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12491690

STATE of Connecticut v. Sidney WADE

State v. Wade

2017-12-05

AC 38719

1284

1289

175 A.3d 1284

175

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:29.057506+00:00

Fastcase

STATE of Connecticut v. Sidney WADE

STATE of Connecticut v. Sidney WADE AC 38719 Appellate Court of Connecticut. Argued October 10, 2017 Officially released December 5, 2017 John C. Drapp III, assigned counsel, Bridgeport, for the appellant (defendant). Jennifer F. Miller, deputy assistant state's attorney, with whom, on the brief, were Brian Preleski, state's attorney, and Paul N. Rotiroti, supervisory assistant state's attorney, for the appellee (state). Alvord, Keller and Pellegrino, Js.

2729

17108

KELLER, J. The defendant, Sidney Wade, appeals from the judgment of the trial court denying his motion to correct an illegal sentence. The defendant claims that the court improperly concluded that his resentencing did not give rise to a double jeopardy violation. We affirm the judgment of the trial court. The following procedural history is relevant to the present claim. Following a jury trial, the defendant was convicted of two counts of sale of narcotics by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b), two counts of possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b), and one count of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3). For each of the sale of narcotics counts, the court, D'Addabbo, J. , imposed a sentence of seven years of imprisonment. For each of the possession of narcotics counts, the court imposed a sentence of seven years of imprisonment. For these four counts, the court ordered the sentences to be served concurrently. For the manslaughter in the first degree count, the court imposed a sentence of eighteen years of imprisonment. The court ordered the sentence for the manslaughter count to be served consecutive to the sentences imposed with respect to the other counts. This resulted in a total effective sentence of twenty-five years of imprisonment. In a direct appeal to this court, the defendant claimed that the evidence did not support the conviction for manslaughter in the first degree and that the trial court improperly had instructed the jury with respect to the state's burden of proof and the presumption of innocence. See State v. Wade , 106 Conn. App. 467, 469, 490-91, 942 A.2d 1085, cert. granted, 287 Conn. 908, 950 A.2d 1286 (2008) (appeal withdrawn June 12, 2008). The latter claim pertained to all of the offenses of which he was convicted. A detailed recitation of the facts underlying the judgment is set forth in that opinion. Id., at 469-75, 942 A.2d 1085. This court rejected the claim of instructional error, but agreed with the claim of evidentiary insufficiency. Id., at 492-93, 942 A.2d 1085. Accordingly, this court affirmed in part and reversed in part the judgment of the trial court. Id. Specifically, this court concluded that the conviction of manslaughter in the first degree in violation of § 53a-55 (a) (3) should be reversed and that the case should be remanded to the trial court with direction to reflect a conviction of manslaughter in the second degree in violation of General Statutes § 53a-56 (a) (1) and to resentence the defendant in accordance with that conviction. Id. In compliance with this court's remand, the trial court, D'Addabbo, J. , held a resentencing hearing. The trial court vacated the sentences it had imposed on all counts in the judgment and modified the judgment to reflect a conviction of the four narcotics related counts that were affirmed by this court as well as manslaughter in the second degree. The trial court resentenced the defendant by imposing a total effective sentence of twenty-three years. It restructured the original sentence by increasing the concurrent terms of imprisonment on the four narcotics related counts from seven years each to thirteen years each. The court ordered that these four sentences be served consecutively to a ten year term of imprisonment for the manslaughter in the second degree conviction. Following his resentencing, the defendant appealed to this court. Our Supreme Court transferred the appeal to itself pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1. Before our Supreme Court, the defendant claimed that "(1) the trial court improperly resentenced him on all of his convictions because [this court's] order directed resentencing only on the reversed count; (2) the aggregate package theory, adopted by [our Supreme Court] in State v. Miranda , 260 Conn. 93, 794 A.2d 506, cert. denied, 537 U.S. 902, 123 S.Ct. 224, 154 L.Ed.2d 175 (2002), does not apply when the reversal of a conviction is based on insufficient evidence; (3) under North Carolina v. Pearce , 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), the trial court's decision to increase the sentences on the affirmed counts violated the defendant's due process rights under the fourteenth amendment to the United States constitution and, alternatively, article first, § 8, of the Connecticut constitution; and (4) [our Supreme Court] should vacate his sentences under [the court's] supervisory powers over the administration of justice." (Footnotes added and omitted.) State v. Wade , 297 Conn. 262, 265-66, 998 A.2d 1114 (2010). Our Supreme Court rejected these claims and affirmed the judgment of the trial court. Id., at 266, 998 A.2d 1114. In February, 2015, the defendant filed a motion to correct an illegal sentence. Although he raised additional arguments that he later abandoned before the trial court, he argued that the newly imposed sentence was illegal because (1) the court violated his right to due process as guaranteed by the federal and state constitutions by altering the sentences on the narcotics related counts without the statutory authority to do so; (2) the court violated the prohibition against double jeopardy enshrined in the federal and state constitutions by altering the sentences on the narcotics related offenses without the statutory authority to do so; and (3) the court altered the sentences on the narcotics related offenses in the absence of factual findings as required by Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Alleyne v. United States , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). The court, Alander, J. , rejected these three claims on their merits and denied the motion to correct. This appeal followed. In the present appeal, the defendant challenges only that part of the court's decision in which it rejected his double jeopardy claim. In its memorandum of decision, the court addressed the double jeopardy claim as follows: "The defendant's second claim is that the reopening of his drug convictions for purposes of resentencing violated the double jeopardy clauses of the United States constitution and the Connecticut constitution. This claim lacks merit for the simple reason that the Appellate Court in State v. LaFleur , 156 Conn. App. 289, 308-11, [113 A.3d 472, cert. denied, 317 Conn. 906, 114 A.3d 1221 (2015),] previously rejected such a claim. In LaFleur , the defendant appealed his convictions in two cases consolidated for trial. The convictions in one of the cases were reversed by our Supreme Court which vacated the entire sentence in both cases and remanded the cases for resentencing. Just as the defendant does here, the defendant in LaFleur claimed that his subsequent sentence violated the double jeopardy prohibition against multiple punishments for the same offense because he had an expectation of finality in the original sentence [with respect to the convictions that were not reversed on appeal]. The Appellate Court disagreed. 'Even if the defendant had raised claims that challenged only some of the counts under which he had been convicted, the fact that he exercised his right to an appeal undermines his argument to an expectation of finality in the sentence originally imposed. The defendant was successful in undermining a portion of a sentencing package, and the legal consequence of doing so resulted in a resentencing proceeding in which the trial court properly resentenced him pursuant to the remand order.' Id., at 309-10, 113 A.3d 472. 'It is well established that resentencing a defendant does not trigger double jeopardy concerns when the original sentence was illegal or erroneous.' Id., at 310, 113 A.3d 472. 'In the specific context of a remand for resentencing when a defendant successfully challenges one portion of a sentencing "package," the United States Supreme Court has held that a trial court may resentence a defendant on his conviction of the other crimes without offending the double jeopardy clause of the United States constitution. Pennsylvania v. Goldhammer , 474 U.S. 28, 29-30, 106 S.Ct. 353, 88 L.Ed.2d 183 (1985). Indeed, the resentencing court is free to restructure the defendant's entire sentencing package, even for those components assigned to convictions that have been fully served, as long as the overall term has not expired, without offending double jeopardy.' State v. Tabone , 292 Conn. 417, 441, [973 A.2d 74 (2009) ]. As in LaFleur and Tabone , the trial court's resentencing of the defendant upon remand after his successful appeal does not conflict with principles of double jeopardy." Before the trial court, the defendant argued that the resentencing court violated his double jeopardy rights because he had an expectation of finality in the sentences imposed by the first sentencing court with respect to the narcotics related charges. A defendant properly may raise a double jeopardy claim in the context of a motion to correct an illegal sentence. See, e.g., State v. Starks , 121 Conn. App. 581, 591-92, 997 A.2d 546 (2010) ; State v. Olson , 115 Conn. App. 806, 810-11, 973 A.2d 1284 (2009). "Ordinarily, a claim that the trial court improperly denied a defendant's motion to correct an illegal sentence is reviewed pursuant to the abuse of discretion standard.... A double jeopardy claim, however, presents a question of law, over which our review is plenary." (Citation omitted; internal quotation marks omitted.) State v. Baker , 168 Conn. App. 19, 24, 145 A.3d 955, cert. denied, 323 Conn. 932, 150 A.3d 232 (2016). In his brief before this court, the defendant reiterates his belief that it was improper for the court to have reopened and resentenced him with respect to the narcotics related charges. He argues that he had an "expectation of finality in the sentences imposed on the narcotics convictions when those convictions were affirmed and the state had no authority to seek further review of those convictions or sentences." The defendant does not attempt to distinguish LaFleur or Tabone in any meaningful way, and acknowledges that "the courts of this state have otherwise been fairly consistent in finding that no double jeopardy problem exists with respect to the aggregate package theory of sentencing." Rather than attempting to demonstrate that the court either misinterpreted or misapplied the law, the defendant devotes much of his analysis to reviewing what he believes are relevant decisions of the United States Supreme Court, yet he acknowledges that there is support in that body of law "for the proposition that an aggregate package theory of sentencing does not violate double jeopardy." In exercising our plenary review, we, like the trial court, view LaFleur to be controlling precedent with respect to the defendant's double jeopardy claim. Our Supreme Court has already rejected the defendant's claim that the resentencing court improperly sentenced him under the aggregate package theory. See State v. Wade , supra, 297 Conn. at 268-78, 998 A.2d 1114. We will neither reevaluate nor reconsider that settled issue. As the trial court recognized correctly, this court's analysis in LaFleur is dispositive of the double jeopardy claim raised in the present case. See State v. LaFleur , supra, 156 Conn. App. at 308-11, 113 A.3d 472. Accordingly, we conclude that the court properly denied the motion to correct. The judgment is affirmed. In this opinion the other judges concurred. At trial, the state presented evidence demonstrating that the defendant illegally provided the victim with prescription drugs, specifically, Methadose pills (a drug commonly used to treat heroin addiction ) and lollipops containing fentanyl (a narcotic drug commonly used by cancer patients to relieve pain). State v. Wade , supra, 106 Conn. App. at 470 nn.2 and 3, 942 A.2d 1085. The victim's ingestion of these drugs caused her death. Id., at 474, 942 A.2d 1085. Under the aggregate package theory of sentencing, when a multicount conviction is remanded for resentencing after one or more convictions has been vacated on appeal, the trial court may, in its discretion, increase the sentences imposed on the remaining counts provided that the original total effective sentence is not exceeded. See State v. Raucci , 21 Conn. App. 557, 563, 575 A.2d 234, cert. denied, 215 Conn. 817, 576 A.2d 546 (1990). In Raucci , this court reasoned that, when a defendant appeals from a multicount conviction, he "has voluntarily called into play the validity of the entire sentencing package, and, thus, the proper remedy is to vacate it in its entirety. More significantly, the original sentencing court is viewed as having imposed individual sentences merely as component parts or building blocks of a larger total punishment for the aggregate convictions, and, thus, to invalidate any part of that package without allowing the court thereafter to review and revise the remaining valid convictions would frustrate the court's sentencing intent." Id., at 562, 575 A.2d 234. This court went on to observe that a trial court's power to restructure the aggregate package "is limited by its original sentencing intent as expressed by the original total effective sentence ." Id., at 563, 575 A.2d 234. In State v. Miranda , supra, 260 Conn. at 128-30, 794 A.2d 506, our Supreme Court endorsed Raucci and adopted the aggregate package theory. In his brief, the defendant observes that, in Tabone , our Supreme Court stated in relevant part: "The defendant has challenged only the legality of his sentences, not the validity of his conviction. Consequently, the trial court was free to refashion the entire sentence for each of the crimes within the confines of the original package without violating double jeopardy, as long as the entire sentence had not been fully served." State v. Tabone , supra, 292 Conn. at 442, 973 A.2d 74. According to the defendant, this language "suggests that a successful challenge to the validity of a conviction , as opposed to a sentence , prevents the trial court from refashion[ing] the entire sentence for each of the crimes within the confines of the original package on double jeopardy grounds." (Emphasis in original; internal quotation marks omitted.) The defendant in the present case, having challenged the legality of his convictions, reasons: "Tabone leaves doubt as to whether the prohibition against double jeopardy is implicated when the aggregate package theory of sentencing is applied upon remand following a successful challenge to a conviction rather than a sentence ." We disagree with the defendant's narrow interpretation of Tabone . As the defendant acknowledges, immediately following the language on which he relies, the court in Tabone quoted State v. Miranda , supra, 260 Conn. at 129, 794 A.2d 506, for the following proposition: "[T]he defendant, in appealing his conviction and punishment, has voluntarily called into play the validity of the entire sentencing package, and, thus, the proper remedy is to vacate it in its entirety." (Internal quotation marks omitted.) This language dispels the alleged ambiguity in the defendant's interpretation of Tabone . As part of his arguments before this court, the defendant relies to a great extent on United States v. DiFrancesco , 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980), apparently as support for the proposition that, because the state could not obtain appellate review of the sentences imposed with respect to the narcotics related counts in the present case, he had an expectation of finality with respect to those sentences. Thus, the defendant argues, the court violated his double jeopardy rights by resentencing him in the manner that it did. The defendant's argument is not persuasive. Where, as here, a defendant has challenged the validity of his multicount conviction on direct appeal, he is unable thereafter to claim an expectation of finality in the sentences imposed. Consistent with overwhelming federal authority, our courts have recognized that, in such circumstances, "the defendant, in appealing his conviction and punishment, has voluntarily called into play the validity of the entire sentencing package ." State v. Raucci , 21 Conn. App. 557, 562, 575 A.2d 234, cert. denied, 215 Conn. 817, 576 A.2d 546 (1990) ; see also State v. Wade , supra, 297 Conn. at 269-70, 998 A.2d 1114 (same); State v. Tabone , supra, 292 Conn. at 427-28, 973 A.2d 74 (same); State v. Miranda , supra, 260 Conn. at 129, 794 A.2d 506 (same).

12491858

STATE of Connecticut v. Jamarr FOWLER

State v. Fowler

2017-11-28

AC 38979

76

84

175 A.3d 76

175

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:29.057506+00:00

Fastcase

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

STATE of Connecticut v. Jamarr FOWLER

STATE of Connecticut v. Jamarr FOWLER AC 38979 Appellate Court of Connecticut. Argued October 5, 2017 Officially released November 28, 2017 Robert J. McKay, assigned counsel, for the appellant (defendant). Timothy F. Costello, assistant state's attorney, with whom, on the brief, were Richard J. Colangelo, Jr., state's attorney, and Mitchell Rubin, senior assistant state's attorney, for the appellee (state). DiPentima, C.J., and Alvord and Pellegrino, Js.

3997

24885

ALVORD, J. The defendant, Jamarr Fowler, appeals from the judgment of the trial court revoking his probation and imposing a previously suspended three year prison sentence. On appeal, the defendant claims that the trial court improperly (1) found a violation of probation on the basis of insufficient evidence; (2) determined that the Office of Probation had authority to include a probation condition that the defendant must submit to global positioning system (GPS) monitoring; and (3) denied the defendant's motion to dismiss. We affirm the judgment of the trial court. The record reveals the following relevant facts. On July 30, 2015, pursuant to a plea agreement, the defendant pleaded guilty to one count of interfering with an officer in violation of General Statutes § 53a-167a and one count of forgery in the second degree in violation of General Statutes § 53a-139. The trial court, White J. , imposed a total effective sentence of three years incarceration, fully suspended, followed by three years of probation. That same day, the defendant met with a probation intake specialist and reviewed the conditions of his probation, which required, in relevant part, that he "[k]eep the probation officer informed of where you are," "tell your probation officer immediately about any change to your . address," and "[d]o not leave the State of Connecticut without permission from the probation officer." At the time of his intake, the defendant informed Probation Officer Shonda Wright that he had no family or ties in the state of Connecticut, and that he was living in a New York homeless shelter prior to his arrest. Probation Officer Wright told the defendant that probation officials would investigate transferring his probation to the state of New York, but only if he provided a valid and verifiable New York address. Probation Officer Wright instructed the defendant to contact the probation office on August 3, 2015, with a verifiable New York address. On August 3, the defendant called the probation office and spoke to Probation Officer Wright. He explained that he was in New York, homeless, and could not provide a New York address to facilitate the transfer of his probation. Probation Officer Wright informed the defendant that if he could not provide a New York address, his probation would have to be supervised in Connecticut. On August 10, 2015, the defendant called Probation Officer Wright and informed her that he still did not have a New York address. He claimed that he was in New York at the time, but could not provide her with the address of where he was staying. Probation Officer Wright again informed the defendant that if he did not secure a New York address as soon as possible, he would have to return to Connecticut and be supervised by Connecticut probation officials. Because probation officials considered the defendant to be a "higher risk" probationer due to his failure to provide a verifiable address and his newly discovered status as a registered sex offender in New York, Chief Probation Officer Lorraine Rodrigues assumed oversight of the defendant's file on August 14, 2015. On that date, Chief Probation Officer Rodrigues spoke with the defendant and reminded him that he was required either to provide a New York address, or return to Connecticut to be supervised, and that if he did not do so by August 17, 2015, probation officials would issue a violation of probation warrant for his arrest. She also advised the defendant that the decision to accept the transfer of his probation was "completely discretionary" on the part of New York probation officials, who would investigate whether any address that he provided was suitable for supervision. She also informed him that if New York probation officials rejected the transfer, he would have to return to Connecticut to be supervised. On August 17, 2015, the defendant contacted Probation Officer Wright and provided her with a New York address. Probation Officer Wright forwarded the address to New York probation officials as part of an application for an interstate transfer. On September 8, New York probation officials notified Connecticut probation officials that New York had denied the interstate transfer request because the provided address was within 1000 feet of a public school, which was not permitted due to the defendant's status as a registered sex offender. That same day, Probation Officer Wright informed the defendant that his interstate transfer request was denied. She directed the defendant to return to Connecticut by September 10, 2015, to be supervised by Connecticut probation officials. Probation Officer Wright described the defendant as "very agitated" during this phone call. Probation Officer Wright transferred the call to Chief Probation Officer Rodrigues, who reiterated the same information to the defendant. On September 10, 2015, the defendant called Chief Probation Officer Rodrigues. Chief Probation Officer Rodrigues advised the defendant that he was in New York without permission, and instructed him to return to Connecticut by 10 a.m. on September 15, 2015, or probation officials would issue a violation of probation warrant. Later that day, the defendant called Chief Probation Officer Rodrigues and stated that he remembered that he had a pending criminal case in New York and his conditions of release did not permit him to leave the state. Connecticut probation officials investigated this claim, and discovered that while the defendant did have a pending criminal case in New York, the court-ordered conditions of his release did not prohibit him from leaving that state. On September 15, 2015, the defendant reported to the Stamford probation office with his attorney, Benjamin Aponte. The defendant and Aponte met with Chief Probation Officer Rodrigues and Chief Probation Officer Marvin Parsons. At that meeting, the defendant provided an address in the Bronx, New York. He claimed that his aunt had an apartment there, and that she would allow him to take over the lease and reside at the apartment. Chief Probation Officer Parsons asked the defendant for his aunt's contact information, and the defendant was unable to provide it. On the basis of the defendant's inability to provide contact information, coupled with New York's previous rejection of the defendant's transfer request due to the defendant's then stated New York address, Chief Probation Officer Parsons declined at that time to investigate the Bronx address. Chief Probation Officers Parsons and Rodrigues also informed the defendant that his conditions of release in New York did not bar him from leaving the state. Chief Probation Officers Parsons and Rodrigues instructed the defendant to provide the name and address of the hotel where he would be staying that night so that his location could be confirmed, and also instructed him to appear for a scheduled appointment the following day. The defendant did not provide an address that night as instructed. On September 16, at 5 a.m., the defendant called the probation office and left a voicemail stating that he was staying at 20 Hale Drive in Windsor. At Chief Probation Officer Parsons' request, two probation officers from Hartford traveled to the Windsor address to investigate. The probation officers spoke with a female resident, who told them that she did not know the defendant and he was not residing at the address. Subsequently, the defendant called the probation office and claimed that a friend, unbeknownst to the friend's wife, was allowing him to stay in the back of the Windsor residence in a shed. The defendant refused to provide contact information for his friend. The defendant was instructed to bring the information to a scheduled appointment later that day. Later that day, one and a half hours late, the defendant reported to the probation office. At that point, because the defendant still had failed to provide a valid and verifiable address, probation officials informed the defendant that he would be placed on a GPS monitor. The defendant refused, stating, "never in a million years would I agree to go on a GPS monitor." Because the defendant had been given approximately seven weeks to provide a valid and verifiable address and failed to do so, and was considered a higher risk due to his sex offender status in New York, Chief Probation Officer Parsons drafted an application for an arrest warrant for violation of probation when the defendant refused to submit to GPS monitoring. That same day, the court, Hon. Richard F. Comerford, Jr. , judge trial referee, signed the warrant and probation officials arrested the defendant. During the adjudication phase of the defendant's violation of probation hearing, the state called Chief Probation Officer Parsons to testify and entered five exhibits into evidence, including a copy of the defendant's signed conditions of probation and the violation of probation warrant. The defendant did not offer any evidence. The trial court, A., Grogins, J. , found that the defendant had violated the conditions of his probation, specifically that he failed to keep probation apprised of his whereabouts and failed to provide a valid and verifiable address to probation. Following the adjudication phase of the hearing, the court sentenced the defendant to a period of three years incarceration. This appeal followed. I The defendant's first claim on appeal is that there was insufficient evidence to support the trial court's finding that he violated a condition of his probation. Specifically, he contends that "according to the testimony of [Chief] Probation Officer Parsons . [he] did, in fact, keep the probation department informed of his whereabouts at all times." We disagree. "[A] probation revocation hearing has two distinct components.... The trial court must first conduct an adversarial evidentiary hearing to determine whether the defendant has in fact violated a condition of probation.... If the trial court determines that the evidence has established a violation of a condition of probation, then it proceeds to the second component of probation revocation, the determination of whether the defendant's probationary status should be revoked.... To support a finding of probation violation, the evidence must induce a reasonable belief that it is more probable than not that the defendant has violated a condition of his or her probation.... In making its factual determination, the trial court is entitled to draw reasonable and logical inferences from the evidence.... This court may reverse the trial court's initial factual determination that a condition of probation has been violated only if we determine that such a finding was clearly erroneous.... 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. . In making this determination, every reasonable presumption must be given in favor of the trial court's ruling.... A fact is more probable than not when it is supported by a fair preponderance of the evidence." (Internal quotation marks omitted.) State v. Sherrod , 157 Conn. App. 376, 381-82, 115 A.3d 1167, cert. denied, 318 Conn. 904, 122 A.3d 633 (2015). The record reveals sufficient evidence for the court reasonably to have found that the defendant violated the conditions of his probation by failing to keep probation officers informed of his whereabouts and failing to provide probation officers with a valid and verifiable address. At the violation of probation hearing, the state entered into evidence, inter alia, the defendant's conditions of probation and the violation of probation warrant, and also called Chief Probation Officer Parsons to testify as to the basis for the drafting of the violation of probation warrant. Chief Probation Officer Parsons detailed the approximately seven week efforts of probation officials to obtain a verifiable address for the defendant in either Connecticut or New York. He explained that probation officials violated the defendant because "he had been given approximately a month and a half to provide a valid address, either in the state of New York or Connecticut and was unable to do so.... [W]e just did not have an established residence for him and we felt that he was afforded ample opportunity to provide that." The court credited the state's evidence and found that "after listening to the testimony presented by the state and reviewing all of the exhibits in the record provided that the defendant did violate the conditions of his probation and the state proved that by a fair preponderance of the evidence and specifically proved that the defendant did not keep probation apprised of his whereabouts and that he failed to provide a valid and verifiable address to probation." Based on the evidence presented of the defendant's repeated failures to provide a valid and verifiable address in either New York or Connecticut despite numerous opportunities to do so, we cannot conclude that the trial court's finding that the defendant violated the conditions of his probation was clearly erroneous. See State v. Miller , 83 Conn. App. 789, 795-96, 851 A.2d 367 (sufficient evidence for trial court to find a violation of probation where probation officer testified that [1] he called two phone numbers provided by defendant and spoke with individuals who led him to believe that defendant was not residing there; and [2] sent letters to two addresses provided by defendant and both were returned, one marked "[d]oesn't live here" [internal quotation marks omitted] ), cert. denied, 271 Conn. 911, 859 A.2d 573 (2004) ; State v. Garuti , 60 Conn. App. 794, 797-98, 761 A.2d 774 (2000) (sufficient evidence for trial court to find violation of probation where probation officer testified that when he visited an address provided by defendant, a woman informed him that defendant "had never stayed at that address" [internal quotation marks omitted] ), cert. denied, 255 Conn. 931, 767 A.2d 102 (2001). "The weight to be given [to] the evidence and [to] the credibility of witnesses [is] solely within the determination of the trier of fact.... The court performed its duty, and we will not usurp its function." (Citation omitted; internal quotation marks omitted.) State v. Shakir , 130 Conn. App. 458, 469, 22 A.3d 1285, cert. denied, 302 Conn. 931, 28 A.3d 345 (2011). In light of this record, we conclude that there was sufficient evidence to find that the defendant violated his probation. II The defendant next claims that the trial court improperly determined that the office of probation had authority, pursuant to General Statutes § 53a-30(b), to require him to submit to GPS monitoring during his probationary period. He argues that "[t]he probation department did not have authority to add this condition since it was not included as part of the defendant's plea agreement, which the court, White, J. , accepted," and that General Statutes § 53a-30(c)"requires a hearing and a showing of good cause before any additions or enlargements can be made to his condition of probation." He further contends that "the refusal to wear a GPS monitor, when not a standard or special condition ordered by the court at his plea of July 30, 2015, does not constitute a violation of his probation." We need not address this claim. "[A] violation of any one condition of probation would suffice to serve as a basis for revoking the defendant's probation.... Our law does not require the state to prove that all conditions alleged were violated; it is sufficient to prove that one was violated." (Internal quotation marks omitted.) State v. Lanagan , 119 Conn. App. 53, 62, 986 A.2d 1113 (2010). Given that we have already concluded that there was sufficient evidence for the trial court to find that the defendant violated the conditions of probation by failing to keep probation officers informed of his whereabouts and to provide a valid and verifiable address, we need not consider whether the office of probation had authority to require the defendant to submit to GPS monitoring, or whether the defendant's refusal to do so constituted a violation of the conditions of his probation. Because such a determination by this court would not affect the disposition of this appeal, we decline to reach this claim. III The defendant's final claim is that the trial court erred in denying his oral motion to dismiss. Because "[h]e offers no analysis or authority in support of this claim . we decline to review it because it is inadequately briefed." State v. Leary , 51 Conn. App. 497, 499-501, 725 A.2d 328 (1999). The defendant devotes less than one page of his brief to this claim, which provides little more than a factual account of his oral motion to dismiss raised at the violation of probation hearing, and includes neither argument nor analysis of his passing citation to case law. See State v. T.R.D. , 286 Conn. 191, 213-14 n.18, 942 A.2d 1000 (2008) (declining to review claim as inadequately briefed where defendant "devoted a mere three quarters of a page in his brief to [the] claim, and failed to explicate adequately" the basis of his argument); State v. Duteau , 68 Conn. App. 248, 261-62, 791 A.2d 591 (declining to review claim as inadequately briefed where defendant failed to "provide either legal authority or analysis to support this claim"), cert. denied, 260 Conn. 939, 835 A.2d 58 (2002). "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." (Internal quotation marks omitted.) State v. Leary , supra, at 499, 725 A.2d 328. Because the defendant's claim is inadequately briefed, we decline to address it. The judgment is affirmed. In this opinion the other judges concurred. Although the trial court did not make detailed factual findings as to each of the facts discussed herein, it did state on the record that "I also find I credited the testimony and the exhibits heard." The grounds for the trial court's conclusion that the defendant violated his probation are adequately shown in the record before this court. The defendant signed the conditions of probation to acknowledge that he read and understood them, that a probation officer had reviewed them with him, and that he would follow them. An August 5, 2015 criminal background check revealed that the defendant was registered as a sex offender in New York, and that he was listed as homeless on New York's sex offender registry. During this phone call, Chief Probation Officer Rodrigues informed the defendant that if he could not find housing in Connecticut, probation officials would investigate placing him in transitional housing or a local shelter. Later that day, the defendant called Connecticut's central probation office stating that he did not understand why New York had denied his transfer request. He claimed that New York probation officials previously supervised him at the address he provided and that the address had been "preapproved." Probation officials contacted New York and learned that, in fact, the defendant had never been under probation or parole supervision in New York. Chief Probation Officer Rodrigues described the defendant as "argumentative" during this call. He asserted that he had just started a new job in New York, did not have the finances to return to Connecticut, did not have a place to stay in Connecticut, and did not want to return to Connecticut. Chief Probation Officer Rodrigues informed the defendant that if his employment was verified, probation officials would consider allowing him to travel back and forth to New York for work. Chief Probation Officer Rodrigues again informed the defendant that probation could refer him to transitional housing or a local shelter. The defendant rejected Chief Probation Officer Rodrigues' offer of temporary housing. Rather, the defendant and his bail bondsman on the New York matter agreed that he would not leave New York. Chief Probation Officer Parsons did, however, advise the defendant that probation officials would investigate whether the Bronx address was suitable for transferring his case if he provided contact information for his aunt. Chief Probation Officers Parsons and Rodrigues offered to notify the bondsman that the defendant had legal obligations in Connecticut. They also informed the defendant that probation officials would permit him to travel back and forth to New York for any court appearances there, as long as the appearances could be verified. Chief Probation Officers Parsons and Rodrigues offered to secure the defendant housing at a local shelter in Stamford, but the defendant declined to stay at a local shelter and instead requested information about hotels in the Stamford area. Knowing, based on the defendant's representations, that he was homeless, Chief Probation Officer Rodrigues provided the defendant with a list of low budget hotels and motels. The defendant rejected that list as unsuitable and stated that he would find his own housing. The defendant also argues that he was "allowed by the probation department to leave the state of Connecticut to find an address in the state of New York" and "constantly reported in person or by phone to a probation officer as directed by probation." The trial court only found that the defendant had violated the condition that he keep probation informed of his whereabouts and provide probation with a valid and verifiable address. Accordingly, we need not address the defendant's arguments as to the conditions of his probation prohibiting him from leaving Connecticut without permission and requiring him to report to probation as directed. The defendant also challenges the trial court's revocation of his probation and imposition of the previously suspended three year prison sentence as an abuse of discretion. In making the determination of whether a defendant's probation should be revoked, "the trial court is vested with broad discretion." (Internal quotation marks omitted.) State v. Sherrod , supra, 157 Conn. App. at 382, 115 A.3d 1167. "On appeal, we will disturb a trial court's sentencing decision only if that discretion clearly has been abused." State v. Shakir , supra, 130 Conn. App. at 470, 22 A.3d 1285. In the sentencing phase of the hearing, the trial court concluded: "I find that based on the credible testimony presented that you had numerous opportunities and time provided to you to follow probation's direction and keep them apprised of your whereabouts and give them a valid and verifiable address and you didn't do that-that you during the time that the probation staff was giving you these opportunities you were not cooperative, you did not cooperate with them, you did not comply, you were argumentative and combative, and once again you didn't fulfill the ultimate goals of probation and probation's purposes are exhausted." In light of the record, we conclude that the trial court did not abuse its discretion in revoking the defendant's probation and sentencing him to a period of incarceration. General Statutes § 53a-30(b) provides: "When a defendant has been sentenced to a period of probation, the Court Support Services Division may require that the defendant comply with any or all conditions which the court could have imposed under subsection (a) of this section which are not inconsistent with any condition actually imposed by the court." General Statutes § 53a-30(a)(14) provides in relevant part: "When imposing sentence of probation or conditional discharge, the court may, as a condition of the sentence, order that the defendant . be subject to electronic monitoring, which may include the use of a global positioning system." We also decline to address this argument on the basis that the trial court made no finding regarding the office of probation's statutory authority to require the defendant to submit to GPS monitoring. See, e.g., DeFeo v. DeFeo , 119 Conn. App. 30, 32 n.3, 986 A.2d 1099 (2010) (declining to address argument that trial court improperly found that plaintiff did not receive notice of foreclosure where court made no such finding).

