it may remand the case for a further articulation of the basis of the trial court's decision." We point out in this regard that although the finding has been abolished, a party may still attack the factual basis of the court's decision as reciting facts unsupported by the evidence and as failing to include other material facts that are admitted and undisputed by the parties. Moreover, when a party seeks a further articulation of the factual basis of the trial court's decision or the inclusion in the memorandum of decision of the trial court's rulings on claims of law properly presented, he should file a motion with the trial court under Practice Book, 1978, § 3082 setting forth the specific factual issues he seeks to have resolved and the claims of law he seeks to have included. One oí the plaintiff's appraisers testified that as far as lie knew the 397(5 sale to the plaintiff was "a normal arm's length voluntary sale." An examination of the record discloses, however, that while the plaintiff has referred to a governmental publication in his brief which might form the basis of a court's decision to take judicial notice of the specific rate of inflation for the period in question, the plaintiff presented no such evidence to the trial court and made no request of the court to take judicial notice of any particular rate of inflation during this period. See Goodhall v. Cox, 129 Conn. 79, 83, 2(5 A.2d 551 (1942) ; Holden & Daly, Connecticut Evidence (1966) § 23. We note that the plaintiff did not improve the subject property between the time of its purchase and the time of the taking. The plaintiff also claims that the 1972 sale of this property, which adjoined the subject property and was also zoned for industrial use, was too remote in time to be considered useful in determining the value of the plaintiff's property. As we stated above, however, this matter rests in the discretion of the trier; Schnier v. Ives, 162 Conn. 171, 179, 293 A.2d 1 (1972) ; which was not here abused.

763418

Floyd Simms v. Warden, State Prison

Simms v. Warden, State Prison

1994-08-09

14924

608

622

230 Conn. 608

230

Connecticut Reports

Connecticut Supreme Court

Connecticut

2021-09-21T20:02:18.861595+00:00

Harvard

Floyd Simms v. Warden, State Prison

Floyd Simms v. Warden, State Prison (14924) Peters, C. J., Callahan, Borden, Berdon and Lavery, Js. Argued June 1 decision released August 9, 1994 Meryl Anne Spat, with whom was Louis S. Avitabile, special public defender, for the appellant (petitioner). Carolyn K. Longstreth, assistant state’s attorney, with whom were Jacqueline J. Footman, assistant state’s attorney, and, on the brief, Patricia A. Swords, state’s attorney, for the appellee (respondent).