12490941

Kimberly KENNESON v. Celia EGGERT, et al.

Kenneson v. Eggert

2017-09-12

(AC 38784).

14

25

170 A.3d 14

170

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:26.796983+00:00

Fastcase

Kimberly KENNESON v. Celia EGGERT, et al.

Kimberly KENNESON v. Celia EGGERT, et al. (AC 38784). Appellate Court of Connecticut. Argued March 9, 2017 Officially released September 12, 2017 Kimberly Kenneson, self-represented, the appellant (plaintiff). Robert D. Laurie, with whom, on the brief, was Heather L. McCoy, West Hartford, for the appellees (defendants). Keller, Beach and Harper, Js.

4925

31281

BEACH, J. The plaintiff, Kimberly Kenneson, appeals from the trial court's summary judgment rendered in favor of the defendants, Celia Eggert and Nationwide Mutual Fire Insurance Company (Nationwide). On appeal, the plaintiff contends that the court improperly held that (1) the defendants were entitled to summary judgment, and (2) certain communications were not discoverable. We reverse in part the trial court's summary judgment and affirm the court's denial of the plaintiff's motions for an order for compliance with the court's discovery order. The record reveals the following relevant facts and procedural history. In January, 2007, the plaintiff commenced a civil action against Carl Rosati and Michael Altman for negligence, battery, and recklessness (negligence action). Altman was insured by Nationwide, and Nationwide agreed to provide Altman with a defense. Nationwide arranged for the Law Offices of John Calabrese to represent Altman. Eggert, an attorney with that firm, represented Altman at trial. The plaintiff represented herself at trial and obtained a jury verdict in her favor. The jury awarded the plaintiff damages of $67,556.07 against Altman and $380,037.38 against Rosati. Although he was served with process, Rosati did not appear at trial. After the verdict was accepted by the court, Altman filed a motion to set aside the verdict and a motion for collateral source reduction. Several weeks later, on July 18, 2011, the plaintiff, Eggert, and a Nationwide claims adjuster appeared in court for a hearing on the motions and a settlement conference. At the settlement conference, Nationwide offered the plaintiff $57,000 to settle the case against Altman, which the plaintiff declined. Nationwide then offered the plaintiff $67,000, which the plaintiff ultimately accepted. Pursuant to the settlement agreement, the plaintiff signed a general release and a withdrawal form. The release provided, in relevant part, that "[b]y signing this release, [the plaintiff] expressly acknowledges that he/she has read this document with care and that he/she is aware that by signing this document he/she is giving up all rights and claims and causes of action, and any and all rights and claims that he/she may now have or which may arise in the future . against [Nationwide and Altman] . Knowing this . he/she signs this document voluntarily and freely without duress." The release also stated that "[the plaintiff] further acknowledges that no representation of fact or opinion has been made to him/her by [Nationwide and Altman] . which in any manner has induced [the plaintiff] to agree to this settlement." The plaintiff signed the release before two witnesses and a notary public. The plaintiff subsequently discovered that she was unable to collect damages from Rosati, who had been uninsured and had died without assets in August, 2013. On April 28, 2014, the plaintiff filed a motion to open the judgment and a motion to reinstate Altman as a defendant. The plaintiff argued that she did not know that signing the release would prevent her from reallocating the damages, at least in part, against Rosati to Altman and Nationwide, and that Eggert engaged in "unfair and deceptive" behavior when she instructed her to sign the release "without explaining what it was and how it can affect a judgment." Altman filed an objection, arguing that the release was valid and that the plaintiff was aware of the nature of the document when she signed it. On June 20, 2014, the court, Pellegrino, J. , heard oral argument on the plaintiff's motion to open. During oral argument, Judge Pellegrino questioned the plaintiff regarding the alleged fraud committed by Eggert. Judge Pellegrino ultimately denied the plaintiff's motion, noting that there was no evidence that Eggert had coerced the plaintiff into signing the release, and that the release, by its terms, provided that the plaintiff had read the document with care. The plaintiff did not appeal from Judge Pellegrino's decision. On July 17, 2014, the plaintiff commenced the present action against the defendants, alleging that Eggert had committed fraud against the plaintiff and that Nationwide was vicariously liable for her actions. The plaintiff subsequently made several discovery requests to the defendants, and the defendants objected. After a hearing, the court ordered the defendants to produce responsive documents and to provide a privilege log for any documents they redacted or withheld. The defendants subsequently provided a large number of documents, but withheld several e-mails between them, claiming that those communications were protected by attorney-client privilege and the work product doctrine. The plaintiff filed motions for compliance against both defendants. The court heard oral argument and denied the plaintiff's motions. The court held that the plaintiff was not entitled to materials protected by the attorney client privilege or the work product doctrine, and that the plaintiff had offered "[n]o quantum of proof . to support a claim of civil fraud which would permit the privilege to be pierced." On December 4, 2014, the defendants filed a motion for summary judgment, arguing that the plaintiff's claim was barred by the doctrine of collateral estoppel, because Judge Pellegrino's decision on the plaintiff's motion to open in the negligence action had previously addressed the fraud issue. They also argued that the claim was barred by the terms and conditions of the release. The plaintiff filed a memorandum of law in opposition to the motion to which the defendants replied, and the parties appeared for argument on August 8, 2015. The court held that the plaintiff was collaterally estopped from asserting her fraud claims and that, even if collateral estoppel did not apply, the defendants were entitled to summary judgment because the plaintiff was unable to prove her claims for common-law fraud. The plaintiff appeals from the court's summary judgment and its denial of her motions for compliance. Additional facts will be set forth as necessary. I The plaintiff first claims that the trial court improperly granted the defendants' motion for summary judgment. We agree with the plaintiff that a genuine issue of material fact exists as to her claim for intentional misrepresentation, but disagree with her claim that the court erred in granting the motion for summary judgment on her claim for fraudulent nondisclosure. As a preliminary matter, we state the standard of review applicable to the resolution of the plaintiff's appeal. "Practice Book § [17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.... The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. "It is not enough . 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 . [T]ypically [d]emonstrating a genuine issue requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred.... Our review of the decision to grant a motion for summary judgment is plenary.... We therefore must decide whether the court's conclusions were legally and logically correct and find support in the record." (Citations omitted; footnote omitted; internal quotation marks omitted.) Brown v. Otake , 164 Conn.App. 686, 699-701, 138 A.3d 951 (2016). In her amended complaint, the plaintiff effectively presented two claims for fraud. First, she alleged that Eggert "falsely represented to the plaintiff . that she would not get any of her $67,556.07 award against . Altman unless she signed a document . to settle the judgment ." Second, she alleged that "Eggert, with the intent to deceive the plaintiff, knowingly failed to disclose and/or concealed that [the release and withdrawal] would result in the loss of the plaintiff's right to reallocate damages ." We address each of the plaintiff's claims in turn. A The plaintiff first sets forth a claim for fraud based on intentional misrepresentation. "The essential elements of an action in common law fraud, as we have repeatedly held, are that: (1) a false representation was made as a statement of fact; (2) it was untrue and known to be untrue by the party making it; (3) it was made to induce the other party to act upon it; and (4) the other party did so act upon that false representation to his injury.... In contrast to a negligent representation, [a] fraudulent representation . is one that is knowingly untrue, or made without belief in its truth, or recklessly made and for the purpose of inducing action upon it." (Citation omitted; internal quotation marks omitted.) Sturm v. Harb Development, LLC , 298 Conn. 124, 142, 2 A.3d 859 (2010). The court determined that the defendants were entitled to summary judgment because the plaintiff's claim (1) was precluded by collateral estoppel, (2) was based on a misrepresentation that did not relate to an existing or past fact, and therefore was not actionable, and (3) constituted a sham claim pursuant to the sham affidavit rule. The defendants argue that all three of the court's determinations were proper. We disagree. 1 The plaintiff argues that the court erred in concluding that her intentional misrepresentation claim was precluded by collateral estoppel. She reasons that Judge Pellegrino "did not, at the June 20, 2014 hearing, consider the issues raised in the complaint, namely, the fraudulent statements made by . Eggert to the plaintiff that the plaintiff was required to sign a release and withdraw her case against . Altman in order to obtain the damages awarded by the jury." We agree. "Collateral estoppel, or issue preclusion, prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action.... 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." (Citations omitted; internal quotation marks omitted.) Aetna Casualty & Surety Co. v. Jones , 220 Conn. 285, 296, 596 A.2d 414 (1991). "To establish whether collateral estoppel applies, the court must determine what facts were necessarily determined in the first trial, and must then assess whether the [party] is attempting to relitigate those facts in the second proceeding." (Internal quotation marks omitted.) Id., at 297, 596 A.2d 414. "In order for collateral estoppel to bar the relitigation of an issue in a later proceeding, the issue concerning which relitigation is sought to be estopped must be identical to the issue decided in the prior proceeding." (Emphasis added.) Id. First, it is not clear to us that the claim for intentional misrepresentation set forth in the complaint underlying this appeal was "actually litigated" at the hearing before Judge Pellegrino on the plaintiff's motion to open in the negligence action. In her motion to open, the plaintiff claimed that "[Eggert] stated I had to sign the [release] in order to receive the check she was going to give me for damages won from her client" and that "[i]t was explained that I would have to sign the documents if I was to collect what was owed to me by . Altman." (Emphasis added.) Following the plaintiff's jury verdict in the negligence action, the plaintiff was awarded $67,556.07 in damages against Altman. The plaintiff ultimately released Altman in return for $67,000. In presenting her claim at the hearing on the motion to open, the plaintiff occasionally referred to the damages awarded by the jury as "$67,000." A careful review of the transcript of that hearing reveals that there may have been a lack of clarity as to whether the plaintiff claimed that Eggert had told her that she could not receive the damages award unless she signed the release, or that Eggert had told her that she would not receive the amount in settlement of the case unless she signed the release. For example, when the plaintiff argued that she never would have signed the release had she known that it would prevent her from reallocating damages, the court stated: "And you would have never gotten the 60-$67,000." The plaintiff responded: "I was awarded that, Your Honor." The court responded: "All right." Later, the court stated to the plaintiff: "I mean, what-that's not fraudulent, that's just a statement of fact. My client will not permit me to give you $67,000 of my money, unless the plaintiff signs a release as to me." The plaintiff responded: "Well, my argument there, Your Honor, is I didn't need to sign a release, $67,000 was . awarded to me . I didn't need to. It was a satisfaction . of judgment ." Because of these apparent miscommunications, it is difficult for us to discern "what facts were necessarily determined" in the prior action with respect to the precise wording of Eggert's alleged misrepresentation. As a result, there exists a genuine issue of material fact as to whether the claim set forth in the complaint underlying this appeal-that Eggert represented to the plaintiff that "she would not get any of her $67,556.07 award against . Altman unless she signed a document for $67,000 to settle the judgment"-was fully and fairly litigated at the hearing on the motion to open. Furthermore, it is not clear to us that the issue of intentional misrepresentation was "actually decided" by the court in rendering its decision on the motion to open. Although the court concluded that "[t]here was no evidence presented that [the plaintiff] was in any way coerced to execute the release," it did not specifically address whether the plaintiff had failed to prove the elements of a claim for fraudulent misrepresentation. As noted previously, in order for collateral estoppel to bar the relitigation of an issue, "the issue concerning which relitigation is sought to be estopped must be identical to the issue decided in the prior proceeding." (Emphasis added.) Aetna Casualty & Surety Co. v. Jones , supra, 220 Conn. at 297, 596 A.2d 414. The issue of intentional misrepresentation is different from the issue of coercion. As such, a genuine issue of material fact remains as to whether the issue of intentional misrepresentation was "actually decided" by the court in rendering its decision on the plaintiff's motion to open. Because a genuine issue of material fact exists as to whether the plaintiff's claim for intentional misrepresentation was "fully and fairly litigated" and "actually decided" in the context of her motion to open, the trial court improperly rendered summary judgment on the basis of collateral estoppel. 2 The defendants argue, as an alternative ground for affirming the judgment, that the trial court properly determined that, even if the plaintiff's claim for intentional misrepresentation was not barred by collateral estoppel, the defendants nonetheless were entitled to summary judgment because the alleged misrepresentation did not relate to a past or existing fact and, therefore, was not actionable. We disagree. "A representation of fact is a positive assertion that the fact is true. It implies that the maker has definite knowledge or information which justifies the positive assertion." 3 Restatement (Second), Torts, § 538A, comment (a), p. 83 (1977). "[T]he general rule is that a misrepresentation must relate to an existing or past fact" to be actionable. Brown v. Otake , supra, 164 Conn.App. at 706, 138 A.3d 951. Our Supreme Court "ha[s] not yet addressed whether statements of judgment or statements conditioned on future events can support a claim for misrepresentation, although many other jurisdictions have adopted a position against such claims." Glazer v. Dress Barn, Inc. , 274 Conn. 33, 75 n.32, 873 A.2d 929 (2005). In determining whether a statement constitutes a statement of fact, as opposed to, for example, a statement of judgment or opinion, "[t]he question is . not alone one of the language used but of the sense in which it is reasonably understood." 3 Restatement (Second), supra, § 538A, comment (d), p. 84. As set forth in the plaintiff's complaint, Eggert allegedly misrepresented to the plaintiff that "she would not get any of her $67,556.07 award against . Altman unless she signed a document for $67,000 to settle the judgment on the verdict for negligence against [Altman] and also with[drew] the case against him." The defendants argue that this statement did not relate to an existing or past fact and, therefore, is not actionable. We are not persuaded. Because no court has determined precisely what, if anything, Eggert said to the plaintiff at the settlement conference, is it difficult to determine how Eggert's alleged misrepresentation may reasonably have been understood by the plaintiff. It is entirely possible that the alleged misrepresentation could be construed as relating to an existing fact. For example, Eggert's alleged statement possibly may have suggested that the current state of the law was such that the plaintiff was not able to receive the amount of the judgment unless she signed the release. In addition, because the plaintiff was self-represented, she may have presumed Eggert, an attorney, to have special knowledge of facts unknown to her in the context of a legal proceeding. See Restatement (Second), supra, § 539, comment (b), p. 86 ("The statement of opinion . may also reasonably be understood to imply that [the maker] does know facts sufficient to justify him in forming the opinion . This is true particularly when the maker is understood to have special knowledge of facts unknown to the recipient."); see also Crowther v. Guidone , 183 Conn. 464, 468, 441 A.2d 11 (1981) ("Considered in context, Guidone's statement that the plaintiffs could build a house on the subject property and then divide the parcel, selling the balance of the property to others, clearly was made as a statement of fact.... Guidone was an experienced real estate salesman who had extensive knowledge of the zoning regulations of North Branford. Thus, when he made the misrepresentation, he did not merely venture an opinion or an interpretation of the law. He indicated that he knew, as a fact, that a certain use was permissible under the applicable zoning regulations.") Because we must view the evidence in the light most favorable to the plaintiff; see Martel v. Metropolitan District Commission , 275 Conn. 38, 46, 881 A.2d 194 (2005) ; and because we cannot disregard the interpretation that the alleged misrepresentation reasonably could have been understood to relate to an existing set of affairs, there was a genuine issue of fact such that we decline to affirm a grant of summary judgment on this ground. 3 The defendants also argue that they were entitled to summary judgment because, based on the "glaring inconsistencies in what the plaintiff alleged that [Eggert] said at the hearing before Judge Pellegrino, and what the plaintiff averred in her affidavit opposing summary judgment," it was clear that the plaintiff was presenting a sham claim. We disagree. "The 'sham affidavit' rule refers to the trial court practice of disregarding an offsetting affidavit in opposition to a motion for summary judgment that contradicts the affiant's prior deposition testimony." Ross v. Dugan , Superior Court, judicial district of New London, Docket No. CV-106006404-S, 2011 WL 6976102 (December 16, 2011). "It must be strongly emphasized that the sham affidavit rule is a narrowly circumscribed doctrine that is to be applied with care.... [M]any courts have determined that if the witness provides a reasonable explanation for the contradiction, such as confusion or discovery of new evidence, the sham affidavit rule should not apply." (Citations omitted.) Id. Connecticut appellate courts have yet to expressly adopt this rule. Id. The defendants claim that "[d]uring the hearing, the plaintiff said, 'when I asked Attorney Eggert what [the document was] her words to me were, you have to sign this document to get this check .' In contrast, the plaintiff's affidavit opposing the [defendants'] summary judgment motion avers as follows: 'the defendant Eggert then falsely represented to me, pro se, that I would not get any of my $67,556.07 award against . Altman unless I signed a document . to settle the judgment ." The defendants argue that because of this inconsistency, the plaintiff's claim should be disposed of pursuant to the sham affidavit rule. Although we agree that the two statements may not have been entirely consistent, the shades of meaning were somewhat abstract, especially to a layperson. Any inconsistency may of course bear on the question of credibility, but it does not destroy all probative value. Even if we were to accept the very narrow "sham affidavit rule," which, again, has yet to be expressly recognized by Connecticut appellate courts, we do not find that the rule would be triggered in the circumstances of this case. B The plaintiff also has presented a claim for fraudulent nondisclosure. Specifically, she alleged in her complaint that Eggert "knowingly failed to disclose and/or concealed that [the release and withdrawal] would result in the loss of the plaintiff's right to reallocate damages ." The plaintiff argues that, in granting the motion for summary judgment, the court improperly determined that she could not prove a claim for fraudulent nondisclosure because she failed to establish that she shared a fiduciary relationship with the defendants. We disagree. It is well settled that "[m]ere nondisclosure . does not ordinarily amount to fraud.... To constitute fraud on that ground, there must be a failure to disclose known facts and, in addition thereto, a request or an occasion or a circumstance which imposes a duty to speak." (Citations omitted.) Egan v. Hudson Nut Products, Inc. , 142 Conn. 344, 348, 114 A.2d 213 (1955). Therefore, in order to prove that Eggert's silence regarding the potential effects of the release and withdrawal constituted fraudulent conduct, the plaintiff needed to prove that the parties' relationship imposed a duty on Eggert to explain the potential effects of those documents to the plaintiff. As the trial court noted, "[n]o such relationship existed in the present case because . Eggert was providing legal representation to the plaintiff's adversary [and not to her]." The plaintiff presented no evidence to counter this fact. Thus, the trial court properly determined that no genuine issue of material fact exists as to whether the plaintiff could establish a claim for fraudulent nondisclosure. II Finally, the plaintiff claims that the court improperly determined that certain documents were protected by the attorney-client privilege and the work product doctrine. We disagree. As mentioned, the plaintiff served the defendants with requests for discovery in October, 2014. The defendants objected, and the court, after hearing oral argument, ordered the defendants to provide the plaintiff with certain documents and to provide a privilege log for any documents they withheld or redacted. The defendants subsequently disclosed a substantial amount of materials-approximately 550 pages of documents-as well as a privilege log identifying materials that had been withheld or redacted. The defendants withheld several e-mails between Eggert and a representative of Nationwide, e-mails between Eggert's office and a representative of Nationwide, and correspondence between Eggert and Altman, claiming that these materials were protected by the attorney-client privilege and/or the work product doctrine. The defendants also withheld documents containing confidential information regarding reserves. The plaintiff then filed motions for compliance against both defendants, and they responded in a joint memorandum in opposition to the motions. After a hearing, the court entered an order denying the plaintiff's motions. The order provided, in its entirety, as follows: "The plaintiff is not entitled to information which is protected by the attorney-client privilege or which represents an attorney's opinion work product. No quantum of proof has been offered to support a claim of civil fraud which would permit the privilege to be pierced. Reserve information is not reasonably calculated to lead to the discovery of admissible evidence and is thus not subject to disclosure." We begin by setting forth the relevant standard of review. "[T]he granting or denial of a discovery request rests in the sound discretion of the court.... Provided the trial court properly interpreted the pertinent statutes, a question over which this court has plenary review . that decision will be reversed only if such an order constitutes an abuse of that discretion.... Under the abuse of discretion standard, [w]e must make every reasonable presumption in favor of the trial court's action.... The trial court's exercise of its discretion will be reversed only [when] the abuse of discretion is manifest or [when] injustice appears to have been done." (Citation omitted; internal quotation marks omitted.) Woodbury Knoll, LLC v. Shipman & Goodwin, LLP , 305 Conn. 750, 775, 48 A.3d 16 (2012). In its order denying the plaintiff's motions for compliance, the court recognized that certain communications between the defendants were protected by the attorney-client privilege and the work product doctrine. The plaintiff argues that the attorney-client privilege and the work product doctrine "appl[y] only in the previously concluded tort case," and do not protect the defendants' records from discovery in the present action. She further argues that "these materials are likely to contain statements or information concerning representations made to the plaintiff about, and the plaintiff's understanding of, the settlement and release in [the negligence action]." The defendants argue that the attorney-client privilege and the work product doctrine are not time limited, and the materials requested by the plaintiff are protected from discovery. We agree with the defendants. On the limited record before us, we do not conclude that the trial court abused its discretion in denying the plaintiff's motions for compliance, nor that an injustice appears to have been done. The judgment is reversed with respect to the plaintiff's claim of intentional misrepresentation and the case is remanded for further proceedings according to law; the judgment is affirmed in all other respects. In this opinion the other judges concurred. See Kenneson v. Rosati, Superior Court, judicial district of Waterbury, Docket No. CV-07-5003827-S, 2007 WL 1893638 (June 13, 2007). In the circumstances of this case, the nuances in the wording are more than merely semantic. By way of illustration, suppose that Eggert had actually said, "I cannot give you a check now to settle the claims against Altman unless you sign this release." This statement would quite unremarkably comport with the usual practice. Suppose, on the other hand, Eggert had actually said, "General Statutes § 52-700 is such that you will never receive damages from Altman unless you sign this release." There is no evidence in this case that the latter words were specifically spoken, yet the plaintiff's alleged version of the words that were spoken is arguably consistent with the import of this statement. The former version would not be a misrepresentation at all; the latter version arguably could support the first element of fraudulent misrepresentation. We note that the doctrine of res judicata does not apply because there were different defendants in the two proceedings. "Although the Restatement (Second) of Torts is not binding precedent, our appellate courts have frequently looked to it in outlining the contours of tort law in this state. See, e.g., Clohessy v. Bachelor, 237 Conn. 31, 38-39, 46, 675 A.2d 852 (1996) (citing Restatement [Second] of Torts in recognizing action for bystander emotional distress); Stohlts v. Gilkinson, 87 Conn.App. 634, 654, 867 A.2d 860, cert. denied, 273 Conn. 930, 873 A.2d 1000 (2005) (citing Restatement [Second] of Torts in adopting exception to common-law rule that punitive damages cannot be imposed based on theory of vicarious liability)." Wild v. Cocivera, Superior Court, judicial district of Hartford, Docket No. CV-146050575-S, 2016 WL 3912348 (June 16, 2016). The problem, of course, is that signing the release, although facilitating the immediate payment of almost the full amount of the verdict, would presumably prevent the recovery of any reallocation of damages assessed against the cotortfeasor. See General Statutes § 52-572h(g). The court also determined that the plaintiff's claim for fraudulent nondisclosure was precluded under the doctrine of collateral estoppel. The plaintiff argues that this determination was improper. Because we affirm the court's decision on the claim for fraudulent nondisclosure on alternative grounds, we need not reach the collateral estoppel issue for this claim. We further note that no court has established precisely what, if anything, Eggert said. The only issue decided in this case is whether any information has been presented that could create a genuine issue of material fact. We note that when an insurer engages an attorney to represent an insured, the resultant attorney-client privilege belongs to the insured. See Metropolitan Life Ins. Co. v. Aetna Casualty & Surety Co., 249 Conn. 36, 730 A.2d 51 (1999) ; Royal Indemnity Co. v. Terra Firma, Inc., Superior Court, judicial district of Middlesex, Docket No. X04-CV-05-4005063-S, 2007 WL 610783 (February 1, 2007) (42 Conn. L. Rptr. 792). There is, however, "a common interest among the insured, the attorney and the insurer, and ordinarily the insured's privilege is not waived because of disclosure to the insurer." Id. Pursuant to this "common interest," the other involved parties are responsible for protecting the insured's or client's privilege. During oral argument before this court, the defendants argued that they shared this "common interest."

12490939

STATE of Connecticut v. JASON B.

State v. Jason B.

2017-09-05

AC 39287.

139

146

170 A.3d 139

170

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:26.796983+00:00

Fastcase

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

STATE of Connecticut v. JASON B.

STATE of Connecticut v. JASON B. AC 39287. Appellate Court of Connecticut. Argued May 31, 2017 Officially released September 5, 2017 Jason B., self-represented, the appellant (defendant). Nancy L. Chupak, senior assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Adam E. Mattei, assistant state's attorney, for the appellee (state). DiPentima, C.J., and Keller and Mullins, Js. In accordance with our policy of protecting the privacy interests of the victims of sexual assault, we decline to identify the victim or others through whom the victim's identity may be ascertained. See General Statutes § 54-86e.

3716

22490

MULLINS, J. The defendant, Jason B., appeals from the judgment of the trial court dismissing the defendant's motion to correct an illegal sentence. The court dismissed the motion on the ground that the defendant failed to present a colorable claim that his sentence had been imposed in an illegal manner. The defendant claims this was error. We affirm the judgment of the trial court. The following facts, which were set forth by this court in the defendant's direct appeal from his judgment of conviction of sexual assault in the first degree in violation of General Statutes § 53a-70(a)(1) and unlawful restraint in the first degree in violation of General Statutes § 53a-95(a), inform our review. "The victim . and the defendant were married in September, 1999, and had a daughter . [The victim] filed for divorce in October, 2005, and their divorce became final in February, 2006. "On February 21, 2006, the defendant repeatedly contacted [the victim] and requested to meet with her. They . eventually met at a Borders bookstore at about 8:30 p.m. They later walked to a nearby Boston Market for dinner, where the defendant asked [the victim] to have sex with him. She refused, and he asked her to join him in his car for a cigarette. She got into the car, where the defendant renewed his requests for sex, which [the victim] continued to turn down. She tried to get out of the car at least once, but the defendant pulled her back in by the arm. The defendant then informed [the victim] that he had withdrawn all of the money from their joint bank account, approximately $6000, which was all of [the victim's] savings. He also told her that he was going to make her life very difficult, that he was going to take [their daughter], that she would never see [her] again and that he was going to hurt everyone that she knew. He told [the victim] that if she slept with him, he would give back the money and leave her alone. [The victim] again tried to get out of the car, but the defendant pulled her back in. "The defendant then drove off with [the victim] in the car, and [the victim] began screaming out the window; at some point, he had locked all of the doors. He eventually stopped the car in a dark, wooded area with no houses nearby. He climbed from the driver's side to the passenger's side of the car, where [the victim] was sitting, and began touching her between her legs. [The victim] testified that she tried to fight him off but that she was unable to because he had her left arm pinned behind her head and he was stronger than she was. At one point, he also took her [cell phone] from her and threw it in the backseat. He also repeatedly put his hand over her mouth to the point where she could not breathe, and he stopped only when she told him she would not fight him anymore. "The defendant eventually climbed off of [the victim], started the car and told her he would bring her home. Instead, while he was driving, he unzipped his pants, removed his penis and ordered [the victim] to perform fellatio. She began to do so but began to feel sick and . asked the defendant to stop the car. He stopped the car, and she opened the car door and vomited on the side of the road. The defendant started the car again and continued to drive; [the victim] did not know where she was or what town she was in. [The victim] asked to use a bathroom, and the defendant stopped the car again and she got out to urinate. [The victim] returned to the car and the defendant instructed her to lie down as he reclined the seat. The defendant then began touching [the victim's] vagina, asking her if she liked it. She told him she wanted him to stop, and he said: 'No you don't. He took off his belt, flexed it and ordered her into the backseat of the car. They both got into the backseat, and the defendant penetrated the victim's vagina and anus with his penis. After he stopped, the defendant returned to the driver's seat of the car and drove away. He eventually returned to the Boston Market, where [the victim] had left her car, and dropped her off. [The victim] got into her car and drove home. [The victim's] mother, who was at home, called 911, and, after [the victim] was taken to a hospital, she told the emergency room physician that her former husband had forced her to have sex with him." (Footnote omitted.) State v. Jason B. , 111 Conn.App. 359, 360-62, 958 A.2d 1266 (2008), cert. denied, 290 Conn. 904, 962 A.2d 794 (2009). After a jury trial, the court, in accordance with the jury's verdict, rendered a judgment of conviction of sexual assault in the first degree and unlawful restraint in the first degree. At the sentencing hearing, the state requested that the court impose lengthy sentences and that the court order the sentences to run consecutively. Defense counsel argued in relevant part: "I disagree with the consecutive sentences. However, Your Honor, that would be up to Your Honor . I just think that consecutive sentences are . inappropriate at this point . and I think that there would be no need to do that in light of the charges ." (Emphasis added.) Addressing the defendant, the sentencing court stated: "Mr. [B.], I believe that your [former] wife is rightfully afraid of you, and it is clear to me that you are a person who shows no respect for your [former] wife, nor for your daughter based upon your conduct during the months [that] preceded the sexual assault . You also appear to have a significant problem with self-control and a compulsion for the control of others. "The unlawful restraint, in my opinion, given the facts of this case , was a lesser included offense of kidnapping in the first or second degree, which would expose you to a greater sentence. And, when your lawyer . makes note of his objection to the state's request in light of the charges for that reason, because kidnapping in the first or second degree would have exposed you to a greater period of incarceration for that conduct when you were driving around, lost in the dark, against her wishes in your truck, and forcing her to engage in sexual contact with you . "You refuse to take responsibility for your conduct, as far as the court is concerned. You attempted to make this a case of consent. It's never been about consent. This . incident with your [former] wife was sexual assault." (Emphasis added.) As a result, on the sexual assault count, the court sentenced the defendant to twenty years incarceration, execution suspended after ten years, with thirty-five years of probation and lifetime sex offender registration. On the unlawful restraint count, the court sentenced the defendant to five years incarceration. The court ordered that each count would run consecutive with each other, for a total effective sentence of twenty-five years incarceration, execution suspended after fifteen years, with thirty-five years of probation and lifetime sex offender registration. The judgment of conviction was affirmed on direct appeal. State v. Jason B. , supra, 111 Conn.App. at 368, 958 A.2d 1266. The record reveals that, since his direct appeal, the defendant has filed various petitions for a writ of habeas corpus, appeals from judgments denying his petitions, a motion to correct an illegal sentence, an appeal from the denial of that motion, and a request for sentence review. On February 2, 2016, nearly ten years after the court sentenced the defendant on the underlying charges, the defendant filed a second motion to correct an illegal sentence. In that motion, he claimed that his sentence had been imposed in an illegal manner because the court sentenced him to consecutive, rather than concurrent, terms of imprisonment and did so for improper reasons. He argued that the sentencing court mentioned a charge of kidnapping, which was outside of the record and not something with which he had been charged, and that the court ordered his sentence to run consecutively on that basis. The defendant requested that the trial court grant his motion to correct and order that his sentences run concurrently. The trial court dismissed the defendant's motion for lack of subject matter jurisdiction on the ground that the defendant had not presented a colorable claim that his sentence had been imposed in an illegal manner. This appeal followed. On appeal, the defendant claims that the court improperly held that it did not have jurisdiction to consider the defendant's motion. He argues that his motion sufficiently alleged that the sentencing court relied on inaccurate information and information that was not part of the record when it sentenced him to consecutive prison terms, and, therefore, it imposed his sentence in an illegal manner. Specifically, the defendant cites to the sentencing court's statements that the charge of "unlawful restraint . was a lesser included offense of kidnapping in the first or second degree, which would expose you to a greater sentence" and that "kidnapping in the first or second degree would have exposed you to a greater period of incarceration ." The state argues that, although the defendant is correct in stating that a sentencing court's reliance on inaccurate information at sentencing can form a proper basis for a motion to correct an illegal sentence, "in this case, the sentencing court's comments to which the defendant points as evidence of the court's reliance on inaccurate and outside the record information, on their face , refute his claim." (Emphasis in original.) Therefore, the state argues, "the defendant has failed to raise a colorable claim that his sentence was imposed in an illegal manner, and the trial court properly determined that it did not have jurisdiction to entertain his motion." We agree with the state. We first set forth our standard of review. Because "the defendant's [claim] pertain[s] to the subject matter jurisdiction of the trial court, [it] . present[s] a question of law subject to the plenary standard of review.... "The Superior Court is a constitutional court of general jurisdiction. In the absence of statutory or constitutional provisions, the limits of its jurisdiction are delineated by the common law.... It is well established that under the common law a trial court has the discretionary power to modify or vacate a criminal judgment before the sentence has been executed.... This is so because the court loses jurisdiction over the case when the defendant is committed to the custody of the commissioner of correction and begins serving the sentence.... Because it is well established that the jurisdiction of the trial court terminates once a defendant has been sentenced, a trial court may no longer take any action affecting a defendant's sentence unless it expressly has been authorized to act.... " [Practice Book] § 43-22 embodies a common-law exception that permits the trial court to correct an illegal sentence or other illegal disposition.... Thus, if the defendant cannot demonstrate that his motion to correct falls within the purview of § 43-22, the court lacks jurisdiction to entertain it . [I]n order for the court to have jurisdiction over a motion to correct an illegal sentence after the sentence has been executed, the sentencing proceeding [itself] . must be the subject of the attack." (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Robles , 169 Conn.App. 127, 131-32, 150 A.3d 687 (2016), cert. denied, 324 Conn. 906, 152 A.3d 544 (2017). "[A]n illegal sentence is essentially one [that] either exceeds the relevant statutory maximum limits, violates a defendant's right against double jeopardy, is ambiguous, or is internally contradictory. By contrast . [s]entences imposed in an illegal manner have been defined as being within the relevant statutory limits but . imposed in a way [that] violates [a] defendant's right . to be addressed personally at sentencing and to speak in mitigation of punishment . or his right to be sentenced by a judge relying on accurate information or considerations solely in the record , or his right that the government keep its plea agreement promises . These definitions are not exhaustive, however, and the parameters of an invalid sentence will evolve . as additional rights and procedures affecting sentencing are subsequently recognized under state and federal law." (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Cruz , 155 Conn.App. 644, 649, 110 A.3d 527 (2015) ; see State v. Parker , 295 Conn. 825, 839-40, 992 A.2d 1103 (2010). Recently, our Supreme Court explained, in addressing the trial court's dismissal on jurisdictional grounds of a motion to correct an illegal sentence that "[t]he subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings, including on appeal.... State v. Taylor , 91 Conn.App. 788, 791, 882 A.2d 682, cert. denied, 276 Conn. 928, 889 A.2d 819 (2005). At issue is whether the defendant has raised a colorable claim within the scope of Practice Book § 43-22 that would, if the merits of the claim were reached and decided in the defendant's favor, require correction of a sentence . Id., at 793, 882 A.2d 682. In the absence of a colorable claim requiring correction, the trial court has no jurisdiction to modify the sentence . See id., at 793-94, 882 A.2d 682." (Emphasis added; internal quotation marks omitted.) State v. Delgado , 323 Conn. 801, 810, 151 A.3d 345 (2016). Therefore, as made clear by our Supreme Court in Delgado , for the trial court to have jurisdiction over a defendant's motion to correct a sentence that was imposed in an illegal manner, the defendant must put forth a colorable claim that his sentence, in fact, was imposed in an illegal manner. A colorable claim is "[a] claim that is legitimate and that may reasonably be asserted, given the facts presented and the current law (or a reasonable and logical extension or modification of the current law)." Black's Law Dictionary (10th Ed. 2014), p. 302. For jurisdictional purposes, to establish a colorable claim, a party must demonstrate that there is a possibility, rather than a certainty, that a factual basis necessary to establish jurisdiction exists; see State v. Patel , 174 Conn.App. 298, 310-11, 166 A.3d 727 (2017) ; such as, in the present context, that the sentencing court relied on inaccurate information or considerations that were outside of the record. In the present case, the defendant claims that the court improperly dismissed his motion to correct a sentence that was imposed in an illegal manner. He argues that the motion clearly fell within Practice Book § 43-22, in that he properly alleged that the sentencing court violated his right to be sentenced by a judge relying on accurate information or considerations solely in the record. We disagree and conclude that the defendant's motion, on its face, does not fall within the limited circumstances under which the trial court has jurisdiction to correct a sentence imposed in an illegal manner. See State v. Delgado , supra, 323 Conn. at 816, 151 A.3d 345 (if defendant fails to allege claim that, if proven, would require resentencing, sentencing court has no jurisdiction to consider motion to correct). In other words, because the court's statements cannot reasonably be viewed as relying on inaccurate facts or facts outside the record, the defendant's claim does not raise even the possibility that the sentencing court relied on inaccurate or extrarecord facts. Thus, his claims fell outside the purview of a sentence imposed in an illegal manner. Accordingly, we conclude that the trial court properly concluded that it did not have subject matter jurisdiction to entertain the motion. Here, the record establishes that the sentencing court commented on the seriousness of the defendant's actions and the court gave its opinion that the defendant refused to take responsibility for his actions. As set forth previously in this opinion, the sentencing court commented specifically to the defendant that, on the basis of the facts of this case, the unlawful restraint conviction was separate and apart from the sexual assault conviction, that the facts supporting the unlawful restraint conviction demonstrated that it was akin to a lesser included offense to a kidnapping charge, and that, had the defendant been charged with and convicted of kidnapping, he would have received a greater sentence. Those comments were based on the facts of the case , however, not on anything outside the record. Also, given the facts of this case, where the defendant detained the victim in the car for what appeared to be a longer period than necessary to commit the sexual assault, the court's comments were not inaccurate. See Farmer v. Commissioner of Correction , 165 Conn.App. 455, 459, 139 A.3d 767 ("[A] defendant may be convicted of both kidnapping and another substantive crime if, at any time prior to, during or after the commission of that other crime, the victim is moved or confined in a way that had independent criminal significance, that is, the victim was restrained to an extent exceeding that which was necessary to accomplish or complete the other crime. Whether the movement or confinement of the victim is merely incidental to and necessary for another crime will depend on the particular facts and circumstances of each case." [Internal quotation marks omitted.] ), cert. denied, 323 Conn. 905, 150 A.3d 685 (2016). Accordingly, we agree with the trial court's assessment that the sentencing court merely was using a rhetorical device to try to convey to the defendant the seriousness of his actions and the fact that, had additional charges been brought by the state, based solely on the evidence presented at the defendant's trial, the defendant could have been convicted of more serious offenses and also subject to greater penalties. Thus, the defendant's allegation that the sentencing court imposed his sentence in an illegal manner by referencing and relying on information that was not in the record simply has no basis in fact. Indeed, a review of the statements to which the defendant specifically cites reveal nothing more than a rhetorical admonition by the sentencing court regarding the facts of the case, the opinion of the judge regarding the seriousness of the defendant's criminal actions, and the defendant's failure to take responsibility for those actions. The defendant did not allege anything that reasonably could be viewed, on its face, as inaccurate or outside of the record. Thus, we agree with the trial court that it was without jurisdiction to consider the defendant's motion to correct an illegal sentence. The judgment is affirmed. In this opinion the other judges concurred. The court, in the alternative, also held that the motion failed on the merits. The defendant claims this, too, was error. We conclude that because the court dismissed the case for want of jurisdiction, it had no authority to also rule on the merits of the motion. See Fullerton v. Administrator, Unemployment Compensation Act, 280 Conn. 745, 754, 911 A.2d 736 (2006) ("[a] court lacks discretion to consider the merits of a case over which it is without jurisdiction" [internal quotation marks omitted] ); State v. Bozelko, 154 Conn.App. 750, 766, 108 A.3d 262 (2015) ("[o]nce the [trial] court determined that it lacked subject matter jurisdiction, it had no authority to decide the case"). "Once it becomes clear that the trial court lacked subject matter jurisdiction . any further discussion of the merits is pure dicta.... Lacking jurisdiction, the court should not deliver an advisory opinion on matters entirely beyond [its] power to adjudicate.... Such an opinion is not a judgment and is not binding on anyone." (Citations omitted; internal quotation marks omitted.) Shockley v. Okeke, 92 Conn.App. 76, 85, 882 A.2d 1244 (2005), appeal dismissed, 280 Conn. 777, 912 A.2d 991 (2007). Here, because the Superior Court determined that it lacked jurisdiction, it was improper for the court to address the merits of the motion. Its alternative conclusions in that regard, therefore, are mere dicta, lacking the force and effect of a judgment, and are void. Following its attempts to explain to the defendant that the facts of his case were serious, the sentencing court then proceeded to sentence the defendant to a permissible term of imprisonment on the specific crimes for which he had been charged and convicted. Then, in accordance with General Statutes § 53a-37, the court ordered those sentences to run consecutively. General Statutes § 53a-37 provides: "When multiple sentences of imprisonment are imposed on a person at the same time, or when a person who is subject to any undischarged term of imprisonment imposed at a previous time by a court of this state is sentenced to an additional term of imprisonment, the sentence or sentences imposed by the court shall run either concurrently or consecutively with respect to each other and to the undischarged term or terms in such manner as the court directs at the time of sentence. The court shall state whether the respective maxima and minima shall run concurrently or consecutively with respect to each other, and shall state in conclusion the effective sentence imposed. When a person is sentenced for two or more counts each constituting a separate offense, the court may order that the term of imprisonment for the second and subsequent counts be for a fixed number of years each. The court in such cases shall not set any minimum term of imprisonment except under the first count, and the fixed number of years imposed for the second and subsequent counts shall be added to the maximum term imposed by the court on the first count."

12490936

STATE of Connecticut v. Zane R. MEGOS

State v. Megos

2017-09-05

AC 38967.

120

132

170 A.3d 120

170

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:26.796983+00:00

Fastcase

STATE of Connecticut v. Zane R. MEGOS

STATE of Connecticut v. Zane R. MEGOS AC 38967. Appellate Court of Connecticut. Argued May 17, 2017 Officially released September 5, 2017 Kenneth A. Leary, for the appellant (defendant). Margaret Gaffney Radionovas, senior assistant state's attorney, with whom, on the brief, were Michael L. Regan, state's attorney, and Rafael I. Bustamante, assistant state's attorney, for the appellee (state). Lavine, Mullins and Beach, Js.