4364

26279

Peters, C. J. The dispositive issue in this appeal from the trial court's denial of a writ of habeas corpus is whether the habeas court abused its discretion by denying the petitioner's request for certification to appeal. Earlier this year, in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994) (Simms I), we held that an appeal', rather than a writ of error, is the proper procedure for appellate review of the denial of a request for certification to appeal the denial of a writ of habeas corpus. Invoking our appellate jurisdiction under General Statutes § 52-265a, we thereafter permitted a belated appeal to allow the petitioner, Floyd Simms, to present his argument that the habeas court had improperly denied his request for certification. We affirm the judgment of the habeas court. The procedural history of this case is recounted in Simms I, supra, 229 Conn. 179. The petitioner filed an amended petition for a writ of habeas corpus to challenge the legality of his detention by the defendant, the warden of the Connecticut correctional institution at Somers (state). His detention results from his 1983 conviction of accessory to assault of a person sixty years of age or older in the first degree pursuant to General Statutes § 53a-59 (a) (3), 53a-59a and 53a-8, and of robbery in the second degree pursuant to General Statutes § 53a-135 (a) (1). We affirmed his conviction on direct appeal. State v. Simms, 211 Conn. 1, 557 A.2d 914, cert. denied, 493 U.S. 843, 110 S. Ct. 133, 107 L. Ed. 2d 93 (1989). In his petition for a writ of habeas corpus, the petitioner alleges that his conviction should be set aside, or that he should be resentenced, on one of three grounds: (1) ineffective assistance of trial counsel; (2) ineffective assistance of appellate counsel; and (3) violation of his rights to due process under the federal and state constitutions. Each of the counts in the petition is premised on the petitioner's underlying contention that the trial judge, Corrigan,should have recused himself from presiding at the petitioner's jury trial. The petitioner contends that recusal was necessary largely because Judge Corrigan had presided over a previous jury trial that had resulted in the petitioner's conviction of the crime of felony murder and, at the sentencing for that crime, had commented on the petitioner's lack of credibility. Simms I, supra, 229 Conn. 179 n.3. The habeas court resolved all three counts of the habeas petition against the petitioner. At the outset of the evidentiary hearing, the habeas court dismissed the third count, in which the petitioner claimed that the trial judge's failure to recuse himself from presiding over the petitioner's criminal trial had deprived the petitioner of his constitutional right to due process. The habeas court dismissed this count because it contained no allegations that might excuse the petitioner's failure to raise this issue in his direct appeal. After the conclusion of the evidentiary hearing and the filing of briefs, the habeas court denied, on their merits, the remaining counts alleging ineffective assistance of trial and appellate counsel. The habeas court also denied the petitioner's subsequent request, pursuant to General Statutes § 52-470 (b), for certification to appeal. The petitioner has appealed from the trial court's denial of certification and its adverse disposition on each of the counts of his petition. In Simms I, in directing a habeas corpus petitioner to pursue an appeal rather than a writ of error in order to challenge an adverse judgment of the habeas court, we suggested that such an appeal requires the petitioner to make a two part showing. 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. Abuse of discretion is the proper standard because that is the standard to which we have held other litigants whose rights to appeal the legislature has conditioned upon the obtaining of the trial court's permission. State v. Bergin, 214 Conn. 657, 660-61, 574 A.2d 164 (1990); State v. S & R Sanitation Services, Inc., 202 Conn. 300, 311, 521 A.2d 1017 (1987); State v. Avcollie, 174 Conn. 100, 110-11, 384 A.2d 315 (1977). If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits. Simms I, supra, 229 Conn. 186-87. We adopt this two part test as our holding in this case and conclude that the habeas court did not abuse its discretion in denying the petitioner's request for certification to appeal. I Before we undertake a review of the petitioner's appeal to determine whether he has met his threshold burden of demonstrating an abuse of discretion in the denial of his certification to appeal, we must clarify two antecedent procedural issues. The first is a question of characterization: in a habeas corpus case, does a decision on the issue of abuse of discretion implicate the jurisdiction of the appellate tribunal? The second is a question of standards: in a habeas corpus case, is a decision on the issue of abuse of discretion governed by articulable criteria, and, if so, what should these criteria be? A The grant of a qualified right to appeal in § 52-470 (b) is the source of the jurisdictional issue that we must decide. That subsection provides: "No appeal from the judgment rendered in a habeas corpus proceeding brought in order to obtain his release by or in behalf of one who has been convicted of crime may be taken unless the appellant, within ten days after the case is decided, petitions the judge before whom the case was tried or a judge of the supreme court or appellate court to certify