4606

28723

MULLINS, J. The defendant, Zane R. Megos, appeals from the judgment of the trial court revoking his probation pursuant to General Statutes § 53a-32 and imposing a sentence of sixty months incarceration. On appeal, the defendant claims that the trial court: (1) erroneously found that he violated the conditions of his probation, (2) abused its discretion by admitting evidence of prior crimes that he had committed, and (3) abused its discretion by revoking his probation. We affirm the judgment of the trial court. The following facts and procedural history are relevant to our consideration of the defendant's claims on appeal. On April 29, 2014, the defendant pleaded guilty under the Alford doctrine to six counts of larceny in the fourth degree in violation of General Statutes § 53a-119 and 53a-125 (a). His conviction on two of those larceny counts arose from incidents in which the defendant wrongfully obtained and withheld cash "deposits" from the victims by falsely promising to rent them an apartment or sell them a house. In the first incident, the defendant received $1600 from a disabled, wheelchair-bound woman as a deposit on an apartment that he had advertised on Craigslist. The defendant told the victim that she would be able to move in on the first day of the month, but the apartment was not ready on that date. The defendant continued to tell the victim that the apartment would be ready at various dates in the future, but the apartment never was available when those dates arrived. The defendant did not return the victim's deposit, despite her request that he do so. In the second incident, the defendant obtained $4550 from another victim as a deposit on the purchase of a house. Several months after taking the deposit, the house was sold to someone else, and the defendant kept the victim's money. After pleading guilty to six larceny charges, the defendant was sentenced to six years incarceration, execution suspended, followed by three years of probation. The terms of the defendant's probation, which he signed on April 29, 2014, included the standard condition that he "not violate any criminal law of the United States, this state or any other state or territory." The defendant's probation began on April 29, 2014. Several months after his probation began, the defendant was involved in another incident in which he was alleged to have wrongfully obtained a deposit for a sham real estate transaction. Sometime in October, 2014, the defendant posted an online advertisement offering an apartment in Norwich for rent. At the time that the defendant posted that advertisement, however, the advertised apartment was condemned. On October 29, 2014, the defendant met with Nicole Foster. Foster, who was a disabled mother, was seeking to rent the apartment advertised by the defendant because a fire had destroyed her family's house in September, 2014. The defendant allowed Foster to view the apartment and told her that she would need to provide him with a cash deposit on that same day. Although she did not have the full deposit at that moment, Foster decided to rent the apartment advertised by the defendant and with her father, gave the defendant $500 in cash. Later that day, Foster tendered the rest of the cash deposit, totaling $2925 to the defendant. In return, the defendant gave Foster three receipts that had been presigned by the defendant's business partner, Bishop Taylor. According to the defendant, he and Taylor agreed to use receipts signed only by Taylor because the Norwich Building Department had a "vendetta" against the defendant: "We didn't want to draw attention to the building department [that] I was involved in the building. We didn't want them coming out and writing . up the wazoo . new [building code] violations.... It wasn't with intent to defraud. I said to [Taylor] we're not gonna get this through if it's in my name." Upon examining the receipts, Foster's father told the defendant that he could not read "what your first name is," and the defendant answered "Bishop." (Emphasis added.) At this meeting, the defendant also informed Foster that the apartment was not ready because the city needed to perform inspections. The defendant had represented to Foster that an inspection would occur on several different dates. No inspections had been scheduled for the premises, however, until more than a month later on December 12, 2014. On November 10, 2014, Foster spoke with an employee at the Norwich Building Department and learned that the man to whom she had given her deposit actually was the defendant, not Taylor. She also learned that no inspections were scheduled for the premises. Thereafter, Foster and her father confronted the defendant and requested the return of the deposit, which the defendant subsequently returned to Foster. On August 4, 2015, as a result of the incident with Foster, the defendant was arrested for larceny in the third degree in violation of General Statutes § 53a-124, and criminal impersonation in violation of General Statutes § 53a-130. On the basis of his arrest for those alleged crimes, the defendant was charged with violating the terms of his April, 2014 probation. A violation of probation hearing was held over the course of four days during February, 2016. In an oral ruling, the court found, by a preponderance of the evidence, that the defendant had violated his probation by committing the crimes of criminal impersonation and larceny in the third degree. The court then revoked the defendant's probation and sentenced him to sixty months incarceration for the violation. The court reasoned that the defendant had failed to take "full advantage" of his probation and had "instead decided . to defraud and to deceive the people who needed immediate housing." Specifically, the court found that the defendant was "not amenable to probation, based on [his] similar criminal conduct within months of the start of [his] probationary period." This appeal followed. Additional facts will be set forth as necessary. As a preliminary matter, we set forth the general principles of law pertaining to revocation of probation proceedings. "[R]evocation of probation hearings, pursuant to § 53a-32, are comprised of two distinct phases, each with a distinct purpose.... In the evidentiary phase, [a] factual determination by a trial court as to whether a probationer has violated a condition of probation must first be made.... In the dispositional phase, [i]f a violation is found, a court must next determine whether probation should be revoked because the beneficial aspects of probation are no longer being served." (Internal quotation marks omitted.) State v. Maurice M. , 303 Conn. 18, 25-26, 31 A.3d 1063 (2011). With respect to the evidentiary phase of a revocation proceeding, "[t]o support a finding of probation violation, the evidence must induce a reasonable belief that it is more probable than not that the defendant has violated a condition of his or her probation.... A fact is more probable than not when it is supported by a fair preponderance of the evidence.... [T]he purpose of a probation revocation hearing is to determine whether a defendant's conduct constituted an act sufficient to support a revocation of probation . rather than whether the defendant had, beyond a reasonable doubt, violated a criminal law. The proof of the conduct at the hearing need not be sufficient to sustain a violation of a criminal law." (Citation omitted; internal quotation marks omitted.) State v. Sherrod , 157 Conn.App. 376, 382-83, 115 A.3d 1167, cert. denied, 318 Conn. 904, 122 A.3d 633 (2015). Thus, "a probation violation need be proven only by a preponderance of the evidence ." (Emphasis added.) State v. Rollins , 51 Conn.App. 478, 483, 723 A.2d 817 (1999). Regarding the second phase of a revocation proceeding, the dispositional phase, if the trial court "determines that the evidence has established a violation of a condition of probation, then it proceeds to . the determination of whether the defendant's probationary status should be revoked. On the basis of its consideration of the whole record, the trial court may continue or revoke the sentence of probation . [and] . require the defendant to serve the sentence imposed or impose any lesser sentence.... In making this second determination, the trial court is vested with broad discretion." (Internal quotation marks omitted.) State v. Sherrod , supra, 157 Conn.App. at 381-82, 115 A.3d 1167. I The defendant first claims that the trial court's finding that he violated the conditions of his probation requiring him not to violate any criminal law is clearly erroneous. This claim essentially consists of three separate challenges to the court's finding of a violation. Specifically, the defendant argues that the state did not establish, by a preponderance of the evidence, that he (1) committed criminal impersonation, (2) committed larceny in the third degree, and (3) "wilfully and intentionally violated his probation or any laws ." We consider these three challenges seriatim and conclude that they all are without merit. A The defendant's first challenge to the court's finding that he violated his probation is that the evidence fails to demonstrate that he committed criminal impersonation. We disagree. We begin our analysis of the defendant's claim by setting forth our well settled standard of review. "This court may reverse the trial court's initial factual determination that a condition of probation has been violated only if we determine that such a finding was clearly erroneous.... 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.... In making this determination, every reasonable presumption must be given in favor of the trial court's ruling." (Internal quotation marks omitted.) State v. Sherrod , supra, 157 Conn.App. at 382, 115 A.3d 1167. Our analysis also is informed by a review of the statutory elements of the crime of criminal impersonation. "A person is guilty of criminal impersonation when such person: (1) Impersonates another and does an act in such assumed character with intent to obtain a benefit or to injure or defraud another ." (Emphasis added.) General Statutes § 53a-130 (a). After applying the applicable law to the record before us, we conclude that the trial court's finding that the defendant had violated his probation by committing criminal impersonation was not clearly erroneous. There was evidence presented that, prior to meeting with Foster, the defendant had defrauded two other victims by wrongfully retaining cash deposits for sham real estate transactions. In an apparent attempt to repeat this scam, the defendant met with Foster, offering to rent her a condemned apartment. When Foster agreed to rent the apartment, the defendant insisted on an immediate cash deposit. The defendant also told Foster that, although the apartment was not yet ready, it would soon be inspected. Afterward, Foster learned that the apartment was never scheduled for an inspection, and, when she confronted the defendant about this, he returned her deposit. As part of the defendant's scheme to defraud Foster, the defendant impersonated his business partner, Bishop Taylor. The defendant gave Foster receipts presigned by Taylor in order to avoid "draw[ing] attention to the building department [that] [he] was involved in the building." Furthermore, when asked directly for his name, the defendant replied, "Bishop," instead of his actual name. Accordingly, we conclude that it was not clearly erroneous for the court to find that the defendant had violated the terms of his probation by impersonating another person and acting in such assumed character with the intent to defraud Foster. B The defendant next argues that it was clearly erroneous for the court to find that he had violated his probation by having committed larceny in the third degree. We disagree. We begin our analysis of the defendant's second challenge to the court's finding that he violated his probation by reviewing the statutory elements of larceny in the third degree. "A person is guilty of larceny in the third degree when he commits larceny, as defined in section 53a-119, and . (2) the value of the property or service exceeds two thousand dollars ." General Statutes § 53a-124 (a). Pursuant to § 53a-119 : "A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner." Larceny includes obtaining property by false promises. "A person obtains property by false promise when, pursuant to a scheme to defraud, he obtains property of another by means of a representation, express or implied, that he . will in the future engage in particular conduct, and when he does not intend to engage in such conduct . In any prosecution for larceny based upon a false promise, the defendant's intention or belief that the promise would not be performed may not be established by or inferred from the fact alone that such promise was not performed." General Statutes § 53a-119 (3). After applying the applicable law to the record before us, we conclude that the trial court's finding that the defendant had violated the terms of his probation by having committed larceny in the third degree was not clearly erroneous. There was evidence presented that the defendant obtained $2925 from Foster by falsely promising to rent her a condemned apartment. As previously set forth in considerable detail, the defendant had perpetrated several schemes in the past in which he defrauded victims by falsely promising to rent or to sell them property in exchange for a cash deposit. In one of those prior incidents, the defendant promised a victim an apartment that he never made ready for her to occupy, and he kept her deposit. Thus, the court could have inferred that the defendant intended to do the same with Foster, i.e., permanently deprive her of the deposit by falsely promising a condemned apartment that would never be ready for her to occupy. Accordingly, we conclude that it was not clearly erroneous for the court to find that the defendant had violated his probation on the foregoing basis. We are unpersuaded by the defendant's contention that the court improperly disregarded evidence suggesting that he did not commit larceny in the third degree. The defendant argues that the trial court should have credited evidence he presented that tended to show that he had not intended to permanently deprive Foster of her money. The defendant, however, did not return the deposit until Foster explicitly asked for it back. In any event, the defendant's argument must fail because, as previously explained in this opinion, "[i]t is the exclusive province of the trier of fact to weigh conflicting testimony and make determinations of credibility, crediting some, all or none of any given witness' testimony." (Internal quotation marks omitted.) State v. Allen , 289 Conn. 550, 559, 958 A.2d 1214 (2008). C The defendant's final challenge to the court's finding that he violated his probation is that the state did not establish that he "wilfully and intentionally violated his probation or any laws ." This claim is without merit. Our Supreme Court has stated unequivocally that "the language of [ § 53a-32 ] demonstrates that the legislature did not intend to make wilfulness an element of a probation violation." State v. Hill , 256 Conn. 412, 420, 773 A.2d 931 (2001). "[T]o establish a violation, the state needs only to establish that the probationer knew of the condition and engaged in conduct that violated the condition." Id., at 424, 773 A.2d 931. In the present case, the defendant does not dispute that he knew that as a condition of his probation, he could not violate this state's criminal laws. Furthermore, we already have concluded in parts I A and B of this opinion that the defendant engaged in conduct that violated this state's criminal laws and, therefore, a condition of his probation. Accordingly, we conclude that it was not clearly erroneous for the trial court to find that the defendant violated the terms of his probation. II The defendant's second claim is that the court improperly admitted evidence of other crimes that he had committed. The defendant argues that the court, pursuant to § 4-5 (c) of the Connecticut Code of Evidence, erred by admitting testimony concerning two of his six prior convictions for larceny in the fourth degree. The state argues, in part, that the rules of evidence do not apply in violation of probation hearings, and, therefore, the evidence did not have to satisfy § 4-5 (c) of the Connecticut Code of Evidence to be admissible. We agree with the state. The following additional facts and procedural history are relevant to the resolution of the defendant's claim. The state called Chief Probation Officer Tamara Lanier to testify regarding two of the defendant's prior larceny convictions. Defense counsel objected, claiming that the prior convictions were not relevant and would be prejudicial. The prosecutor argued that the state intended to offer the testimony to show a common scheme or plan. The court overruled defense counsel's objection, citing § 4-5 (c) of the Connecticut Code of Evidence. After Lanier had testified regarding the defendant's having taken $1600 from a disabled woman, defense counsel renewed his objection to Lanier's testimony. The court overruled the objection again, based on the same provision of the Connecticut Code of Evidence. Lanier then explained the facts of the failed real estate sale, when the defendant did not return a prospective buyer's deposit despite the fact that the house had been sold to another party. At this point, defense counsel objected again. The court overruled the objection, stating that the testimony "is relevant to the present proceedings insofar as the basis for the alleged violation of probation is somewhat similar to the two incidents that were just reported by Chief Lanier." We begin by stressing that the Connecticut Code of Evidence does not apply to proceedings involving probation. Section 1-1 (d) (4) of the Connecticut Code of Evidence specifically provides: "The Code, other than with respect to privileges, does not apply in proceedings such as, but not limited to, the following . Proceedings involving probation." "It is well settled that probation proceedings are informal and that strict rules of evidence do not apply to them.... Hearsay evidence may be admitted in a probation revocation hearing if it is relevant, reliable and probative.... At the same time, [t]he process . is not so flexible as to be completely unrestrained; there must be some indication that the information presented to the court is responsible and has some minimal indicia of reliability." (Citation omitted; internal quotation marks omitted.) State v. Lanagan , 119 Conn.App. 53, 58, 986 A.2d 1113 (2010). "The evidentiary standard for probation violation proceedings is broad.... [T]he court may . consider the types of information properly considered at an original sentencing hearing because a revocation hearing is merely a reconvention of the original sentencing hearing.... The court may, therefore, consider hearsay information, evidence of crimes for which the defendant was indicted but neither tried nor convicted, evidence of crimes for which the defendant was acquitted, and evidence of indictments or informations that were dismissed." (Citation omitted; internal quotation marks omitted.) State v. Young , 81 Conn.App. 710, 716, 841 A.2d 737, cert. denied, 269 Conn. 901, 852 A.2d 733 (2004). Regarding challenges to the trial court's evidentiary rulings, our standard of review "is that these rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.... In reviewing claims that the trial court abused its discretion, great weight is given to the trial court's decision and every reasonable presumption is given in favor of its correctness.... We will reverse the trial court's ruling only if it could not reasonably conclude as it did." (Internal quotation marks omitted.) State v. Bullock , 155 Conn.App. 1, 38, 107 A.3d 503, cert. denied, 316 Conn. 906, 111 A.3d 882 (2015). The evidence presented regarding the defendant's prior crimes was relevant. "[R]elevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue." (Internal quotation marks omitted.) State v. Mark , 170 Conn.App. 254, 262, 154 A.3d 572, cert. denied, 324 Conn. 926, 155 A.3d 1269 (2017). Indeed, in order to prove that the defendant committed larceny in the third degree, the state needed to prove that the defendant took a deposit from Foster for a property that was not available and that he intended to keep that deposit. Each incident involved the defendant taking a deposit for a unit that was not available for occupancy. In the prior two incidents, the defendant refused to return the deposits. Those prior crimes support the inference that the defendant intended to keep Foster's deposit. On the basis of the similarity between the past crimes and the present incident, the court found the testimony to be relevant. After reviewing the record, we conclude that the court did not abuse its discretion in admitting the evidence regarding the defendant's prior crimes of larceny in the fourth degree. The facts of the prior crimes were sufficiently similar to the present circumstances to be relevant. III The defendant's final claim is that the trial court abused its discretion in revoking his probation and imposing a sentence of sixty months incarceration. We disagree. "The standard of review of the trial court's decision at the sentencing phase of the revocation of probation hearing is whether the trial court exercised its discretion properly by reinstating the original sentence and ordering incarceration.... 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.... On the basis of its consideration of the whole record, the trial court may continue or revoke the sentence of probation . [and] . require the defendant to serve the sentence imposed or impose any lesser sentence.... In making this second determination, the trial court is vested with broad discretion.... In determining whether to revoke probation, the trial court shall consider the beneficial purposes of probation, namely rehabilitation of the offender and the protection of society.... The important interests in the probationer's liberty and rehabilitation must be balanced, however, against the need to protect the public." (Internal quotation marks omitted.) State v. Francis , 146 Conn.App. 448, 453-54, 76 A.3d 744, cert. denied, 310 Conn. 960, 82 A.3d 628 (2013). The record reveals that the trial court balanced the defendant's liberty and rehabilitation against the protection of society. Specifically, the court noted that the defendant was "not amenable to probation, based on [his] similar criminal conduct within months of the start of [his] probationary period." The court considered the need to protect the public from the defendant's conduct, recognizing that the defendant's latest victim was a woman in need of immediate housing. It was within the court's discretion to impose the remainder of the defendant's sentence, and we do not find the court's imposition of a sixty-month sentence to be unjust, excessive, or an abuse of the court's discretion. The judgment is affirmed. In this opinion the other judges concurred. See North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). General Statutes § 53a-119 provides in relevant part: "A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner." General Statutes § 53a-125 provides in relevant part: "(a) A person is guilty of larceny in the fourth degree when he commits larceny as defined in section 53a-119 and the value of the property or service exceeds one thousand dollars." General Statutes § 53a-124 provides in relevant part: "(a) A person is guilty of larceny in the third degree when he commits larceny, as defined in section 53a-119, and . (2) the value of the property or service exceeds two thousand dollars ." General Statutes § 53a-130 provides in relevant part: "(a) A person is guilty of criminal impersonation when such person: (1) Impersonates another and does an act in such assumed character with intent to obtain a benefit or to injure or defraud another ." The court also found that the state proved by a preponderance of the evidence that the defendant committed attempt to commit larceny in the third degree. The taking of Foster's deposit was the basis of the attempt to commit larceny and the completed larceny. Thus, the attempted larceny does not appear to be a separate and independent basis supporting the court's judgment. Also, on appeal both the defendant and the state exclusively address the completed act of larceny. Therefore, we do not address the court's mention of the attempt to commit larceny. The gravamen of the defendant's first challenge to the court's finding that he violated his probation appears to be that there was conflicting testimony regarding whether he impersonated his business partner. Foster testified that her father told the defendant that he could not "read what your first name is" and asked him for his first name. (Emphasis added.) In contrast, the defendant testified that he heard her father ask him, "who is the owner?" Thus, according to the defendant, he simply was identifying the name of the owner on the receipt, not impersonating someone else. We reject this argument because "[i]t is the exclusive province of the trier of fact to weigh conflicting testimony and make determinations of credibility, crediting some, all or none of any given witness' testimony." (Internal quotation marks omitted.) State v. Allen, 289 Conn. 550, 559, 958 A.2d 1214 (2008). As the trier of fact, the court was free to credit the testimony indicating that the defendant impersonated his business partner. Indeed, the trial court expressly found the defendant not to be credible: "[T]he court notes that [the defendant] himself conceded that he is a felon with a history of convictions for crimes of dishonesty, but it is his present criminal conduct, rather than his criminal past, that causes the court to disbelieve his testimony. His substantially similar criminal conduct from years past, however, remains an unavoidable, additional obstacle that his attempt at credibility cannot overcome." Within this claim, the defendant also appears to repeat his arguments that the court erroneously found that he committed the crimes of criminal impersonation and larceny in the third degree. These arguments already have been addressed, and they warrant no further discussion. See parts I A and B of this opinion. Section 4-5 (c) of the Connecticut Code of Evidence provides in relevant part: "Evidence of other crimes, wrongs or acts of a person is admissible . to prove intent, identity, malice, motive, common plan or scheme, absence of mistake or accident, knowledge, a system of criminal activity, or an element of the crime, or to corroborate crucial prosecution testimony." The trial court incorrectly referred to § 4-5 (b). Section 4-5 of the Connecticut Code of Evidence was amended in 2011, and subsection (b) involves the admissibility of other sexual misconduct to establish that the defendant had a tendency or propensity to engage in sexual misconduct. The court's reference to subsection (b) is understood to refer to subsection (c).

12490422

ELLEN S. v. KATLYN F.

Southern v. Katlyn F.

2017-08-15

(AC 38871).

1182

1186

167 A.3d 1182

167

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.022978+00:00

Fastcase

ELLEN S. v. KATLYN F.

ELLEN S. v. KATLYN F. (AC 38871). Appellate Court of Connecticut. Argued May 25, 2017 Officially released August 15, 2017 Cody A. Layton, with whom, on the brief, was Drzislav Coric, New London, for the appellant (defendant). Keller, Prescott and Bear, Js. In accordance with our policy of protecting the privacy interest of the applicant for a protective order, we decline to identify the applicant or others through whom the applicant's identity may be ascertained.

2485

14956

PER CURIAM. The defendant, Katlyn F., appeals from the judgment of the trial court granting the application for a civil protection order filed by the plaintiff, Ellen S. The defendant claims that the court improperly determined "that there were reasonable grounds to believe that the defendant had stalked the plaintiff and would continue to do so in the absence of an order of protection." We affirm the judgment of the trial court. The record reveals the following facts. On January 6, 2016, the plaintiff filed an application for an order of civil protection against the defendant. In her application, she alleged in relevant part that she had been the victim of stalking. In her application, she described two occasions in which she was subjected to what she characterized as "immature behavior" by the defendant. On one occasion, the defendant yelled at her and almost overturned a table in her direction. On the other occasion, the defendant shoved her using both hands. She alleged that other encounters had occurred, but did not provide details about them. The plaintiff requested that the court order that the defendant (1) not assault, threaten, abuse, harass, follow, interfere with or stalk her; (2) stay away from her home; (3) not contact her in any manner; and (4) stay 100 yards away from her. The court granted the application and issued an ex parte civil protection order. The court held a hearing on the application on January 19, 2016. This was a joint hearing during which the court also considered an application for a civil restraining order against the defendant that was brought by the plaintiff's boyfriend, the court's denial of which is not a subject of this appeal. It was not disputed that the plaintiff's boyfriend is the defendant's former boyfriend. At the hearing, the plaintiff testified with respect to four separate and distinct incidents, which occurred during an approximately three year period of time, involving herself and the defendant: the first incident occurred at a restaurant referred to as the Harp and Dragon in December, 2015; the second incident occurred at a restaurant referred to as Hot Rod's in December, 2014; the third incident occurred at an establishment referred to as the Oasis Pub; and the fourth incident occurred at a friend's house in the summer of 2014. At the hearing, the court heard testimony from the plaintiff, the plaintiff's boyfriend, the defendant, and a mutual friend of the parties. At the conclusion of the hearing, the court granted the plaintiff's application. The court ordered that the defendant "not assault, threaten, abuse, harass, follow, interfere with or stalk the [plaintiff] with regard to that matter. That order is [going to] be in effect for six months from this date ." This appeal followed. The defendant argues that, in granting the plaintiff relief under General Statutes (Rev. to 2015) § 46b-16a, the court erroneously found that there were reasonable grounds to believe that she committed acts to warrant issuance of the civil protective order and that she will continue to commit such acts or acts designed to intimidate or retaliate against the applicant. The defendant argues that the court "erred in its interpretation of and application of the law to the facts." In so doing, the defendant first argues that it is reasonable to infer that the court based its decision on a finding that she committed acts constituting stalking in the second degree as described in General Statutes (Rev. to 2015) § 53a-181d, and, she argues, the evidence presented at the hearing did not support such a finding. Second, the defendant argues that "[n]o evidence was presented by either party that would indicate that [she] would continue to commit the acts she has been accused of." The defendant asks this court to reverse the court's judgment and to remand the case to the trial court with direction to deny the plaintiff's application. Initially, we observe that the defendant's appendix does not contain a copy of the trial court's decision. "It is the responsibility of the appellant to provide an adequate record for review. The appellant shall determine whether the entire record is complete, correct and otherwise perfected for presentation on appeal." Practice Book § 61-10(a) ; see also Practice Book § 60-5 ("[i]t is the responsibility of the appellant to provide an adequate record for review as provided in [§] 61-10"). The appellant bears the responsibility for providing this court with an appendix that, in part one, "shall contain . opinions or decisions of the trial court ." Practice Book § 67-8(b)(1). For reasons that should be obvious, this noncompliance with the rules of appellate procedure is an impediment to this court's review of the defendant's brief as well as the trial court's decision. Next, we observe that a copy of the trial court's decision does not appear in the court file. The court's rendering of judgment in favor of the plaintiff in this matter constitutes a final judgment. Pursuant to Practice Book § 64-1(a), the trial court was required "[to] state its decision either orally or in writing . The court's decision shall encompass its conclusion as to each claim of law raised by the parties and the factual basis therefor. If oral, the decision shall be recorded by a court reporter, and, if there is an appeal, the trial court shall create a memorandum of decision for use in the appeal by ordering a transcript of the portion of the proceedings in which it stated its oral decision. The transcript of the decision shall be signed by the trial judge and filed with the clerk of the trial court. ." Pursuant to Practice Book § 64-1(b), "[i]f the trial judge fails to file a memorandum of decision or sign a transcript of the oral decision in any case covered by subsection (a), the appellant may file with the appellate clerk a notice that the decision has not been filed in compliance with subsection (a). The notice shall specify the trial judge involved and the date of the ruling for which no memorandum of decision was filed. The appellate clerk shall promptly notify the trial judge of the filing of the appeal and the notice. The trial court shall thereafter comply with subsection (a)." Our review of the court file reflects that the defendant did not attempt to rectify the record by filing a motion pursuant to Practice Book § 64-1(b) with the appellate clerk. The defendant's failure leaves this court without a ready means of identifying the trial court's decision. The defendant has failed to obtain a memorandum of decision from the court and has failed to include it in the appendix to her brief. The defendant, however, has filed with the appellate clerk a transcript from the court proceeding on January 19, 2016. In challenging the factual and legal basis of the court's decision, the defendant cites to the transcript and refers to statements made by the court that appear in the transcript. "When the record does not contain either a memorandum of decision or a transcribed copy of an oral decision signed by the trial court stating the reasons for its decision, this court frequently has declined to review the claims on appeal because the appellant has failed to provide the court with an adequate record for review.... Moreover, [t]he requirements of Practice Book § 64-1 are not met simply by filing with the appellate clerk a transcript of the entire trial court proceedings.... Despite an appellant's failure to satisfy the requirements of . § 64-1, this court has, on occasion, reviewed claims of error in light of an unsigned transcript as long as the transcript contains a sufficiently detailed and concise statement of the trial court's findings." (Citations omitted; internal quotation marks omitted.) Stechel v. Foster , 125 Conn.App. 441, 445, 8 A.3d 545 (2010), cert. denied, 300 Conn. 904, 12 A.3d 572 (2011) ; see also JP Morgan Chase Bank v. Gianopoulos , 131 Conn.App. 15, 20-21, 30 A.3d 697 (court may determine that unsigned transcript contains sufficiently detailed and concise statement of trial court's findings), cert. denied, 302 Conn. 947, 30 A.3d 2 (2011). Our review of the transcript does not reveal a sufficiently detailed and concise statement of the court's findings. "It is well settled that [w]e do not presume error; the trial court's ruling is entitled to the reasonable presumption that it is correct unless the party challenging the ruling has satisfied its burden demonstrating the contrary." (Internal quotation marks omitted.) State v. Milner , 325 Conn. 1, 13, 155 A.3d 730 (2017). "Our role is not to guess at possibilities . but to review claims based on a complete factual record developed by a trial court.... Without the necessary factual and legal conclusions furnished by the trial court . any decision made by us respecting [the defendant's] claims would be entirely speculative." (Internal quotation marks omitted.) Stacy B. v. Robert S. , 165 Conn.App. 374, 382, 140 A.3d 1004 (2016). On the basis of our careful review of the limited record provided to us by the defendant, we disagree that the court committed any legal or factual error in reaching the decision that it did. The scant record before us does not reflect the errors claimed by the defendant. See, e.g., Murcia v. Geyer , 151 Conn.App. 227, 231, 93 A.3d 1189 ("we are constrained to conclude, on the basis of our review of the limited record provided to us, that the court acted reasonably"), cert. denied, 314 Conn. 917, 100 A.3d 406 (2014) ; Lucarelli v. Freedom of Information Commission , 136 Conn.App. 405, 411, 46 A.3d 937 ("[t]here is nothing in the record before us from which we can conclude that court abused its discretion"), cert. denied, 307 Conn. 907, 53 A.3d 222 (2012). The judgment is affirmed. The plaintiff did not file a brief in connection with this appeal. We consider the appeal on the basis of the defendant's brief and the record. The expiration of a six month domestic violence restraining order issued pursuant to General Statutes § 46b-15 does not render an appeal from that order moot due to adverse collateral consequences. Putman v. Kennedy, 279 Conn. 162, 164-65, 900 A.2d 1256 (2006). We apply that principle to the order of civil protection here. General Statutes (Rev. to 2015) § 46b-16a provides in relevant part: "(a) Any person who has been the victim of sexual abuse, sexual assault or stalking, as described in sections 53a-181c, 53a-181d and 53a-181e, may make an application to the Superior Court for relief under this section, provided such person has not obtained any other court order of protection arising out of such abuse, assault or stalking and does not qualify to seek relief under section 46b-15. "(b) The application shall be accompanied by an affidavit made by the applicant under oath that includes a statement of the specific facts that form the basis for relief. Upon receipt of the application, if the allegations set forth in the affidavit meet the requirements of subsection (a) of this section, the court shall schedule a hearing not later than fourteen days from the date of the application. If the court is closed on the scheduled hearing date, the hearing shall be held on the next day the court is open and any ex parte order that was issued shall remain in effect until the date of such hearing. If the court finds that there are reasonable grounds to believe that the respondent has committed acts constituting grounds for issuance of an order under this section and will continue to commit such acts or acts designed to intimidate or retaliate against the applicant, the court, in its discretion, may make such orders as it deems appropriate for the protection of the applicant. If the court finds that there are reasonable grounds to believe that an imminent danger exists to the applicant, the court may issue an ex parte order granting such relief as it deems appropriate. In making such orders, the court, in its discretion, may consider relevant court records if the records are available to the public from a clerk of the Superior Court or on the Judicial Branch's Internet web site. Such orders may include, but are not limited to, an order enjoining the respondent from: (1) Imposing any restraint upon the person or liberty of the applicant; (2) threatening, harassing, assaulting, molesting, sexually assaulting or attacking the applicant; and (3) entering the dwelling of the applicant. "(c) No order of the court shall exceed one year, except that an order may be extended by the court upon proper motion of the applicant, provided a copy of the motion has been served by a proper officer on the respondent, no other order of protection based on the same facts and circumstances is in place and the need for protection, consistent with subsection (a) of this section, still exists...." General Statutes (Rev. to 2015) § 53a-181d provides in relevant part: "(a) For the purposes of this section, 'course of conduct' means two or more acts, including, but not limited to, acts in which a person directly, indirectly or through a third party, by any action, method, device or means, (1) follows, lies in wait for, monitors, observes, surveils, threatens, harasses, communicates with or sends unwanted gifts to, a person, or (2) interferes with a person's property. "(b) A person is guilty of stalking in the second degree when: "(1) Such person knowingly engages in a course of conduct directed at a specific person that would cause a reasonable person to fear for such person's physical safety or the physical safety of a third person; or "(2) Such person intentionally, and for no legitimate purpose, engages in a course of conduct directed at a specific person that would cause a reasonable person to fear that such person's employment, business or career is threatened, where (A) such conduct consists of the actor telephoning to, appearing at or initiating communication or contact at such other person's place of employment or business, provided the actor was previously and clearly informed to cease such conduct, and (B) such conduct does not consist of constitutionally protected activity...." In terms of relevant findings, the transcript reflects that the court stated only that the plaintiff "has sustained proof" and that "this is stalking." The court stated that it was "concerned with some of the incidents that . have occurred. I believe that the parties have been credible in describing the incidents."

12490421

Joseph COHEN v. Robert MEYERS, et. al.

Cohen v. Meyers

2017-08-15

AC 38737.

1157

1182

167 A.3d 1157

167

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.022978+00:00

Fastcase

Joseph COHEN v. Robert MEYERS, et. al.

Joseph COHEN v. Robert MEYERS, et. al. AC 38737. Appellate Court of Connecticut. Argued May 25, 2017 Officially released August 15, 2017 Christopher A. Klepps, with whom was Richard D. Carella, for the appellant-appellee (plaintiff). Melissa S. Harris and Michael F. Dowley, for the appellees-appellants (defendants). Sheldon, Beach and Mihalakos, Js.

11671

72453

SHELDON, J. In this case arising from a home construction contract, both parties appeal from the judgment of the trial court. The plaintiff, Joseph Cohen, brought this action against the defendants, Robert M. Meyers and Robert M. Meyers, Inc. (RMMI), stemming from a contract for the construction of a new home to be built by RMMI on a lot of land that Cohen had owned for many years prior to entering into said contract. Cohen's nine count revised complaint alleged the following claims against Meyers: breach of contract, fraud, unjust enrichment, violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., statutory theft in violation of General Statutes § 52-564, and conversion. Cohen alleged the following claims against RMMI: breach of contract, rescission, and violation of CUTPA. The defendants filed an answer denying Cohen's allegations or leaving him to his proof, set forth various special defenses, and asserted counterclaims for breach of contract, defamation, and intentional infliction of emotional distress. Cohen denied the special defenses advanced by the defendants in response to his complaint. Cohen also denied or left the defendants to their proof as to their counterclaims and asserted special defenses to those counterclaims, claiming abandonment and fraud as to the breach of contract counterclaim, and truth and privilege as to the defamation counterclaim. The defendants denied Cohen's special defenses. After a bench trial, the court, D. Sheridan, J. , filed a memorandum of decision in which it found in favor of Cohen on his CUTPA claim against RMMI, and awarded damages on that claim in the amount of $54,750. The court rejected all of Cohen's additional claims against the defendants. The court found in favor of RMMI on its counterclaim for breach of contract, but found that it had failed to prove damages resulting from that breach, and thus awarded it nominal damages in the amount of $1. The court found for Meyers on his defamation claim and awarded him noneconomic damages in the amount of $100,000. The court found in favor of Cohen on the defendants' counterclaim for the intentional infliction of emotional distress. The court declined to award punitive damages to either party. On appeal, Cohen challenges the court's judgment in favor of Meyers, individually, on his claims for fraud and violation of CUTPA, asserting that the court erred in declining to pierce RMMI's corporate veil. Cohen also claims that the court improperly held him liable for defamation because his speech was protected by the first amendment, he did not make any of the allegedly defamatory statements against Meyers with actual malice, the court employed the wrong legal standard in determining the issue of malice, and each of his allegedly defamatory statements was substantially true even though the burden of proof was assertedly on Meyers to prove that they were not. In their cross appeal, the defendants first claim that the court erred in awarding damages on the plaintiff's CUTPA claim against RMMI because he failed to prove that he suffered any actual loss or injury as a result of the CUTPA violation. Meyers also claims that the court erred in failing to award punitive damages on his defamation claim and in rejecting his claim for intentional infliction of emotional distress. We affirm the judgment of the trial court. The trial court found the following relevant facts. "In October, 1999, Cohen bought a parcel of undeveloped land within the town of Chester . known as 11 Kings Highway, with the intention of someday building a single-family home upon the property. "At the time of Cohen's purchase of . 11 Kings Highway, a 'driveway' surfaced with sand and crushed gravel and protected by adjacent drainage swales, had been in place since 1987. When Cohen bought the lot in 1999, his 'understanding' was that the land was 'a fully buildable lot,' with approvals in place. Cohen also referred in his testimony to the property as an 'approved building lot.' The only additional permit or approval he understood he needed prior to commencing construction was for a septic system, which would require a satisfactory percolation test. Cohen testified that, based on discussions with the Chester zoning enforcement officer, which occurred in 1999 and again in 2002, he continued to believe that-except for septic-all approvals were in place and he 'had no concerns' about his ability to build a house on the property using the existing driveway for access and the existing drainage swales for erosion control. "In 2005, the town of Chester Planning and Zoning Commission adopted new driveway regulations. While the existing driveway on the 11 Kings Highway property in Chester met the town's driveway requirements in place from 1987 to 2005, it did not comply with the requirements adopted in 2005. "In April, 2009, Cohen undertook to obtain a percolation test and septic design for the property, which was later approved. Around the same time, Cohen hired designer Brian Buckley to prepare plans for a single-family home to be built on his property in Chester. Buckley provided Cohen several names of general contractors to consider for the construction of the home, one of which was RMMI. At that time, in April, 2009, RMMI possessed a valid new home construction contractor ('NHCC') registration. "Robert M. Meyers is the president and sole shareholder of RMMI. At all times RMMI acted through Meyers, and Meyers has admitted that he had 'complete control and domination of all business and fiscal policies and procedures' of the corporation. "Beginning in April, 2009, there was an exchange of e-mail correspondence between Cohen and Meyers, on behalf of RMMI, which continued sporadically through January, 2010. During that time period, on October 1, 2009, RMMI's NHCC registration lapsed. Additional e-mails were exchanged from January 19, 2010 through July 28, 2010. During this time period, the parties worked out the basic aspects of their agreement, and RMMI provided a draft of a contract to Cohen. Of course, RMMI did not possess a valid NHCC registration while making any of these communications or conducting these negotiations. "In the last days of July, 2010, it became apparent that Cohen prepared to move forward with the building of the house. In preparation for the anticipated contract with Cohen, Meyers, on behalf of RMMI, took several actions. First, he reached an agreement with Cohen that the additional costs of land-clearing beyond that specified in their proposed written agreement would be split fifty-fifty. Cohen paid the sum of $1250 directly to the contractor, Stanley Burr, for one half the additional cost of the site-clearing cost of the property. Second, on July 30, 2010, Meyers renewed RMMI's NHCC registration. Third, on July 30, 2010, Meyers opened a commercial checking account at Citizens Bank in the name of RMMI. "On August 2, 2010, Cohen and RMMI signed the written 'Agreement,' which is appended to the complaint and was exhibit 1 at the trial. The first paragraph of the agreement clearly and explicitly states that the contracting parties are Cohen and RMMI: "AGREEMENT "This Agreement, made on this 2nd day of Aug. 2010, by and between Joseph M. Cohen ('Owner') of 1060 Shermer Rd. Apt. 16 Northbrook, IL 60062-3736 and Robert M. Meyers, Inc. of 843 Haddam Quarter Rd. Durham, Connecticut ('Builder'). "Consistent with this recitation, the agreement is signed-once again clearly and explicitly-by RMMI, acting through its President, Robert M. Meyers. . "Certain provisions of the agreement are especially pertinent to this dispute and it is worthwhile to set them out here in full: "1. DWELLING : The Builder shall perform the work and supply all the materials to construct a single family dwelling on the property with all site improvements substantially in accordance with SCHEDULE A, the house drawing plan and Site plan. And SCHEDULE B, the specifications. (Such dwelling shall be referred to as 'dwelling.') The Builder reserves the right to: (i) substitute any materials of like or better quality; (ii) make minor deviations from the drawing/plans and specifications; and (iii) in the event that there is a discrepancy between the drawing/plan and the specifications, the specifications shall control. . "3. PRICE AND PAYMENT SCHEDULE : The Owner agrees to pay the Builder the sum of $229,000.00 for the construction of the Dwelling and site improvements, time being of the essence regarding the date of payment. The price shall be paid as follows: a. $50,000.00 Upon execution of this agreement. b. $40,000.00 Upon installation of septic system and digging hole for foundation. c. $40,000.00 Upon pouring foundation and back-filling. d. $40,000.00 Upon the main structure being framed and roofing installed. e. $30,000.00 Upon siding and gypsum board being installed and rough mechanics being installed. f. $20,000.00 Upon installation of flooring, cabinets, and completion of interior painting and tile. g. Balance $9,000.00 Upon obtaining a Certificate of Occupancy. "Notwithstanding the foregoing if a Certificate of Occupancy is not issued as a result of anything outside of this agreement, then the final payment shall be due as if the Certificate of Occupancy was issued on the date the Certificate of Occupancy was denied. "In addition, the Owner acknowledges that there may be an additional cost not provided in this agreement for water service connection fees and Electric Power Company connection fees, including but not limited to any transformer, transformer Vaults, pull stations, etc., not shown on the site plan. . "12. ENTIRE AGREEMENT : The Parties acknowledge that this agreement contains the entire understanding, terms, and conditions between the parties. This agreement cannot be changed orally, but only by agreement in writing signed by the party against whom enforcement of any waiver, change, modification, or discharge is sought. . "15. REPRESENTATIONS : In addition to any other warranties or representations contained in this agreement, the Owner warrant[s] and represent [s] to the builder that: a. The property is an approved building lot and the builder will be able to obtain a building permit upon application and without having to comply with any special requirements of Planning and Zoning, inland-wetlands commission, or any other governmental or quasigovernmental agency having jurisdiction over this property except as set forth in this agreement. "At the time of the signing of the agreement, Cohen issued a check to RMMI for $50,000 in accordance with the 'PRICE AND PAYMENT SCHEDULE' of the agreement. The check was deposited into the Citizens Bank commercial checking account that had been opened a few days earlier. "Prior to entering into the agreement, RMMI did not provide the plaintiff a written notice pursuant to the New Home Construction Contractors Act [ (NHCCA) ], Connecticut General Statutes § 20-417d (A), advising [Cohen] to (a) contact the Department of Consumer Protection regarding the contractor's registration status; (b) to inquire into whether any complaints had been filed against the contractor; and (c) to request a list of consumers of new homes constructed to completion by the contractor. "At the time the agreement was signed, RMMI had been the subject of new home construction complaints to the Department of Consumer Protection . in 2001, 2004, 2006, and 2008. "After signing the contract and receiving the first payment, RMMI commenced work at the site, including land-clearing, blasting, excavation, and placement of temporary forms. When laying out and excavating for the foundation footings for the house, RMMI rotated or 'pivoted' the axis of the foundation to avoid a rock outcropping. When Cohen learned of this, he expressed great concern, since the orientation of the house had been precisely planned so as to maximize the view from the house over the Connecticut River valley. "On August 31, 2010, after receiving Cohen's concerns and complaints about the rotation of the foundation, Meyers informed Cohen in an e-mail that, 'Joe, if you want the foundation moved back, I will call the concrete contractor and have him move it back.' "On August 10, 2010, Meyers went to the Chester town hall to file an application for a building permit. The Chester zoning enforcement officer, Judith R. Brown, informed Meyers that a building permit could not be issued because a driveway permit was required in order to obtain a building permit. Brown also required that Meyers file applications for a zoning permit and a driveway permit. A great deal of communication between Cohen and various town officials ensued, with Cohen pleading his case to all involved that the driveway should be 'grandfathered' and he should not be required to obtain a driveway permit. "Despite Cohen's efforts, on September 1, 2010, the application for a driveway permit was denied because it did not meet the driveway standards set forth in the 2005 driveway regulation. On September 7, 2010, after meeting with the town engineer, Cohen sent an e-mail to the various town officials requesting a waiver of the driveway regulations. On September 13, 2010, Cohen filed a formal application for the driveway waiver with the Board of Selectmen of the town of Chester. "On September 21, 2010, the driveway waiver application was considered at a Board of Selectmen meeting that was attended by Cohen and Meyers. The waiver was denied pending information regarding turning radius requirements for emergency vehicles. On October 5, 2010, the waiver of the driveway regulations was approved at a meeting of the Board of Selectmen. "On October 6, 2010, [Brown] wrote a letter to Cohen stating that the waiver was approved, but that before he could start driveway improvements, he was to arrange a preconstruction meeting with the driveway contractor, herself, and the town engineer, pay a $25 application fee, post a driveway bond in the amount of $1500, and provide a certificate of insurance prior to the issuance of a zoning permit. "On October 8, 2010, Cohen sent an e-mail to Meyers, which attached a detailed list of 'issues for discussion' before restarting construction on the project. The list included driveway issues, building permit 'problems,' and various other items that Cohen claimed had increased the project cost by 5 to 10 percent. Cohen's list suggested a variety of paths to 'move forward,' ranging from shutting down construction temporarily or permanently, to completing the construction as quickly as possible, to entering into a new contract. In reply to Cohen's e-mail, Meyers stated that he was not responsible for the delay or the permit or driveway issues, and declared that Cohen was in breach of the contract, stating: '[t]his delay is costing me time and money. Reminder: You represented to me by contract that you have [an] approved building lot and that I should not have to be caused a delay from the town government. . Without a building permit, approved site plan and adjusted contract, this job is [stopped] and you remain in breach of contract.' "For the next week, Cohen and Meyers continued to exchange e-mails blaming each other for various delays, discrepancies, problems, and cost overruns on the project. Cohen attempted to get Meyers to meet with the town and restart the building process, but Meyers refused to do so unless he could move forward with the existing contract 'without issues.' He interpreted Cohen's insistence on discussing topics such as delay and increased cost as 'nothing more than you trying to get me to pay for your misfortune.' "On October 25, 2010, Cohen sent a certified letter to Meyers stating that the contract was 'under review' and directing him not to perform any additional work, make any expenditures, or order materials or services related to 11 Kings Highway. "On November 10, 2010, [Brown], the Chester zoning enforcement officer, returned the building permit application and checks to Meyers because she had been advised by Cohen that 'he will not be going forward with his plans to build at 11 Kings Highway at this time.' "Ultimately, on December 1, 2010, Cohen notified RMMI via certified letter that the contract was terminated for cause. "Cohen then embarked upon a relentless pursuit of his grievances against Meyers that has continued unabated to the present. The catalog of e-mails, letters, newspaper articles, and other writings which memorialize long and bitter conflict is impressive in its dimensions and in its vitriol. What follows are excerpts which are particularly relevant to the issues in this lawsuit. "On January 17, 2011, in an e-mail to Mr. Meyers, Mr. Cohen stated: " 'Please share the following with your wife and your attorney: Time is up-this week I begin filing formal complaints and notifying officials in all Connecticut River Valley Durham and surrounding towns about my dispute with you. I also intend to [take out] an ad in the Middletown Press and other publications (I am 100 [percent] serious). When I call you out as a liar, cheat, thief and lawbreaker-it will all be true! When your wife comes home from work at Middlesex Memorial saying she is humiliated; when your children ask what is wrong with you; when your neighbors (who I contact by mail) start staring at you strangely, you will know you blew your last chance to fix things. And every building official and state official in the Durham-Meriden-East Haddam corridor will have your number. As for being a licensed building inspector-I doubt it since I will track you and make sure every community gets a full accounting of your track record . I will be visiting officials with formal letters of complaint in East Haddam, Durham and Meriden as soon as possible. You are going to be under the gun of officials and the public. . [You have] left me no choice but to make you pay for it.' "On January 18, 2011, Mr. Cohen began exchanging e-mails with George P. Gombossy, a syndicated consumer columnist for numerous Connecticut newspapers. Cohen told Gombossy: " 'thanks for getting involved in this. meyers' llc includes his wife, so I am going to put her name and work affiliation in everything I do going forward. i have a feeling when middlesex memorial sees their name getting trashed with an employee's they may put the screws to her.' "(Lowercase in original.) "On January 19, 2011, Cohen sent another e-mail to Meyers, stating: " 'Your stupidity is overwhelming. I have tried to be nice to you because you are a small man without much of a life. What little you have is about to be diminished.... When you are sitting around with no work or selling light bulbs at the local store, remember you blew any chance you had to salvage your reputation.' "In the wake of these e-mails, as he suggested he would, Cohen began communicating with various state and local officials regarding Meyers. He also, as he suggested he would, began to include Meyers' wife, Christine A. Meyers, as part of his communications and requests for information. Cohen justified his efforts directed at Christine Meyers because she was a secretary of RMMI and Meyers' 'business partner.' The former is true, but as to the latter, no competent evidence was submitted as to any active participation by Mrs. Meyers in any of the business affairs of RMMI, or in the construction project at 11 Kings Highway. "On January 19, 2011, Cohen forwarded a Freedom of Information Act ('FOIA') [ General Statutes § 1-200 et seq. ] request to Richard McManus, building official for Durham (copied to Laura Francis, first selectman), requesting any and all building permits or other permits for construction or renovations issued or requested by Robert M. Meyers, Robert M. Meyers Inc., LLC, Robert Meyers, and Christine A. Meyers. Thereafter, Cohen met personally with McManus. Cohen also met with Keith Darin, then building official for East Haddam, to review files of houses built by RMMI. "Cohen made a FOIA request directed to the Department of Consumer Protection, asking for all complaints against RMMI and Meyers. On January 31, 2011, Cohen filed a complaint with the Department of Consumer Protection related to the construction at 11 Kings Highway in Chester, but also alleging that Meyers performed new home construction, while not registered, at 24 Alger Road, in East Haddam.... [Cohen] began to exchange e-mails with Terence Zehnder, the investigator for the Department of Consumer Protection, and in a March 29, 2011 e-mail to Zehnder, stated, 'Meyers is stubborn, not smart, arrogant and has gotten away with pulling crap for years.' To resolve [Cohen's] complaint, RMMI provided an assurance of voluntary compliance to the commissioner of the Department of Consumer Protection and paid a civil penalty of $250 on April 19, 2011. "On January 3, 2012, Cohen sent a three page letter to the Middlefield Board of Selectmen, stating, '[i]t is my belief [Meyers] is a liar, cheat, commits fraud, steals, is not competent as a builder, and lacks proper respect for the law. Robert Meyers has . [w]orked (in 2009/ 2010) as a builder while not registered/licensed (a criminal offense) . [p]erformed construction work (2010) on a new house without getting a building permit . [a]llegedly threatened to kill a customer in a dispute over the customer's house . [i]gnored another town's building inspector and planned to go against his order (2010), created and submitted a fake document into a court proceeding (2011).' Cohen also states: 'Robert M. Meyers has disdain for the law, the court system and the truth. . [I]t is my experience and belief Robert M. Meyers is a dishonest, deceitful, incompetent contractor.' Cohen thereafter went to a Middlefield Board of Selectmen meeting to read aloud the content of his letter, and that appearance was reported by the press. On January 13, 2012, an article appeared in the 'Town Times' headlined, 'Chester Resident Complains about Middlefield Building Inspector at Selectmen's Meeting,' reporting that Cohen stated that 'Meyers does not have respect for the law, authority or the truth and felt he was fundamentally dishonest and deceitful.' "On September 7, 2012, Cohen sent a letter to Joseph V. Cassidy, acting state building inspector, and copied the letter to Donald DeFronzo, acting commissioner of the Department of Construction Services; Daniel Tierney, deputy state building inspector; Attorney General George Jepsen; and William M. Rubenstein, commissioner of the Department of Consumer Protection. In the letter, Cohen stated: 'I believe Mr. Meyers may have obtained his building inspector's license under false pretenses and/or is not qualified to be licensed by the state of Connecticut.' Cohen also stated that Meyers was guilty of 'a serious criminal violation' when he built and sold a new house at 24 Alger Road in East Haddam. In the letter, Cohen states that Meyers is 'an alleged liar, cheat and thief-an admitted criminal who violated state building and consumer protection laws'; and [that] Meyers is 'something of a Jekyll and Hyde personality: Charming until he gets your money, then a sociopath who enjoys taunting and threatening in response to legitimate questions about business practices, competence and integrity.' "On September 27, 2012, Meyers was disclosed as an expert witness who was expected to be called at the trial of this case. The disclosure stated that Meyers 'is expected to testify that, in his opinion, there was no violation of any codes regarding the work done by Mr. Meyers at the property subject to this lawsuit prior to the issuance of any building permit by the town of Chester. Mr. Meyers may also give his opinion that the town of Chester did not have any governing rules or regulations which would have resulted in a violation of the work done at the property prior to the issuance of a building permit by the town of Chester.' . "Upon learning of this expert disclosure, Cohen began a new, more aggressive and more strident round of communications with state and local officials, purportedly 'to ascertain information related to Cohen's prosecution in this case.' . "Cohen made a FOIA request to the [Department of Construction Services] (the state building inspector's office) for documents related to Meyers' service as a building official in East Haddam. After reviewing the response, on October 10, 2012, Cohen sent a letter to the state building official, in which he stated that Meyers had 'a long history of consumer complaints and skirting the law' . He complained that Meyers 'stole most of the $53,500 I gave him .' He expressed a 'personal belief' that 'Mr. Meyers is a liar, cheat, thief and incompetent as a builder and would not be deserving of a job in public service.' "On October 16, 2012, Cohen spoke at a meeting of the Middlefield Board of Selectmen, stating, among other things, that Meyers was not registered as a new home construction contractor in 2009/2010 when he built a home at 24 Alger Road, a criminal violation of state law for which he was not prosecuted, and that at the time he passed the state test for the building official, he was not licensed and was in 'serious criminal violation of the very rules he was charged with upholding.' "On October 23, 2012, Cohen sent a letter to the first selectman of the town of Middlefield stating that Meyers had lied on his job application. In the letter, Cohen also stated that a customer had alleged that Meyers threatened to kill him. "Cohen spoke again at a Middlefield Board of Selectmen meeting on November 5, 2012, again claiming that it was a criminal violation for Meyers to build the house at 24 Alger Road without licensing as a new home contractor. "On November 26, 2012, Cohen sent another letter to the Middlefield Board of Selectmen, letting them know of the pending lawsuit and complaints lodged against Meyers, claiming that $53,500 was 'stolen' and he was left only with a torn-up piece of property. Cohen stated: '[Y]ou cannot reason with a man who lies, cheats and steals with a cold heart; a man I know who will laugh in your face and taunt you, telling you he has your money and it is now his money .' "On April 10, 2013, Cohen sent a letter to Angie Martinez, a consumer information representative in the fraud division of the Department of Consumer Protection, stating, '[i]t is my contention now that Robert M. Meyers, doing business as Robert M. Meyers, Inc., had for the past decade or more operated an ongoing criminal enterprise disguised as a building contracting business. Mr. Meyers engaged in fraud, theft/larceny, embezzlement, violation of consumer protection laws, elder abuse and other criminal behavior .' "On April 29, 2013, Cohen wrote again to the first selectman of the town of Middlefield, stating: 'I have been working with state and federal authorities to bring criminal and other actions against Mr. Meyers for alleged crimes including larceny, fraud and abuse-charges I believe Mr. Meyers is guilty of . I look forward to the day when news trucks are lined up outside your Town Hall building to conduct live broadcasts . Meyers, through his corporate entity . took money from me that Mr. Meyers apparently embezzled from his corporation and used for his personal expenses . Meyers lied, cheated and stole from [one of his customers, John Christopher, and his wife, Sarah] and that led to Mr. Christopher's death. It is an awful tale, but something not out of character when it comes to Mr. Meyers, who is one of the most despicable people I have ever come across.' "Sometime in the summer of 2013, Cohen created an Internet website entitled 'Housebuilder from Hell; Robert 'Bob' Meyers' at the address www.robertmeyersinfo.com. The website was paid for and maintained by Cohen, and consists of pages of text with limited graphics. Cohen confirmed that he has complete control over the content of the website. Several statements on the website are especially pertinent to this lawsuit: • " 'Certainly, I did not make Meyers into what he is-a liar, thief cheat, incompetent and lawbreaker.' • " 'Meyers, I learned in my query into his past, thinks it is okay to cheat on his wife, contract venereal disease, and advertise for dates on the Internet .' • " 'Bob Meyers is a thug, a criminal and expert liar .' • " 'Let me tell you some of the things Bob Meyers does not want you to know, all of which I would contend reflect on Meyers' poor moral character, his criminal and anti-social inclinations, and that confirm he is a liar and a cheat and a lawbreaker. They include . 1. Bob Meyers had an affair while married. At some point, Bob Meyers contracted venereal disease... Since I know Bob Meyers at one point was trolling the Internet for women using my money, let this be a warning: practice safe sex (some venereal disease infections cannot be cured), and the safest sex is to choose your relationships carefully and take other precautions .' • " 'I did not know at the time that Meyers had a history of lawbreaking and complaints, that his wife had tired of his lack of ability to be a decent husband and partner in marriage, or that Meyers' behavior was not unlike that of a criminal who refuses to accept responsibility for his actions.' "The court credited Meyers' testimony that he has been affected physically, mentally, and emotionally by Cohen's conduct. Meyers testified to sleepless nights, anxiety, tremendous stress, jitters, night sweats, a pit in his stomach, and constantly worrying what would happen next. Meyers testified that he often goes home, closes the blinds, seals himself in and pulls a blanket over his head. He admitted to thoughts of suicide as a way to 'stop all of the pain.' He summed up his situation by remarking that Cohen's accusations of him killing a man, and being a liar, a thief and a criminal have turned his life into 'a pile of crap.' Meyers' changes in behavior, outlook, and demeanor over the past few years were corroborated by the testimony of various friends and relations." (Citations omitted; emphasis in original; footnotes omitted.) On the basis of the foregoing facts, and additional facts that will be set forth as necessary, the court concluded, inter alia: "RMMI's failure to register with the Department of Consumer Protection as a new home construction contractor under the NHCCA, while at the same time negotiating a contract for new home construction, is a violation of the [NHCCA]. RMMI's failure to provide the plaintiff with the written notice required by § 20-417d (A) prior to entering into the agreement is also a violation of the NHCCA. A violation of the NHCCA, General Statutes § 20-417a et seq., constitutes a per se violation of [CUTPA]. As a result of the CUTPA violation established in count seven, the plaintiff is entitled to 'actual damages' under General Statutes § 42-110g (a)." The court credited Cohen's testimony that "he would have acted differently had he received proper NHCCA disclosures from RMMI," and thus [rendered] judgment in favor of Cohen against RMMI, and awarded him actual damages in the amount of $54,750 on his CUTPA claim. The court found in favor of RMMI on its counterclaim for breach of contract, but found that damages were not proven and thus awarded nominal damages in the amount of $1. The court found in favor of Meyers against Cohen on his defamation claim and awarded Meyers noneconomic damages in the amount of $100,000. The court rejected the parties' remaining claims against each other. The parties thereafter filed motions to reargue. First, Cohen sought reargument, inter alia, on the grounds that the court erred in summarily dismissing his claims for fraud, unjust enrichment, statutory theft and conversion against Meyers individually. Cohen argued that the court erred in declining to pierce the corporate veil and to hold Meyers individually liable for his conduct, and that its decision was inconsistent, in that it "concluded that RMMI violated a statutory duty by failing to comply with the NHCCA in violation of CUTPA [but] . that Meyers did not use the corporate form to violate a statutory duty or perpetuate a fraud." Cohen argued: "[T]he court's express findings that Meyers had complete control and domination over RMMI, that RMMI violated an express statutory duty and engaged in unfair and deceptive practices, and that such violation was the cause of the plaintiff's damages, necessitates a finding that Meyers used the corporate form to violate a statutory duty." The court disagreed, and issued an order on December 3, 2015, holding, inter alia: "[T]he court rejects [Cohen's] contention that the facts found by the court in its memorandum of decision necessarily compel a finding that Meyers used his control and domination of the corporation to commit fraud or wrong, to perpetrate the violation of a statutory or other positive legal duty, or a dishonest or unjust act in contravention of [Cohen's] legal rights." Meyers sought reargument of the court's refusal to award him punitive damages on his defamation claim and challenging the court's finding that Cohen's actions were not so extreme and outrageous as to support a claim of intentional infliction of emotional distress. The court denied Meyers' motion. This appeal and cross appeal followed. Additional facts will be set forth as necessary. I PLAINTIFF'S APPEAL A Cohen first claims that the court erred in declining to pierce the corporate veil of RMMI, and thus to hold Meyers personally liable for fraud and violation of CUTPA. We are not persuaded. "A court's disregard of an entity's structure is commonly known as piercing the corporate veil." (Internal quotation marks omitted.) Litchfield Asset Management Corp. v. Howell , 70 Conn.App. 133, 148 n.10, 799 A.2d 298, cert. denied, 261 Conn. 911, 806 A.2d 49 (2002). "Ordinarily the corporate veil is pierced only under exceptional circumstances, for example, where the corporation is a mere shell, serving no legitimate purpose, and used primarily as an intermediary to perpetuate fraud or promote injustice." (Internal quotation marks omitted.) Angelo Tomasso, Inc. v. Armor Construction & Paving, Inc. , 187 Conn. 544, 557, 447 A.2d 406 (1982). "Whether the circumstances of a particular case justify the piercing of the corporate veil presents a question of fact. . Accordingly, we review the trial court's decision whether to pierce [a party's] corporate veil under the clearly erroneous standard of review." (Citations omitted; internal quotation marks omitted.) Naples v. Keystone Building & Development Corp. , 295 Conn. 214, 234, 990 A.2d 326 (2010). We have recognized two tests for disregarding a defendant's corporate structure: the instrumentality rule and the identity rule. On appeal, Cohen claims that he satisfied the requirements of the instrumentality rule, and thus that the court erred in declining