that a question is involved in the decision which ought to be reviewed by the court having jurisdiction and the judge so certifies." The question raised by § 52-470 (b) is whether the language before "[n]o appeal . . . may be taken" was intended by the legislature as a limitation on the jurisdiction of the appellate tribunal or as a limitation on the scope of the review by the appellate tribunal. In Simms I, supra, 229 Conn. 187-89, we assumed that § 52-470 (b) imposed jurisdictional constraints upon an appellate tribunal because we have so held in cases interpreting General Statutes § 54-96, which authorizes the state, with the permission of the trial court, to appeal questions of law in criminal cases. In appeals arising under the latter statute, a denial of permission to the state to appeal, if that denial is not an abuse of discretion, deprives the appellate tribunal of subject matter jurisdiction. State v. Bergin, supra, 214 Conn. 660-63; State v. S & R Sanitation Services, Inc., supra, 202 Conn. 313; State v. Audet, 170 Conn. 337, 340, 365 A.2d 1082 (1976). Under § 54-96, we have held permission to appeal to be jurisdictional because, at common law, the state had no right to appeal in criminal cases. State v. Falzone, 171 Conn. 417, 417-18, 370 A.2d 988 (1976); State v. Audet, supra, 340-42; State v. Brown, 16 Conn. 54, 58-59 (1843). It is plausible to draw an analogy from § 54-96 to § 52-470 (b) because, as we explained in Carpenter v. Meachum, 229 Conn. 193, 200, 640 A.2d 591 (1994), at common law, a petitioner had no right to appeal the denial of a writ of habeas corpus. Our decision in Carpenter would presumably permit the legislature to impose conditions on appellate review that, if not met, would deprive an appellate tribunal of jurisdiction. On further reflection, however, we are persuaded that the question before us is not one of legislative power but of legislative intent. See Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 764, 628 A.2d 1303 (1993). When the legislature enacted § 54-96, it coupled the grant of authority for the state to appeal with the necessity for the state to obtain permission to appeal. By contrast, when the legislature enacted § 52-470 (b), it limited a statutory right to appeal that had existed, unconditionally, since 1882. Carpenter v. Meachum, supra, 229 Conn. 202; Iovieno v. Commissioner of Correction, 222 Conn. 254, 259-60, 608 A.2d 1174 (1992). The issue in this case, therefore, is whether the legislature, in amending § 52-470, intended to impose a jurisdictional limitation on appellate jurisdiction or intended merely to limit the scope of appellate review. In light of the significant role of the writ of habeas corpus in our jurisprudence; Gaines v. Manson, 194 Conn. 510, 516, 481 A.2d 1084 (1984); and the strong presumption in favor of appellate jurisdiction; Glastonbury Volunteer Ambulance Assn., Inc. v. Freedom of Information Commission, 227 Conn. 848, 854, 633 A.2d 305 (1993); Ambroise v. William Raveis Real Estate, Inc., supra, 765; we conclude that the legislature intended the certification requirement only to define the scope of our review and not to limit the jurisdiction of the appellate tribunal. B In Simms I, we proposed that, as a prerequisite to plenary appellate review of the merits of the dismissal of a habeas corpus petition, a petitioner who is denied a timely request for certification to appeal must demonstrate that the denial of certification was an abuse of discretion. Adhering to that construction of the substantive import of § 52-470 (b), we now consider the standards by which such a possible abuse of discretion should be measured. In cases arising under § 54-96, we have inquired, on appeal, whether the record demonstrates that the denial of permission to the state to appeal constituted a clear and extreme abuse of discretion or resulted in an apparent injustice. State v. Bergin, supra, 214 Conn. 660-61; State v. S & R Sanitation Services, Inc., supra, 202 Conn. 311; State v. Avcollie, supra, 174 Conn. 110-11. That standard is correct but requires amplification in the context of habeas corpus appeals. We may usefully incorporate, by analogy, the criteria adopted by the United States Supreme Court in Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991), in its analysis of the certificate of probable cause to appeal that is part of the federal statute governing habeas corpus. See 28 U.S.C. § 2253; see generally 2 J. Liebman, Federal Habeas Corpus Practice and Procedure (1989) § 30.4; L. Yackle, Postconviction Remedies (1981) § 160. The court held in Lozada that, in order to obtain a certificate of probable cause to appeal, a habeas petitioner must make a substantial showing that he has been denied a federal constitutional right. Lozada v. Deeds, supra, 431. A petitioner satisfies that burden by demonstrating: "that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further." (Emphasis in original; internal quotation marks omitted.) Id., 432; Barefoot v. Estelle, 463 U.S. 880, 893 n.4, 103 S. Ct. 3383, 77 L. Ed. 2d 1090 (1983). Accordingly, we hold that, in an appeal under § 52-470 (b), a petitioner will establish a clear abuse of discretion in the denial of a timely request for certification to appeal if he can demonstrate the existence of one of the Lozada criteria described above. In enacting § 52-470 (b), the legislature intended to discourage frivolous habeas appeals. Iovieno v. Commissioner of Correction, supra, 222 Conn. 259-61. A habeas appeal that satisfies one of the