to pierce the corporate veil. "The instrumentality rule requires, in any case but an express agency, proof of three elements: (1) Control, not mere majority or complete stock control, but complete domination, not only of finances but of policy and business practice in respect to the transaction attacked so that the corporate entity as to this transaction had at the time no separate mind, will or existence of its own; (2) that such control must have been used by the defendant to commit fraud or wrong, to perpetrate the violation of a statutory or other positive legal duty, or a dishonest or unjust act in contravention of [the] plaintiff's legal rights; and (3) that the aforesaid control and breach of duty must proximately cause the injury or unjust loss complained of." (Internal quotation marks omitted.) Id., at 232, 990 A.2d 326. In declining to pierce RMMI's corporate veil under the instrumentality rule, the trial court explained: "It is admitted that Meyers singlehandedly owned and operated RMMI on a day-to-day basis. But, the fact that a sole stockholder of a corporation is in exclusive control of the company's finances and business practices, standing alone, is an insufficient basis in itself to pierce the corporate veil. While control is a factor, '[o]f paramount concern is how the control was used, not that it existed.' . "In this respect, [Cohen] has failed completely to offer any evidence that Robert M. Meyers, the individual, used the corporate form to perpetrate a fraud. The evidence offered by [Cohen] does not justify transforming a breach of contract claim against a corporation into a personal obligation of the corporation's principal.... "[Cohen] offered no evidence to suggest that Meyers did not respect and observe the laws which afford him the right to form and manage a corporation of which he was the sole shareholder. RMMI had its own accounts, made payments to and from those accounts and conducted regular business as a general contractor, and apparently existed for years on its own, separate and distinct from . Meyers as an individual. Granted, the plaintiff offered evidence that funds from the RMMI account were used to pay bills of Meyers that he should have paid personally. But, Robert Gollnick . RMMI's accountant, testified that all those payments were accounted for and reflected on the balance sheet as loans to a company officer. Eventually, Meyers had to put money back into the corporation to offset the personal payments that were made from [the] corporation. In sum, [Cohen]'s evidence that . Meyers used the corporate form as a vehicle to commit fraud or dishonest acts consists of vague allusions and speculation, and thus was completely unpersuasive." The court thus concluded that Cohen had "offered insufficient evidence to satisfy . the instrumentality . test," and thus rejected his attempt to pierce RMMI's corporate veil. On appeal, Cohen claims that he satisfied the instrumentality test, and thus that the court should have pierced the corporate veil and held Meyers individually liable for violating CUTPA. Cohen's claim is based upon the same argument that he raised in his motion to reargue-that the trial court's determination that he failed to prove that Meyers exercised his control over RMMI to commit fraud or wrong or to perpetrate the violation of a statutory or other positive legal duty is inconsistent with its determination that RMMI, while under the control of Meyers, violated a statutory duty to Cohen under the NHCCA. In other words, Cohen contends that the trial court's own factual findings proved that he satisfied the instrumentality test. The court summarily rejected "[Cohen's] contention that the facts found by this court in its memorandum of decision necessarily compel a finding that Meyers used his control and domination of the corporation to commit fraud or wrong, to perpetrate the violation of a statutory or other positive legal duty, or a dishonest or unjust act in contravention of [Cohen's] legal rights." Although the court determined that RMMI had failed to comply with the NHCCA, and that that failure constituted a violation of CUTPA, the court concluded: "The plaintiff's proof in this case did not establish wilful, malicious, immoral or deceitful conduct." The court's determination that Cohen failed to satisfy the instrumentality test is supported by the record and he fails now, as he did before the trial court, to demonstrate that RMMI "did not serve a legitimate business purpose, or that failing to pierce its corporate veil and hold [Meyers] personally responsible would perpetrate a fraud or other injustice." We therefore cannot conclude that the court's ruling was clearly erroneous. B Cohen also challenges the court's judgment against him on Meyers' counterclaim for defamation. By way of special defense to Meyers' counterclaim, Cohen alleged that he should not be held liable for defamation because his remarks concerning Meyers were true. Cohen also alleged that his remarks were privileged based upon his "right to bring forth complaints to the Department of Consumer Protection regarding the unscrupulous and unlawful actions of [Meyers] which violate consumer protection statutes" and his right to make such statements in prosecuting this action. Cohen also argued, in his posttrial brief, that his statements regarding Meyers involved matters of public concern and thus were constitutionally protected. The trial court found that Cohen's statements regarding Meyers were defamatory per se. The court further found that Cohen's arguments in defense of those statements unavailing. We agree with the trial court. We begin by setting forth the general principles of law that are pertinent to our analysis of Cohen's challenge to the trial court's defamation ruling against him. "A defamatory statement is defined as a communication that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him ." (Internal quotation marks omitted.) Gleason v. Smolinski , 319 Conn. 394, 431, 125 A.3d 920 (2015). "Defamation is comprised of the torts of libel and slander: slander is oral defamation and libel is written defamation." (Internal quotation marks omitted.) Id., at 430, 125 A.3d 920 n.30. To establish a prima facie case of defamation at common law, the plaintiff must prove that "(1) the defendant published a defamatory statement; (2) the defamatory statement identified the plaintiff to a third person; (3) the defamatory statement was published to a third person; and (4) the plaintiff's reputation suffered injury as a result of the statement." (Internal quotation marks omitted.) Id., at 430, 125 A.3d 920. Statements deemed defamatory per se are ones in which the defamatory meaning of the speech is apparent on the face of the statement. Battista v. United Illuminating Co. , 10 Conn.App. 486, 491-92, 523 A.2d 1356, cert. denied, 204 Conn. 802, 803, 525 A.2d 1352 (1987). Our state has generally recognized two classes of defamation per se: (1) statements that accuse a party of a crime involving moral turpitude or to which an infamous penalty is attached, and (2) statements that accuse a party of improper conduct or lack of skill or integrity in his or her profession or business and the statement is calculated to cause injury to that party in such profession or business. See Moriarty v. Lippe , 162 Conn. 371, 383-84, 294 A.2d 326 (1972) (slander per se); Proto v. Bridgeport Herald Corp. , 136 Conn. 557, 565-66, 72 A.2d 820 (1950) (libel per se). "When the defamatory words are actionable per se, the law conclusively presumes the existence of injury to the plaintiff's reputation. [The plaintiff] is required neither to plead nor to prove it." (Internal quotation marks omitted.) Lowe v. Shelton , 83 Conn.App. 750, 766, 851 A.2d 1183, cert. denied, 271 Conn. 915, 859 A.2d 568 (2004). "Whether words are actionable per se is a question of law for the court . All of the circumstances connected with the publication of defamatory charges should be considered in ascertaining whether a publication was actionable per se. The words used, however, must be accorded their common and ordinary meaning, without enlargement or innuendo." (Citations omitted.) Miles v. Perry , 11 Conn.App. 584, 602-603, 529 A.2d 199 (1987). "It is well settled that for a claim of defamation to be actionable, the statement must be false . and under the common law, truth is an affirmative defense to defamation . the determination of the truthfulness of a statement is a question of fact ." (Internal quotation marks omitted.) Gleason v. Smolinski , supra, 319 Conn. at 431, 125 A.3d 920. "Contrary to the common law rule that required the defendant to establish the literal truth of the precise statement made, the modern rule is that only substantial truth need be shown to constitute the justification. . It is not necessary for the defendant to prove the truth of every word of the libel. If he succeeds in proving that the main charge, or gist, of the libel is true, he need not justify statements or comments which do not add to the sting of the charge or introduce any matter by itself actionable. . The issue is whether the libel, as published, would have a different effect on the reader than the pleaded truth would have produced." (Citations omitted; internal quotation marks omitted.) Goodrich v. Waterbury Republican-American, Inc ., 188 Conn. 107, 112-13, 448 A.2d 1317 (1982). "A defendant may shield himself from liability for defamation by asserting the defense that the communication is protected by a qualified privilege. . When considering whether a qualified privilege protects a defendant in a defamation case, the court must resolve two inquiries. . The first is whether the privilege applies, which is a question of law over which our review is plenary. . The second is whether the applicable privilege nevertheless has been defeated through its abuse, which is a question of fact. . In a defamation case brought by an individual who is not a public figure, the factual findings underpinning a trial court's decision will be disturbed only when those findings are clearly erroneous, such that there is no evidence in the record to support them. . Finally, to the extent that a litigant challenges the legal standard that is required to establish that a privilege has been defeated, that issue is a question of law over which our review is plenary." (Citations omitted.) Gambardella v. Apple Health Care, Inc. , 291 Conn. 620, 628-29, 969 A.2d 736 (2009). "Qualified privileges may be defeated by a showing, by a preponderance of the evidence . of actual malice, also known as constitutional malice, or malice in fact." (Citation omitted.) Gleason v. Smolinski , supra, 319 Conn. at 433 n.32, 125 A.3d 920. "Actual malice requires that the statement, when made, be made with actual knowledge that it was false or with reckless disregard of whether it was false. . A negligent misstatement of fact will not suffice; the evidence must demonstrate a purposeful avoidance of the truth." (Internal quotation marks omitted.) Chadha v. Charlotte Hungerford Hospital , 97 Conn.App. 527, 537-38, 906 A.2d 14 (2006). Malice is rarely subject to proof by direct evidence but is often proved only by inference through an accumulation of circumstantial evidence. With the foregoing legal principles in mind, we review the trial court's findings and legal conclusions. In considering Meyers' defamation claim, and Cohen's defenses to it, the trial court noted, inter alia: "There does not appear to be serious debate between the parties that the statements in question-that Meyers is a 'cheat,' 'thief,' 'liar,' 'admitted criminal,' and incompetent building contractor, or that he caused the death of a customer, cheated on his wife, or contracted a venereal disease-if false, and if not protected by a privilege, would be considered defamatory. The statements, considered separately or in combination, would certainly expose a person to scorn or contempt, cause him to be avoided, or injure him in his business or trade." The court parsed Cohen's various statements regarding Meyers into three categories: those that accused him of a "crime involving moral turpitude or to which an infamous penalty is attached (e.g., 'thief,' 'admitted criminal,' or that he caused the death of a customer); those that accused him of improper conduct or lack of skill or integrity in his profession or business (... 'cheat,' 'liar,' and an incompetent building contractor)'; and those that fall into a grey area-namely, that Meyers cheated on his wife or contracted venereal disease.' " The court found that Cohen's statements concerning Meyers were defamatory per se. Turning to Cohen's defense that all of his statements concerning Meyers were true or substantially true, the court first rejected Cohen's argument that Meyers bore the burden of proving the falsity of the defamatory statements at issue herein, explaining that, having asserted truth as a special defense, it was his burden to prove the truth or substantial truth of those statements. The court then found: "Several defamatory statements of Cohen stretch the test for 'substantial truth' past its breaking point." The court thus concluded that Cohen had not met his burden of proof as to the special defense of truth, and that recovery for defamation was not precluded on that basis. The court then went on to address Cohen's claims of privilege. The court rejected those claims, finding as follows: "The court believes that the direct and circumstantial evidence in the record of this case abundantly supports a finding that Cohen's statements regarding Meyers stealing, committing criminal acts, causing a death, contracting venereal disease, and having extra-marital affairs were made with actual knowledge that they were false or with reckless disregard for whether they were false." The court further concluded: "Having patiently and exhaustively reviewed the entire record, the court is persuaded that Cohen's departures from the truth were in fact motivated by spite or ill will-a burning desire to destroy Meyers personally and professionally that went far beyond aggressive litigation tactics or a good faith interest in protecting the public good. This is reflected at the very outset of this dispute in the January, 2011 e-mails he sent to Meyers and others when he promised to 'call you out as a liar, cheat, thief and lawbreaker. . You are going to be under the gun of officials and the public. . [You have] left me no choice but to make you pay for it' and continues throughout, right up until the vehement and caustic text of the 'Housebuilder from Hell' website. That publicly expressed intent to inflict harm, coupled with the fact that Cohen-when he wanted to-was fully capable of restricting his comments about [Meyers] to statements that were true, persuades the court that the accusation [that] Meyers 'caused' a death was deliberately made in purposeful avoidance of the truth. "Without discussing in detail, the court finds that a similar analysis applies to Cohen's deliberate use of the terms 'thief' and 'criminal' to refer to Meyers, and his website's disclosure that Meyers 'cheated on his wife' and 'contracted a venereal disease.' These statements were all made in reckless disregard for whether they were false and in purposeful avoidance of the truth, as part of a cruel and vindictive effort to inflict injury upon Meyers. Actual malice has been proven to the court by a preponderance of the evidence; therefore, any conditional privilege has been lost, and recovery for defamation is not precluded." In his posttrial brief, Cohen also claimed that his comments about Meyers were constitutionally protected because they were matters of public concern "relating to both Meyers as a builder with whom multiple consumers had made prior complaints and a lawsuit, and Meyers as a building official using his office to obtain building code interpretations for his own benefit." The court also rejected that claim, finding as follows: "[H]aving reviewed the entirety of the record and heard the testimony, the court concludes that, despite the important setting in which the statements were made, the content of the message and the context in which they were published makes it clear that they [were] not in furtherance of an uninhibited, robust, and wide open debate on matters concerning public affairs. Their purpose was solely to harass and humiliate Meyers and perhaps induce the town of Middlefield to prematurely end his employment, perhaps so as to avoid a public relations embarrassment. The statements were published against the background of a private business dispute that had mushroomed into a contentious, vitriolic, and extremely uncivil lawsuit. The court finds that Cohen's remarks were part of an extended campaign of retaliation and revenge against Meyers that had everything to do with their private dispute, and little if anything to do with Meyers' employment as building official or, for that matter, building officials in general. . [T]he statements were not 'intended to persuade . with regard to a matter of public concern, [but] rather [to] merely torture [him] gratuitously with regard to a purely private matter.' " The court thus concluded: "[T]he court finds that the speech in question is solely a contrived means for malicious harassment on a matter of private concern, and is therefore not entitled to protection under the first amendment to the [United States] constitution." On appeal, Cohen claims that the court improperly held him liable for defamation because his speech was protected by the first amendment, he did not make any of the allegedly defamatory statements with actual malice, the court employed the wrong legal standard in determining malice, and that he had proven that each of the allegedly defamatory statements was substantially true even though the burden of proof was on Meyers to prove that they were not. We have examined the record on appeal and considered the briefs and the arguments of the parties, and conclude that the trial court properly ruled in favor of Meyers on his defamation claim against Cohen. Because the trial court thoroughly addressed the arguments raised in this appeal, we adopt its well reasoned decision on the defamation claim, as quoted extensively herein, as a proper statement of the facts and legal analysis on the issues raised in this appeal. Any further discussion by this court would serve no useful purpose. See, e.g., Woodruff v. Hemingway , 297 Conn. 317, 321, 2 A.3d 857 (2010). II DEFENDANTS' CROSS APPEAL A On cross appeal, the defendants first claim that the court erred in awarding damages on Cohen's CUTPA claim against RMMI because he did not prove that he had suffered any compensable injury as a result of RMMI's failure to comply with the NHCCA. The defendants argue that any injury suffered by Cohen was caused, instead, by his own refusal "to submit the driveway permit fee, bond and certificate of insurance in order to obtain a building permit and continue construction," and not their failure to make NHCCA disclosures. The defendants thus claim that the court erred in awarding damages on Cohen's CUTPA claim because he failed to prove that he suffered an injury or actual loss as a result of the CUTPA violation. We disagree. The trial court determined that, as a result of RMMI's CUTPA violation, Cohen was entitled to actual damages pursuant to § 42-110g (a), which provides in relevant part: "Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action in the judicial district in which the plaintiff or defendant resides or has his principal place of business or is doing business, to recover actual damages. ." The court noted: "Actual damages under CUTPA have been defined to include loss and expenses incurred by the CUTPA plaintiff as a result of a violation of the act. Prishwalko v. Bob Thomas Ford, Inc ., 33 Conn.App. 575, 587, 636 A.2d 1383 (1994)." With those legal principles in mind, the court credited Cohen's testimony that, "had he received the necessary disclosures from RMMI as required by the NHCCA, it is highly likely that he would not have contracted with RMMI, and would not have paid RMMI the sum of $54,750." The court further explained that Cohen had little to show for the $54,750 that he had paid to RMMI and that, if he had contracted with another party, it is reasonably probable that sum would have gone toward the cost of construction of a "completed home instead of a minimally excavated and prepared lot." The court thus awarded Cohen compensatory damages in the amount of $54,750-representing out-of-pocket costs directly associated with the contract in question-for a violation of CUTPA. The issue of whether Cohen suffered an ascertainable loss as a result of RMMI's CUTPA violation is a question of fact, which we review under the clearly erroneous standard. D'Angelo Development & Construction Corp. v. Cordovano , 121 Conn.App. 165, 182, 995 A.2d 79, cert. denied, 297 Conn. 923, 998 A.2d 167 (2010). Here, the court based its damages award on Cohen's testimony that he would not have signed the contract with RMMI in the first place if he had received the proper NHCCA disclosures, and thus awarded Cohen compensatory damages for the money he had paid to RMMI, for which he received little to no benefit. The court's conclusion is supported by the trial record. The fact that the contractual relationship between the parties ultimately deteriorated, and that, too, may have caused Cohen damages, is not a basis for concluding that the court's finding that RMMI's CUTPA violation proximately caused him damages was clearly erroneous. B Meyers also claims that the court erred in failing to award punitive damages on his defamation claim. We disagree. "In awarding punitive damages . [t]he trial court has broad discretion in determining whether damages are appropriate. . Its decision will not be disturbed on appeal absent a clear abuse of discretion." (Internal quotation marks omitted.) Bhatia v. Debek , 287 Conn. 397, 420, 948 A.2d 1009 (2008). "Such damages, however, are not awarded as a matter of right, but rather as a matter of discretion, to be determined by the [court] upon a consideration of all the evidence ." (Internal quotation marks omitted.) DeVito v. Schwartz , 66 Conn.App. 228, 236, 784 A.2d 376 (2001). In addressing the parties' claims for punitive damages, the court noted that it had considered all of the evidence presented at trial and declined to award punitive damages to either party. The court did not otherwise set forth the specific legal or factual bases for that decision. The court denied reargument sought by Meyers on his claim for punitive damages, explaining that reargument was unnecessary because it had already considered all of the factual and legal issues raised by Meyers in his motion to reargue when it rendered its November 12, 2015 decision. In the absence of specific details set forth by the trial court upon which it may have relied, and thus possibly erred, in declining to award punitive damages, we presume that it properly applied the law and did not abuse the wide discretion afforded to it in making that determination. C Finally, Meyers claims that the court erred in rejecting his claim for intentional infliction of emotional distress. Meyers argues that the court erred in failing to find that Cohen's actions constituted extreme and outrageous conduct. We disagree. "[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. . In a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony. . On appeal, we will give the evidence the most favorable reasonable construction in support of the verdict to which it is entitled. . A factual finding may be rejected by this court only if it is clearly erroneous." (Internal quotation marks omitted.) Murphy v. Lord Thompson Manor, Inc ., 105 Conn.App. 546, 552, 938 A.2d 1269, cert. denied, 286 Conn. 914, 945 A.2d 976 (2008). "In order for the plaintiff to prevail in a case for liability . [alleging intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe. . Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society . Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous! . Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress." (Citations omitted; internal quotation marks omitted.) Appleton v. Board of Education , 254 Conn. 205, 210-11, 757 A.2d 1059 (2000). In considering Meyers' claim for intentional infliction of emotional distress, the court noted that "[t]he 'conduct' that is identified as the cause of Meyers' emotional distress consists of written and verbal oral communication with various newspaper outlets, state officials, town officials and members of the public concerning Meyers' past history as a builder and contractor, his current licensure as a building official, and his employment as a building official for the town of Middlefield." The court found that Cohen had engaged in "an intentional campaign-using permissible methods such as FOIA requests or open comments at public meetings-to drive a wedge between Meyers and his employer, the town of Middlefield. It was marked by tactless, abusive, and derogatory discourse, merciless provocation, and relentless scrutiny, all of which put Meyers under severe, unremitting pressure." The court nevertheless found that "even if Cohen was engaged in a personal vendetta intended specifically to humiliate and harass Meyers or make him lose his job, the specific conduct of making defamatory remarks at public meetings, sending letters to government officials containing defamatory statements, and maintaining an Internet website with defamatory information, does not rise to the level of 'extreme and outrageous conduct'-as that concept has been defined in the relevant case authority-necessary to impose liability for intentional infliction of emotional distress. The conduct that has been proven at trial is not extreme and outrageous as a matter of law, and therefore the cause of action for the intentional infliction of emotional distress must fail." (Emphasis in original.) Meyers claims that the trial court "erred by failing to consider Cohen's overall pattern, series, course and/ or accumulation of acts when determining whether Cohen's actions were sufficiently extreme and outrageous as to constitute an intentional infliction of emotional distress ." Meyers' claim is belied by the trial court's thorough and meticulous recitation of Cohen's conduct. Indeed, the court considered Cohen's conduct in its entirety, finding that he had undertaken a campaign that was designed to harm Meyers' personal and professional reputation. The court nevertheless determined that the manner in which Cohen undertook that campaign against Meyers-through written and verbal statements impugning Meyers- was not extreme and outrageous. The court properly focused on the conduct on which Meyers' claim was based, rather than by the generalized characterizations of this conduct, regardless of the motivation behind that conduct. His argument that the court erred in rejecting his claim for intentional infliction of emotional distress is unavailing. The judgment is affirmed. In this opinion the other judges concurred. The court noted that Cohen had expressed his intention to withdraw his rescission claim, but had never formally done so. On the basis of that stated intention, the court rendered judgment in favor of Meyers on that claim. That ruling has not been challenged on appeal. The trial court also declined to pierce RMMI's corporate veil pursuant to the identity rule. Cohen has not challenged that ruling. We note that Cohen did not plead that Meyers was a public official, that his statements involved a matter of public concern or public import, or that his speech was constitutionally protected. "[T]he clear and convincing evidence standard furnishes the applicable standard of proving actual malice to sustain an award of punitive damages to a private figure plaintiff." Gleason v. Smolinski, supra, 319 Conn. at 433 n.32, 125 A.3d 920. The court explained: "For example, Meyers wrote on his website, 'Housebuilder from Hell,' that 'at some point, Bob Meyers contracted venereal disease ' and then warned women to 'practice safe sex,' implying that they may find themselves in a relationship with Meyers since . 'I know Bob Meyers at one point was trolling the Internet for women .' Evidently, Cohen based this statement upon entries in the medical records of Meyers (obtained during discovery in this case) that showed he had undergone cauterization of genital warts, which, in the opinion of the doctor, were most likely caused by the human papillomavirus (HPV). True, HPV is primarily spread by sexual intercourse. But it also true that the majority of sexually active adults will be infected by HPV at some point in their lives. "There is a vastly different impression upon the listener upon learning that a person 'had treatment for genital warts ' as opposed to 'contracted a venereal disease.' In fact, putting aside the fact that all of this has nothing to do with Meyers' competence as a builder, the court concludes that inflicting the stigma, humiliation and scorn attached to a 'venereal disease ' upon Mr. Meyers, as opposed to relating any true state of facts, was exactly what Cohen intended by his statement. [Cohen] has failed to meet his burden of proving by a preponderance of the evidence that the statement [that] Meyers 'contracted a venereal disease ' is substantially true, as that concept has been defined in the relevant case authority. "In a similar fashion, Cohen's repeated accusations that Meyers was a 'thief' were based on his sophism that Meyers 'stole' the $53,500 payment under the contract. Words claimed to be defamatory are given their natural and ordinary meaning and are taken as reasonable persons would understand them. Ventresca v. Kissner, 105 Conn. 533, 535, 136 A. 90 (1927). A reasonable person would understand the descriptive term, 'thief,' to apply to a person who commits the crime of theft; someone who wrongfully, stealthily-and sometimes violently-takes the property of another. A reasonable person would not ascribe the term, 'thief,' to a contracting party who has retained funds freely and voluntarily paid to it because of a dispute over who has breached the contract. The use of the word, 'thief,' by Cohen is fully intended to bring down more scorn and contempt upon Meyers than would be occasioned by a statement of the literal truth: 'a defendant in a lawsuit where a breach of a contract to build a house is alleged.' Other than the fact that Meyers retained the initial payment under the contract, the plaintiff offered no other evidence of 'thievery' by Meyers. The plaintiff has failed to prove by a preponderance of the evidence the substantial truth of his many public statements that Meyers is a 'thief.' "Cohen's repeated references to Meyers committing 'criminal acts' or 'criminal violations,' or being an 'admitted criminal' or even that his contracting business was 'an ongoing criminal enterprise' are based on another fallacious argument. Because the New Home Construction Contractors Act provides for the imposition of criminal penalties in certain cases, and because Meyers has admitted he failed to comply with the NHCCA, Cohen stated that he is an 'admitted criminal'; that he has committed a 'criminal act'; and that his business is a 'criminal enterprise.' But the plaintiff offered no evidence that Meyers had ever been charged with a crime by any law enforcement agency, much less been convicted of a crime. An accusation that a person is 'a criminal' has always been a serious matter in our society. It is associated with behavior that is immoral, antisocial, evil, shameful and fundamentally wrong. Labeling Meyers as an 'admitted criminal' would create an impression in the mind of the listener many times more damaging than a literally true disclosure of the complete facts as to his violation of the NHCCA and the lack of any criminal charges or convictions. The plaintiff has failed to prove by a preponderance of the evidence the substantial truth of his many public statements that Meyers is a 'criminal' or committed 'criminal acts.' "Finally, the evidence at trial never made quite clear what the factual basis was for Cohen's statement that Meyers 'cheated on his wife.' The court presumes it had its genesis in the fact that Meyers admitted that he had used an online dating service (match.com). The proof amounted to little more than supposition or conjecture and fell far short of a fair preponderance of the evidence, which is properly defined as the better evidence, the evidence having the greater weight, the more convincing force in your mind. . Cross v. Huttenlocher, 185 Conn. 390, 394, 440 A.2d 952 (1981)." (Footnote omitted.) The court stated: "As one example, Cohen, on more than one occasion, stated that the conduct of Meyers 'caused' or 'led to' the death in 2007 of one of his customers, John Christopher. The statement that John Christopher's widow, Sandra Christopher, believes that the stress of dealing with the litigation with Meyers hastened John Christopher's demise from cancer is, in all respects, true. The statement that 'Meyers lied, cheated and stole from the Christophers and that led to Mr. Christopher's death,' is not. The latter statement declares a direct cause and effect relationship between the conduct of Meyers and the death of Mr. Christopher that is not warranted or justified by any credible, objective facts. "Cohen had actual knowledge of the true state of facts. He was fully capable of accurately reciting the facts of Mr. and Mrs. Christopher's story. In a November 26, 2012 letter to the selectmen of the town of Middlefield, Cohen mentions the fact that Mr. Christopher died at a 'relatively young' age without ever living in the 'dream house' that Meyers was to build. The letter tracks very closely the established facts regarding the dispute between the Christophers and Meyers, and nowhere in the letter does Cohen suggest that Meyers' conduct 'led to' Mr. Christopher's death. But, in a familiar pattern that would be seen in other contexts, Cohen's subsequent communication about the subject strays farther and farther from the objective facts until, in the end, there is little truth in them at all. "In an April 10, 2013 letter to Angie Martinez of the Department of Consumer Protection, Cohen stated that the lawsuit between Meyers and the Christophers 'came to a conclusion when Mr. Christopher died fairly suddenly, perhaps in part because of Mr. Meyers' actions.' In vivid language from his website, 'Housebuilder from Hell,' Cohen tells of 'law-breaking, building code violations, losses totaling many hundreds of thousands of dollars, the death of an aggrieved, home buyer, an alleged threat of extreme violence-and one man at the center of it all-contractor and state-licensed building inspector Robert M. 'Bob' Meyers.' In a June 18, 2013 letter to the Commissioner of the Department of Consumer Protection, Cohen stated that 'Meyers has caused not just terrible problems for consumers, but death, mayhem and other horrors.' The manner and context in which these statements were delivered-in a writing (e-mail) as opposed to speech, and on multiple occasions, persuade this court that this was not a negligent misstatement of fact."

12490420

Ricky E. COSTA, et al. v. PLAINVILLE BOARD OF EDUCATION, et al.

Costa v. Plainville Bd. of Educ.

2017-08-15

AC 39204.

1152

1156

167 A.3d 1152

167

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.022978+00:00

Fastcase

Ricky E. COSTA, et al. v. PLAINVILLE BOARD OF EDUCATION, et al.

Ricky E. COSTA, et al. v. PLAINVILLE BOARD OF EDUCATION, et al. AC 39204. Appellate Court of Connecticut. Argued May 18, 2017 Officially released August 15, 2017 Harold J. Geragosian, for the appellants (plaintiffs). Beatrice S. Jordan, for the appellees (named defendant et al.). DiPentima, C. J., and Prescott and Flynn, Js.

1776

11383

PRESCOTT, J. The plaintiffs, Ricky E. Costa, who suffered serious injury to his right eye during a pick-up basketball game at a Plainville High School senior class picnic, and his mother, Maria Costa, appeal from the summary judgment rendered on all counts in favor of the defendants, the town of Plainville (town), the town's Board of Education (board), and Steven LePage, Plainville High School's principal. The plaintiffs claim that the court improperly rendered summary judgment on the basis of governmental immunity. The plaintiffs contend that the evidence presented raised a genuine issue of material fact regarding whether discretionary act immunity applied and whether Ricky Costa was an identifiable person for purposes of the identifiable person-imminent harm exception to governmental immunity. We disagree and, accordingly, affirm the judgment of the trial court. The following undisputed material facts, as set forth by the trial court or gleaned from the summary judgment record, and procedural history are relevant to our resolution of the plaintiffs' claims. Plainville High School conducted its annual senior class picnic on June 17, 2011. The picnic occurred during regular school hours, but was held off campus at a YMCA campground facility in Burlington that includes a softball field, basketball court, and swimming pool. Students were not obligated to go to the picnic, but Ricky Costa voluntarily attended it and elected to participate in a pick-up basketball game in which he was injured. His injury occurred when another player poked him in the eye while they were attempting to get the ball. LePage generally supervised the picnic along with several teachers and a school nurse, none of whom, however, was stationed near or monitoring the basketball court. Accordingly, no school personnel were present at or supervising the basketball court at the time the injury occurred. Prior to Ricky Costa's injury, no one had been injured at the picnic nor had any issue arisen regarding student behavior. Moreover, no behavioral issues or basketball related injuries had occurred at senior class picnics in prior years. At the time of the picnic, the school board had in place a supervision policy that provided, inter alia, that school sponsored activities "must be well-planned and organized and must provide for the adequate supervision and welfare of participating students at all times." Guidelines for School Sponsored Activities and Organizations, Policy No. 6145.5 (2005). The plaintiffs commenced the underlying action on June 13, 2013. The operative amended complaint was filed on July 14, 2015, and contained five counts. Counts one through three sounded in negligence and were brought by Ricky Costa against the board, the town, and LePage. Count four asserts a claim for damages against the board premised upon LePage's right to indemnification pursuant to General Statutes § 10-235. Count five was brought by Maria Costa against the board and was derivative of the negligence claims of her son. She sought reimbursement for expenditures she made related to her son's medical care. The defendants filed an answer and special defenses, including that all counts were barred by governmental immunity. The defendants later filed a motion for summary judgment, arguing that there was no genuine issue of material fact that Ricky Costa's negligence counts were barred by governmental immunity; that Maria Costa's claim against the defendants was derivative of her son's negligence counts and, thus, was barred; and that the indemnification count failed as a matter of law. The plaintiffs filed a memorandum in opposition to the motion for summary judgment claiming that Ricky Costa fell within the identifiable person-imminent harm exception to governmental immunity and that the defendants were not entitled to governmental immunity because they breached a ministerial rather than discretionary duty to supervise students in their care. The motion was heard by the court, Hon. Joseph M. Shortall , judge trial referee, who subsequently issued a memorandum of decision on March 23, 2016, granting summary judgment on all counts in favor of the defendants. The court concluded as a matter of law that the alleged conduct of the defendants involved a discretionary duty for which they were entitled to governmental immunity and that Ricky Costa's voluntary participation in the picnic denied him status as an "identifiable person" for purposes of the identifiable person-imminent harm exception. This appeal followed. "The standards governing our review of a trial court's decision to grant a motion for summary judgment are well established. Practice Book [§ 17-49 ] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.... The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.... A material fact . [is] a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Lamar v. Brevetti , 173 Conn.App. 284, 288-89, 163 A.3d 627 (2017). Having thoroughly reviewed the summary judgment record, the briefs of the parties, and the applicable law, we conclude that the court properly rendered summary judgment in favor of the defendants with respect to the entirety of the complaint. First, the court properly determined that the defendants' alleged negligent acts or omissions were discretionary in nature and not ministerial acts. General Statutes § 52-557n, which generally abrogated common-law governmental immunity, "distinguishes between discretionary acts and those that are ministerial in nature, with liability generally attaching to a municipality [or its agents] only for negligently performed ministerial acts, not for negligently performed discretionary acts." DiMiceli v. Cheshire , 162 Conn.App. 216, 224, 131 A.3d 771 (2016). Moreover, "[t]here is a difference between laws that impose general duties on officials and those that mandate a particular response to specific conditions." Bonington v. Westport , 297 Conn. 297, 308, 999 A.2d 700 (2010). Although the plaintiffs suggest that the defendants' duty to supervise students during school sanctioned events such as the senior picnic was ministerial rather than discretionary in nature, the plaintiffs rely upon general safety guidelines and school board policies that, while requiring adequate supervision of students, fail to prescribe the precise nature or scope of such supervision or the manner in which it should be carried out. In other words, the plaintiffs have cited no clear directive that negated the need for the defendants to exercise judgment and discretion in providing adequate supervision. See Violano v. Fernandez , 280 Conn. 310, 323, 907 A.2d 1188 (2006). Second, the plaintiffs failed to demonstrate that there was a genuine issue of material fact as to whether the identifiable person-imminent harm exception to discretionary act immunity applied under the facts of the present case. Specifically, the plaintiffs failed to demonstrate that a genuine issue of material fact existed as to whether Ricky Costa was an "identifiable person" for purposes of the exception. The identifiable-person imminent harm exception "applies [if] the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm . This exception has three elements: (1) an imminent harm; (2) an identifiable victim; and (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm.... This exception is applicable only in the clearest cases." (Citations omitted; internal quotation marks omitted.) Jahn v. Board of Education , 152 Conn.App. 652, 661-62, 99 A.3d 1230 (2014). "In Burns [v. Board of Education , 228 Conn. 640, 649-50, 638 A.2d 1 (1994) ], the court recognized schoolchildren who are on school property during school hours as one identifiable class of foreseeable victims.... This class has been consistently recognized by the courts of our state as narrowly drawn." (Citation omitted.) Jahn v. Board of Education , supra, 152 Conn.App. at 662, 99 A.3d 1230. The plaintiffs' only argument in support of its claim that Ricky Costa was an identifiable person was that he belonged to the identifiable class of schoolchildren recognized in Burns . In Jahn , however, this court held that school children who voluntarily participate in nonmandatory school sponsored activities do not fall within the identifiable class recognized in Burns. Id., at 667-68, 99 A.3d 1230. Accordingly, the student in Jahn , who was injured during an extracurricular swim meet, did not qualify as an identifiable person. Here, it is undisputed that Ricky Costa was not required to attend the senior picnic, but did so voluntarily. He also voluntarily participated in the pick-up basketball game in which he was injured. We agree with the trial court that Ricky Costa's voluntary participation did not grant him the status of an identifiable person entitled to protection by school authorities. In sum, the defendants' duty to supervise the picnic was discretionary in nature, and Ricky Costa did not qualify as an identifiable person for purposes of the identifiable person-imminent harm exception. Accordingly, the court properly determined that the defendants were entitled to governmental immunity and granted summary judgment as a matter of law. The judgment is affirmed. In this opinion the other judges concurred. Jeffrey C. Kitching, Plainville's superintendent of schools, also was named as a defendant in the original complaint, but the action later was withdrawn as to him. Although not at issue in the present appeal, we note that § 10-235 does not create "a direct cause of action allowing a person allegedly injured by a negligent employee of a board of education to sue the board directly." Logan v. New Haven, 49 Conn.Supp. 261, 873 A.2d 275 (2005). It is unclear from the plaintiffs' brief on appeal whether they have raised as a claim that the court improperly determined that the defendants were entitled to discretionary act immunity. When asked at oral argument, the plaintiffs' attorney was equivocal at best. Because we agree that Ricky Costa was not an "identifiable person" for the purpose of this exception to governmental immunity, we do not consider whether the court also correctly determined that he was not subjected to "imminent harm."

12490409

TOWN OF STRATFORD v. Wayne N. LEBLANC et al.

Town of Stratford v. Leblanc

2017-08-08

(AC 39179).

1015

1020

167 A.3d 1015

167

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.022978+00:00

Fastcase

TOWN OF STRATFORD v. Wayne N. LEBLANC et al.

TOWN OF STRATFORD v. Wayne N. LEBLANC et al. (AC 39179). Appellate Court of Connecticut. Argued March 8, 2017 Officially released August 8, 2017 Steven A. Colarossi, for the appellant (named defendant). Richard C. Buturla, Milford, for the appellee (plaintiff). Lavine, Alvord and Beach, Js.

2204

13089

BEACH, J. The defendant, Wayne N. LeBlanc, appeals from the judgments of the trial court denying his motions to open the judgments of foreclosure by sale. He claims that the court erred in denying the relief sought in his motions to open. We affirm the judgments of the trial court. The following facts and procedural history are relevant to our resolution of this appeal. In July, 2011, the plaintiff, the town of Stratford, commenced a municipal tax lien foreclosure action against the defendant in an effort to collect payment of outstanding real estate taxes levied on the defendant's property on Sunset Avenue in Stratford. The plaintiff also brought a municipal tax lien foreclosure action against the defendant, seeking to collect outstanding real estate taxes and sewer use charges for the defendant's property on Old South Avenue in Stratford. The actions have similar procedural histories. In both actions, the marshal's returns of service, dated July 19, 2011, indicated that she had served the defendant in hand. On November 8, 2011, the plaintiff filed motions for default for failure to appear against the defendant in the foreclosure actions. The court granted the motions on November 23, 2011. On November 19, 2015, the plaintiff filed motions for judgments of strict foreclosure, stating a tax arrearage of $43,538.02 on the Sunset Avenue property and $82,581.73 on the Old South Avenue property. On November 25, 2015, Southport Secured Lending Fund, LLC, another defendant in the actions; see footnote 1 of this opinion; moved for judgments of foreclosure by sale instead of judgments of strict foreclosure. On December 7, 2015, the court rendered judgments of foreclosure by sale with a sale date of March 5, 2016. In February, 2016, the defendant filed an appearance in both actions. The defendant filed motions to open the judgments in February, 2016. In the defendant's motions to open, he stated that, although he did not dispute that the foreclosure actions were commenced in 2011, he did not remember receiving service of process. He further stated in his motions to open that he operated a salvage yard under the name Kramer's Recycling Used Auto Parts & Auto Body, Inc. (Kramer's), on two contiguous parcels in Stratford, one of which is the Sunset Avenue property, and that a fire occurred at Kramer's some time after November 23, 2011. He further stated in his motions to open that an escrow agreement had been entered into between him, the plaintiff, and other parties, in October, 2013, wherein the defendant would pay, from the insurance proceeds received as a result of the fire, $40,000 to the plaintiff for past taxes due. The escrow agreement that was attached to the motions to open specified that "[t]he payments to each party are not intended to represent a complete satisfaction of debts owed to each party ." The defendant and his counsel both filed affidavits in support of the motions to open in which they attested to the occurrence of the fire, and the defendant's affidavit further specified that the fire occurred in December, 2011. On March 1, 2016, the court held a hearing on the motions to open. The court stated at the hearing that it denied the motions to open, but it extended the sale date to May 7, 2016. This appeal followed. The defendant claims that the court erred in denying the relief sought in his motions to open, which was the opening of the judgments on the merits. He argues that the first statutory requirement of General Statutes § 52-212 (a) was satisfied because a good defense existed at the time that the judgments were rendered. He further contends that the second statutory requirement was satisfied because he was prevented by "mistake, accident or other reasonable cause" from presenting a defense due to (1) the fact that he had little time to gather records necessary to file appearances before a fire destroyed his business records and (2) a mistaken belief that the plaintiff had abandoned the foreclosure actions as a result of having accepted $40,000 and engaging in ongoing discussions with the defendant regarding payment terms. "Pursuant to . § 52-212 (a), a trial court may set aside a default judgment within four months of the date it was rendered provided that the aggrieved party shows reasonable cause or that a good cause of action or defense existed at the time the judgment was entered. The aggrieved party must additionally demonstrate that he was prevented by mistake, accident or other reasonable cause from prosecuting or defending the original action. General Statutes § 52-212 (a)... see also Practice Book § 17-43 (a). "It is well established that the action of the trial court, in either granting or denying a motion to open a default judgment, lies within its sound discretion. A trial court's conclusions are not erroneous unless they violate law, logic, or reason or are inconsistent with the subordinate facts in the finding.... Once the trial court has refused to open a judgment, the action of the court will not be disturbed on appeal unless it has acted unreasonably and in clear abuse of its discretion." (Citation omitted; footnote omitted; internal quotation marks omitted.) Priest v. Edmonds , 295 Conn. 132, 137, 989 A.2d 588 (2010). We conclude that the court did not abuse its discretion. At the March 1, 2016 hearing on the motions to dismiss, the court extended the sale date and denied the motions to open. In the absence of a record showing the reasoning of the trial court, we presume that the court applied the law correctly; we read the record with an eye to support rather than to undermine the judgments. See Blumenthal v. Kimber Mfg., Inc. , 265 Conn. 1, 9, 826 A.2d 1088 (2003). The defendant did not provide the trial court with any sufficient reason for not filing appearances until years after the entry of the defaults. The court reasonably could have found that the defendant's failure to appear in the actions until approximately two months after the judgments were rendered resulted from his own negligence; therefore, he failed to satisfy the "accident, mistake or other reasonable cause" prong of § 52-212. The defendant stated in his affidavit in support of his motions to open that the fire occurred in December, 2011. The defendant was served with notices of the foreclosure actions on July 19, 2011, but failed to appear. On November 8, 2011, the plaintiff filed its motions for default against the defendant for failure to appear. On November 23, 2011, the court issued notices of default as to the defendant for failure to appear. The defendant did not file appearances in the actions until February, 2016. Although the fire and the alleged resulting loss of business records perhaps presented challenges in defending the foreclosure actions, the defendant failed to appear for more than four years after the fire, and the fire did not occur until approximately five months after service of process, and after the defaults had entered. The court reasonably could have concluded that even if the defendant may have been under the impression that the plaintiff was not pursuing the foreclosure actions during a period of time after the defaults entered, he did not have reasonable cause to fail to file appearances prior to the defaults. "The burden of demonstrating reasonable cause for the nonappearance is on the defaulted party, and [t]he judgment should not ordinarily be opened if his failure to appear . resulted from his own negligence." (Internal quotation marks omitted.) People's Bank v. Horesco , 205 Conn. 319, 323, 533 A.2d 850 (1987). "A court should not open a default judgment in cases where the defendants admit they received actual notice and simply chose to ignore the court's authority. . Negligence of a party or his counsel is insufficient for purposes of § 52-212 to set aside a default judgment." (Citations omitted.) State v. Ritz Realty Corp ., 63 Conn.App. 544, 548-49, 776 A.2d 1195 (2001). Because the failure to satisfy either prong of § 52-212 is fatal, and the defendant failed to satisfy the reasonable cause prong, we need not address the good defense prong. See Weinstein & Wisser, P.C. v. Cornelius , 151 Conn.App. 174, 180, 94 A.3d 700 (2014) (movant must satisfy both prongs of § 52-212 ; failure to meet either prong is fatal). Accordingly, we conclude that the court did not abuse its discretion in denying the defendant's motions to open. The judgments are affirmed and the cases are remanded for the purpose of setting new sale dates. In this opinion the other judges concurred. Nicholas Kramer, Jr., Gerald DiFlorio, Fairfield County Bank, Southport Secured Lending Fund, LLC, Estate and Heirs of Nicholas J. Kramer, Jr., were also named as defendants in the foreclosure actions. Because LeBlanc filed the present appeal, we will refer to LeBlanc only as the defendant. The case detail portion of the electronic record in these cases indicates that the motions to open were granted and that a new sale date was ordered. The court stated at the March 1, 2016 hearing on the motions to open that it was not granting the relief sought in the motions to open, but was extending the sale date to help the defendant to "work out all these other problems." The court effectively denied the motions to open for the purpose of revisiting the merits of the actions and, thus, we will treat the court's ruling on the motions as a denial. The plaintiff argues that the defendant's appeal is untimely because he filed the appeal more than twenty days following the notice of the judgments from which he appealed. See Practice Book § 63-1 (a) ("an appeal must be filed within twenty days of the date notice of the judgment or decision is given"). Because the plaintiff failed to file a motion to dismiss the appeal as untimely within ten days of the defendant's filing of the appeal, as required by Practice Book § 66-8, the plaintiff waived its ability to seek dismissal of the appeal as untimely. See Connecticut Commercial Lenders, LLC v. Teague, 105 Conn.App. 806, 809, 940 A.2d 831 (2008). The defendant also contends that the trial court lacked in rem jurisdiction over the properties because the plaintiff was unable to prove the element of its tax foreclosure actions in Practice Book § 10-70 (a) (4) as a result of his $40,000 payment to the plaintiff in 2013. Section 10-70 (a) (4) provides that a plaintiff seeking to foreclose a tax lien must allege and prove that no portion of the tax assessment in question has been paid. In the present case, insurance proceeds from the fire were placed in escrow for partial payment of taxes while the cases were pending in the trial court. "If a court's jurisdiction is based on its authority over the defendant's person, the action and judgment are denominated 'in personam' and can impose a personal obligation on the defendant in favor of the plaintiff. If jurisdiction is based on the court's power over property within its territory, the action is called 'in rem' or 'quasi in rem.' The effect of a judgment in such a case is limited to the property that supports jurisdiction and does not impose a personal liability on the property owner, since he is not before the court." Shaffer v. Heitner, 433 U.S. 186, 199, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977). The defendant has not explained how the concept of in rem jurisdiction pertains to these actions, nor has he provided us with any authority, and we are not aware of any, stating that a trial court lacks jurisdiction if a question arises over whether the plaintiff can satisfy all the elements of a cause of action. General Statutes § 52-212 (a) provides: "Any judgment rendered or decree passed upon a default or nonsuit in the Superior Court may be set aside, within four months following the date on which it was rendered or passed, and the case reinstated on the docket, on such terms in respect to costs as the court deems reasonable, upon the complaint or written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of the judgment or the passage of the decree, and that the plaintiff or defendant was prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense." The defendant stated in his affidavit in support of his motions to open: "I do not recall being served with the summons and complaint which started this action and the related tax foreclosure action. I understand that there is a return of service filed in this case and I have no reason to doubt the veracity of the state marshal who signed it." The marshal's returns of service were dated July 19, 2011, and they indicated that the defendant had been served in hand.