Lozada criteria is not frivolous. II We turn now to decide whether the petitioner has established a clear abuse of discretion in the habeas court's denial of his request for certification. We must determine whether a certifiable issue exists, by Lozada criteria, either with respect to the habeas court's dismissal of the third count of the habeas petition or with respect to the habeas court's denial of the relief requested in the first and second counts of the petition. We conclude that the habeas court's denial of certification was not an abuse of its discretion. No further appellate review was warranted with respect to the habeas court's dismissal of the petitioner's claim, in the third count of his petition, that the trial judge's failure to recuse himself because of his prior judicial contacts with the petitioner violated the petitioner's right to due process. Under well established case law, reasonable jurists could not differ that such a claim can be raised by habeas corpus only by alleging some excuse for the failure to have pursued it on direct appeal. Jackson v. Commissioner of Correction, 227 Conn. 124, 129-32, 629 A.2d 413 (1993); Morin v. Manson, 192 Conn. 576, 580, 472 A.2d 1278 (1984); Cajigas v. Warden, 179 Conn. 78, 81, 425 A.2d 571 (1979). The petition contains no such allegation. The petitioner's testimony that he asked his counsel to pursue the issue may be relevant to his claim of ineffective assistance of counsel, but it does not address the issue of deliberate bypass of the process of direct appeal or of cause and prejudice for failure to present such an issue in the direct appeal. "[Ajttorney error short of ineffective assistance of counsel does not adequately excuse compliance with our rules of appellate procedure." Jackson v. Commissioner of Correction, supra, 135-36. The habeas court likewise did not abuse its discretion in denying certification to appeal its decision that the petitioner had failed to prove ineffective assistance of trial or appellate counsel. The crux of the petitioner's claim related to his counsels' failure to pursue the petitioner's interest in the disqualification of the trial judge, either for actual bias or for having created an appearance of bias, because the trial judge had presided over another criminal trial involving the petitioner and had commented critically while sentencing him in those proceedings. Considering the record before the habeas court and the applicable legal principles; see, e.g., Liteky v. United States, U.S. , 114 S. Ct. 1147, 1155, 127 L. Ed. 2d 474 (1994); Safford v. Warden, 223 Conn. 180, 190-91, 612 A.2d 1161 (1992); we are not persuaded that the issues, as presented by the petitioner, were debatable among jurists of reason, that they could reasonably have been resolved differently, or that they raised questions deserving further appellate scrutiny. The judgment is affirmed. In this opinion Borden and Lavery, Js., concurred. General Statutes § 53a-59 provides in relevant part: "assault in the first degree: class b felony, (a) A person is guilty of assault in the first degree when . (3) under circumstances evincing an extreme indifference to human life he recklessly engages in conduct which creates a risk of death to another person, and thereby causes serious physical injury to another person . . . ." General Statutes § 53a-59a provides in relevant part: "assault of a victim SIXTY OR OLDER IN THE FIRST DEGREE: CLASS B FELONY: FIVE YEARS not suspendable. (a) A person is guilty of assault of a victim sixty or older in the first degree, when he commits assault in the first degree under . . . section 53a-59 (a) (3) and the victim of such assault has attained at least sixty years of age . "(c) Assault of a victim sixty or older in the first degree is a class B felony and any person found guilty under this section shall be sentenced to a term of imprisonment of which five years of the sentence imposed may not be suspended or reduced by the court." General Statutes § 53a-8 provides in relevant part: "criminal liability for ACTS OF another, (a) 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." General Statutes § 53a-135 provides in relevant part: "robbery in the second degree: class c felony, (a) A person is guilty of robbery in the second degree when he commits robbery as defined in section 53a-133 and (1) he is aided by another person actually present . "(b) Robbery in the second degree is a class C felony." General Statutes § 52-470 provides: "summary disposal of the case, appeal by person convicted of crime, (a) 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 therein, and inquire fully into the cause of imprisonment, and shall thereupon dispose of the case as law and justice require. "(b) No appeal from the judgment rendered in a habeas corpus proceeding brought in order to obtain his release by or in behalf of one who has been convicted of crime may be taken unless the appellant, within ten days after the case is decided, petitions the judge before whom the case was tried or a judge of the supreme court or appellate court to certify that a question is involved in the decision which ought to be reviewed by the court having jurisdiction and the judge so certifies." The United States Supreme Court has similarly concluded that the certification requirement contained in 28 U.S.C. § 2253 is not jurisdictional. Davis v. Jacobs, 454 U.S. 911, 915, 102 S. Ct. 417, 70 L. Ed. 2d 226 (1981); I. Robbins, "The Habeas Corpus Certificate of Probable Cause," 44 Ohio St. L.J. 307 (1983).