12490408

TOWN OF STRATFORD v. HAWLEY ENTERPRISES, INC., et al.

Town of Stratford v. Hawley Enters., Inc.

2017-08-08

AC 38554.

1011

1015

167 A.3d 1011

167

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.022978+00:00

Fastcase

TOWN OF STRATFORD v. HAWLEY ENTERPRISES, INC., et al.

TOWN OF STRATFORD v. HAWLEY ENTERPRISES, INC., et al. AC 38554. Appellate Court of Connecticut. Argued February 8, 2017 Officially released August 8, 2017 John R. Bryk, for the appellant (substitute defendant). Sean R. Plumb, for the appellee (plaintiff). Sheldon, Beach and Harper, Js. BEACH. J. The defendant IP Media Products, LLC, appeals from the judgment of the trial court awarding damages to it for the taking of certain real property by the plaintiff, the town of Stratford (town). The defendant claims that the court erred in concluding that the town was entitled to recover back taxes from the condemnation award. We affirm the judgment of the trial court. The following facts, as found by the court or apparent from the file, are relevant to our resolution of this appeal. The town took a 22.44 acre parcel in Stratford by eminent domain for use as open space. In October, 2014, pursuant to General Statutes § 8-129 (a) (3), the town filed an amended statement of compensation for the taking of the property, which set the value of the property at $247,500. The town deposited that sum with the clerk of the Superior Court. The defendant held the first mortgage on the property and the debt owed to it was approximately $360,000. It appeared in court in response to the notice of a condemnation hearing. By agreement of the parties, $190,000 was distributed to the defendant, and the remaining $57,500 was retained by the clerk's office. Pursuant to General Statutes § 8-132 (a), the property owner filed an appeal to the Superior Court and an application for review of the development condemnation award. Following an evidentiary hearing, the court issued a memorandum of decision on August 21, 2015. The court determined that the fair market value of the property was $330,000 and awarded interest at a rate of 2 percent per annum on the difference between the taking price of $247,500 and the evaluation by the court until the date of payment. The property owner filed a motion to reargue in which it requested the court to address the issue of whether the town was entitled to recover back taxes owed on the parcel from the condemnation award. In a memorandum of decision entitled "Priority of Funds on Deposit in the Clerk's Office," the court determined that the debt owed to the defendant exceeded the amount deposited with the clerk's office. The town, however, had claimed that the amount of $53,988.46 should be withheld from the amount paid to the defendant and should instead be remitted to the town for payment of unpaid taxes on the property. The defendant claimed that it was entitled to all of the funds deposited with the clerk's office. The court concluded that the town was entitled to receive for payment of back taxes the amount of $53,988.46 from the condemnation award. This appeal followed. The defendant claims that the court erred in concluding that the town was entitled to recover back taxes from the condemnation award. The defendant advances several arguments in support of his claim, none of which persuades us. First, the defendant argues that the town was not entitled to recover back taxes because the town failed to claim an interest in the condemnation award in the statement of compensation as required by § 8-129 (a) (3), which provides that the town shall file with the clerk of the Superior Court a statement of compensation containing "the names of all persons having a record interest therein"; and by § 8-129 (b), which provides that upon the filing of its statement of compensation, the town shall "give notice ... to each person appearing of record as an owner of property affected thereby and to each person appearing of record as a holder of any mortgage, lien, assessment or other encumbrance on such property or interest therein." "Statutory interpretation presents a question of law for the court. ... Our review is, therefore, plenary." (Internal quotation marks omitted.) Atlantic Mortgage & Investment Corp . v. Stephenson , 86 Conn.App. 126, 131-32, 860 A.2d 751 (2004). A basic tenet of statutory construction is that "[s]tatutes must be interpreted to give meaning to their plain language and to provide a unified body of law." (Internal quotation marks omitted.) Reid & Riege, P.C. v. Bulakites , 132 Conn.App. 209, 213, 31 A.3d 406 (2011), cert. denied, 303 Conn. 926, 35 A.3d 1076 (2012). The purpose of the notice provisions of § 8-129 is to protect the interests of encumbrancers and landowners so that they may have an opportunity to be heard regarding the amount of the condemnation award. See Palo v. Rogers , 116 Conn. 601, 604-605, 165 A. 803 (1933). "The single objective of an eminent domain proceeding is to ensure that the property owner shall receive, and that the state shall only be required to pay, the just compensation which the fundamental law promises the owner for the property which the state has seen fit to take for public use." (Internal quotation marks omitted.) Russo v. East Hartford , 4 Conn.App. 271, 274, 493 A.2d 914 (1985). The purpose of the notice provisions of § 8-129 was satisfied here. The town, of course, knew of the filing of the statement of compensation by virtue of the fact that the town itself had filed it, and the town was present at the condemnation hearing. Further, in Palo v. Rogers , supra, 116 Conn. at 605, 165 A. 803, our Supreme Court, interpreting a predecessor statute to the current § 8-129, held that lack of notice of the condemnation effectively could be waived by a party entitled to such notice. Critically, any lack of formal notice to the town did not prejudice the defendant. At oral argument before this court, the defendant was unable to specify any way in which it had been harmed by the statement of compensation. The defendant posited that a condemnee may not properly know whether to file for judicial review of the statement of compensation pursuant to § 8-132 unless that condemnee knows, by virtue of the names listed in the statement of compensation, whether any encumbrancers may claim a portion of the condemnation award. Even if there were some conceivable merit to that position in another set of circumstances, there is no merit on the facts of this case, in which judicial review was sought. The defendant claims as well that the court erred in awarding the town back taxes in the absence of statutory authority or case law specifically permitting such recovery. Municipal real property tax liens have absolute priority over "all transfers and encumbrances in any manner affecting such interest in such item, or any part of it." General Statutes § 12-172. The defendant has not directed us to any authority, nor are we aware of any, that precludes the court in a condemnation action from awarding compensation from the condemnation proceeds to a town for back taxes. We conclude that the court properly awarded the town back taxes from the condemnation award. The defendant finally claims that the court erred in applying foreclosure law when concluding that the town was entitled to recover back taxes from the condemnation award. The court cited foreclosure law, plainly by analogy, for the purpose of determining the priority of the town's tax lien. It was not improper for the court to do so. "[T]he trial court is presumed to have applied the law correctly"; (internal quotation marks omitted) Blumenthal v. Kimber Mfg., Inc ., 265 Conn. 1, 9, 826 A.2d 1088 (2003) ; and the defendant has not shown otherwise. The judgment is affirmed. Other parties were named as defendants in this action and failed to file appearances. They include: Millionair Club, Inc.; City Streets, Inc.; Cell Phone Club, Inc.; Outlaw Boxing Kats, Inc.; Regensburger Enterprises, Inc.; Red Buff Rita, Inc.; Payphones Plus, LLC; 3044 Main, LLC; Albina Pires; Gus Curcio, Jr.; Robin Cummings; Joseph Regensburger; Faye Kish; Richard Urban; Dahill Donofrio; and Dominique Worth. Hawley Enterprises, Inc., was also named in this action, but is not involved in this appeal. We will refer to IP Media Products, LLC, only as the defendant. The property owner, Hawley Enterprises, Inc. (Hawley), filed the application. Hawley and Dade Realty Company I, LLC, for which IP Media Products, LLC, was later substituted, were the only defendants to file appearances and present evidence at trial. The priorities of the parties may be determined by motion to the Superior Court pursuant to General Statutes § 8-132a (a). The defendant's reliance on New Haven Redevelopment Agency v. Estate of Costello, 1 Conn.App. 20, 467 A.2d 924 (1983), is misplaced. There, the city of New Haven specified in its statement of compensation that the property was subject to taxes in its favor. That fact does not necessarily mean that the converse is true, that a municipality is precluded from recovering back taxes if it does not include itself in the notice. This court did not address that issue in New Haven Redevelopment Agency. The defendant also argues that it, rather than the town, filed the application for payment of moneys deposited pursuant to § 8-132a, and therefore the town cannot recover back taxes from the condemnation award. Section 8-132a does not impose such a requirement. It provides that upon motion, the trial court may decide the equity owed to each claimant. The trial court here performed that task. See General Statutes § 8-132a (a) ("[a]ny person making application for payment of moneys deposited in court ... or claiming an interest in the compensation ... may make a motion to the superior court ... for a determination of the equity of the parties having an interest in such moneys"). The defendant argues as well, on general principle, that condemnation ought not be sanctioned unless there is perfect compliance with every statutory requirement, whether or not the alleged shortcoming has any effect in a particular factual situation. There is no authority for this proposition.

1656

9965

In this opinion the other judges concurred.

12491548

STATE of Connecticut v. Julio TORRES

State v. Torres

2017-11-07

AC 38571

202

206

174 A.3d 202

174

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:29.056835+00:00

Fastcase

STATE of Connecticut v. Julio TORRES

STATE of Connecticut v. Julio TORRES AC 38571 Appellate Court of Connecticut. Argued September 13, 2017 Officially released November 7, 2017 James B. Streeto, senior assistant public defender, for the appellant (defendant). Bruce R. Lockwood, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Robin D. Krawczyk, senior assistant state's attorney, for the appellee (state). Keller, Mullins and Lavery, Js. The listing of judges reflects their seniority status on this court as of the date of oral argument.

1616

9870

LAVERY, J. The defendant, Julio Torres, was convicted of murder in violation of General Statutes § 53a-54a and was sentenced to fifty years of imprisonment. He appealed, claiming, among other things, that portions of the trial court's instruction on reasonable doubt constituted plain error. The defendant also claimed that the cumulative effect of these portions of the instruction constituted plain error. This court affirmed the defendant's conviction, holding that he waived his challenge to the reasonable doubt instruction under State v. Kitchens , 299 Conn. 447, 10 A.3d 942 (2011). See State v. Torres , 168 Conn. App. 611, 627-29, 148 A.3d 238 (2016). The defendant filed a petition for certification to appeal, claiming that this court improperly declined to review the reasonable doubt instruction for plain error. Our Supreme Court granted the petition and remanded the case to this court for consideration of his plain error claim in light of its recent decision in State v. McClain , 324 Conn. 782, 812-15, 155 A.3d 209 (2017), which held that a Kitchens waiver does not preclude appellate relief under the plain error doctrine. State v. Torres , 325 Conn. 919, 163 A.3d 618 (2017). After further review, we affirm the judgment of the trial court. The following facts are pertinent to our decision. At trial, the court gave the following instruction to the jury concerning reasonable doubt: "The meaning of reasonable doubt can be arrived at by emphasizing the word reasonable. It is not a surmise, a guess or mere conjecture. It is not a doubt raised by anyone simply for the sake of raising a doubt. It is such a doubt as in serious affairs that concern you, you would pay attention to; that is, such a doubt as would cause reasonable men and women to hesitate to act upon it in matters of importance. It is not a hesitation springing from any feelings of pity or sympathy for the accused or any other person who might be affected by your decision. It is, in other words, a real doubt, an honest doubt, a doubt that has . its foundation in the evidence or lack of evidence. It is doubt that is honestly entertained and is reasonable in light of the evidence after a fair comparison and careful examination of the entire evidence." (Emphasis added.) The defendant claims that the following portions of that instruction constitute plain error: that reasonable doubt "is not a surmise, a guess or mere conjecture"; that "[i]t is such a doubt as in serious affairs that concern you, you would pay attention to; that is such a doubt as would cause reasonable men and women to hesitate to act upon it in matters of importance"; and that it is "a real doubt, an honest doubt, a doubt that has . its foundation in the evidence [or] lack of evidence." The defendant also claims that the cumulative effect of these portions of the instruction constitutes plain error. We disagree. "An appellate court addressing a claim of plain error first must determine if the error is indeed plain in the sense that it is patent [or] readily [discernible] on the face of a factually adequate record, [and] also . obvious in the sense of not debatable. . This determination clearly requires a review of the plain error claim presented in light of the record. Although a complete record and an obvious error are prerequisites for plain error review, they are not, of themselves, sufficient for its application. . [T]he 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. . [I]n addition to examining the patent nature of the error, the reviewing court must examine that error for the grievousness of its consequences in order to determine whether reversal under the plain error doctrine is appropriate. A party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice. . [Previously], we described the two-pronged nature 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. . "It is axiomatic that, [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. . Put another way, plain error review is reserved for only the most egregious errors. When an error of such a magnitude exists, it necessitates reversal." (Citations omitted; emphasis omitted; footnote omitted; internal quotation marks omitted.) State v. McClain , supra, 324 Conn. at 812-14, 155 A.3d 209. After reviewing the defendant's claim against this standard, we conclude that it is without merit because it is well settled that the trial court's instruction on reasonable doubt did not constitute plain error, let alone error. In fact, our Supreme Court has consistently upheld instructions with language similar to the portions of the instruction that the defendant challenges here. See, e.g., State v. Coward , 292 Conn. 296, 317, 972 A.2d 691 (2009) (rejecting challenges to instruction that reasonable doubt is "a real doubt, an honest doubt" and "the kind of doubt which, in serious affairs which concern you in everyday life, you would pay heed and attention to" [internal quotation marks omitted] ); State v. Davis , 283 Conn. 280, 332, 929 A.2d 278 (2007) (rejecting challenges to instruction that reasonable doubt is not "a surmise, a guess or a conjecture" and "a real or honest doubt" [internal quotation marks omitted] ); State v. Ross , 269 Conn. 213, 335, 849 A.2d 648 (2004) (rejecting challenges to instruction that reasonable doubt "is such a doubt as would cause reasonable men and women to hesitate to act upon it in matters of importance" and "a real doubt, an honest doubt" [internal quotation marks omitted] ); State v. Ferguson , 260 Conn. 339, 369-71, 796 A.2d 1118 (2002) (rejecting challenge to instruction that reasonable doubt is "a real doubt," "an honest doubt," and "such a doubt that as in the serious affairs of everyday life you would pay heed to" [internal quotation marks omitted] ); State v. Lemoine , 256 Conn. 193, 201-204, 770 A.2d 491 (2001) (rejecting challenges to instruction that reasonable doubt is "more than a guess or surmise" and "a real doubt, an honest doubt, a doubt which has its foundation in the evidence or lack of evidence" [internal quotation marks omitted] ); State v. Velasco , 253 Conn. 210, 246-49, 751 A.2d 800 (2000) (rejecting challenge to instruction that reasonable doubt is "a real doubt, an honest doubt, a doubt which has its foundation in the evidence or lack of evidence" [internal quotation marks omitted] ); State v. Griffin , 253 Conn. 195, 204-205, 749 A.2d 1192 (2000) (rejecting challenges to instruction that reasonable doubt is "not a surmise, a guess or mere conjecture," "a real doubt, an honest doubt, a doubt that has its foundations in the evidence or lack of evidence," and "such a doubt, as in serious affairs that concern you, you would heed, that is, such a doubt as would cause reasonable men and women to act in matters of importance" [internal quotation marks omitted] ). "It is axiomatic that we are bound by our Supreme Court precedent." (Internal quotation marks omitted.) State v. Colon , 71 Conn. App. 217, 246, 800 A.2d 1268, cert. denied, 261 Conn. 934, 806 A.2d 1067 (2002). Furthermore, we reject the defendant's claim that even if the individual portions of the instruction were not erroneous, their cumulative effect constituted plain error. The defendant relies on Gaines v. Kelly , 202 F.3d 598, 607 (2d Cir. 2000), as support for the notion that several components that individually are not error can be aggregated to create error, but our Supreme Court, citing State v. Harris , 182 Conn. 220, 230-33, 438 A.2d 38 (1980), rejected the cumulative error approach regarding claims of instructional error in 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). In addition, this court previously has rejected arguments to "abandon our Supreme Court precedent [in Tillman ] and adopt the cumulative error approach followed by the United States Court of Appeals for the Second Circuit [in Gaines ]." State v. Billie , 123 Conn. App. 690, 705-706, 2 A.3d 1034 (2010). "Whether a Supreme Court holding should be reevaluated and possibly discarded is not for this court to decide." (Internal quotation marks omitted.) Id., at 706, 2 A.3d 1034. On the basis of our Supreme Court's precedent, we conclude that it is not debatable that the instruction on reasonable doubt given by the trial court in the present case did not constitute plain error, let alone error. Therefore, our inquiry ends there, and we do not address any claim of manifest injustice. The judgment is affirmed. In this opinion the other judges concurred.

12491547

STATE of Connecticut v. Ricardo O. MYERS

State v. Myers

2017-11-14

AC 39621

197

202

174 A.3d 197

174

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:29.056835+00:00

Fastcase

STATE of Connecticut v. Ricardo O. MYERS

STATE of Connecticut v. Ricardo O. MYERS AC 39621 Appellate Court of Connecticut. Argued September 12, 2017 Officially released November 14, 2017 S. Max Simmons, assigned counsel, for the appellant (defendant). Marjorie Allen Dauster, senior assistant state's attorney, with whom, on the brief, were Patrick Griffin, state's attorney, and Gary Nicholson, former senior assistant state's attorney, for the appellee (state). Lavine, Elgo and Flynn, Js.

2926

17512

FLYNN, J. It has been long settled in our appellate procedure that an appellant must raise and analyze in his first and principal brief any matters necessary for the determination of his appeal, and cannot do so for the first time in his reply brief. The defendant, Ricardo O. Myers, was convicted, after a jury trial, of murder in violation of General Statutes § 53a-54a and two counts of assault in the first degree in violation of General Statutes § 53a-59 (a) (5). On appeal, the defendant claims that the trial court erred in excluding the video interview of a witness who was unavailable to testify. Because the defendant failed to brief any analysis of how the alleged erroneous ruling was harmful, until he filed a reply brief, his claim is unreviewable. Accordingly, we affirm the judgment of the trial court. The jury reasonably could have found the following facts. On May 17, 2013, the defendant, along with Dwight Crooks and Gary Pope, was at the Lazy Lizard club in New Haven. The club let out during the early hours of May 18, 2013, and the trio made its way out with the crowd. Once outside, an argument ensued between the defendant's group and another group that was across the street. The argument escalated to a physical altercation before officers of the New Haven police stepped in and caused the groups to disperse. The defendant and his friends then got into Pope's car and drove around before parking in a different lot not far from the club. The three then headed out on foot to meet someone they knew when they encountered again the group from Lazy Lizard. Some provocative remarks were made and the two groups moved toward each other. Crooks testified at trial that, at this point, he heard gunshots, and he turned to see the defendant holding a gun. Two bullets struck and killed Tirrell Drew, who was a member of the other group, and stray bullets injured two bystanders. The bullets recovered from Drew's body were found to have been fired from a .40 caliber semiautomatic Glock handgun owned by the defendant and seized from his residence by the police on June 14, 2013, nearly a month after the shooting. The defendant subsequently was arrested and charged with murder and two counts of assault in the first degree. The issue on appeal arises because six days after the shooting, a person named Latrell Rountree, while in custody on an unrelated matter, revealed to the police that he was Drew's friend and was present when Drew was shot. Rountree identified Pope as the shooter. At trial, the defendant attempted to call Rountree as a witness, but could not secure his presence. The defendant then sought to admit into evidence a video recording of Rountree's interview with the police, wherein Rountree identified Pope as the shooter. After hearing argument, the trial court ruled that the video was not admissible under the residual exception to the hearsay rule. On June 3, 2015, the jury found the defendant guilty on all three counts, and the court rendered judgment accordingly. This appeal followed. The defendant claims that the trial court abused its discretion in refusing to admit the video under the residual exception to the hearsay rule. The state contends that the court did not abuse its discretion. Additionally, as a threshold matter, the state also contends that this court should not reach the defendant's claim because he failed to analyze in his principal brief how he was harmed by the alleged erroneous ruling. In his reply brief, the defendant presents his harmful error analysis for the first time. At oral argument, the defendant asserted that the harm resulting from the court's ruling is implicit in his principal brief because this court has enough information before it to review harm. Because the defendant failed to provide any analysis in his principal brief as to how he was harmed by the trial court's ruling, we decline to review his claim. "It is well settled that, absent structural error, the mere fact that a trial court rendered an improper ruling does not entitle the party challenging that ruling to obtain a new trial. An improper ruling must also be harmful to justify such relief. . The harmfulness of an improper ruling is material irrespective of whether the ruling is subject to review under an abuse of discretion standard or a plenary review standard. . When the ruling at issue is not of constitutional dimensions, the party challenging the ruling bears the burden of proving harm." (Internal quotation marks omitted.) State v. Toro , 172 Conn. App. 810, 816, 162 A.3d 63, cert. denied, 327 Conn. 905, 170 A.3d 2 (2017). "It is a fundamental rule of appellate review of evidentiary rulings that if [the] error is not of constitutional dimensions, an appellant has the burden of establishing that there has been an erroneous ruling which was probably harmful to him." (Internal quotation marks omitted.) Id., at 817, 162 A.3d 63. It is also "a well established principle that arguments cannot be raised for the first time in a reply brief." (Internal quotation marks omitted.) State v. Garvin , 242 Conn. 296, 312, 699 A.2d 921 (1997) ; see also SS-II, LLC v. Bridge Street Associates , 293 Conn. 287, 302, 977 A.2d 189 (2009) ; Calcano v. Calcano , 257 Conn. 230, 244, 777 A.2d 633 (2001) ; Commissioner of Health Services v. Youth Challenge of Greater Hartford, Inc. , 219 Conn. 657, 659 n.2, 594 A.2d 958 (1991). "[I]t is improper to raise a new argument in a reply brief, because doing so deprives the opposing party of the opportunity to respond in writing." (Internal quotation marks omitted.) Markley v. Dept. of Public Utility Control , 301 Conn. 56, 74, 23 A.3d 668 (2011). In the present case, the defendant appeals from an evidentiary ruling of a nonconstitutional nature. As such, it is the defendant's responsibility to analyze, in his principal brief, the harm that flows from an evidentiary ruling. The defendant did not do this but, instead, referenced harm only in his reply brief. Under our rules of appellate practice, issues cannot be raised and analyzed for the first time in an appellant's reply brief. State v. Garvin , supra, 242 Conn. at 312, 699 A.2d 921. This rule is a sound one because the appellee is entitled to but one brief and should not therefore be left to speculate at how an appellant may analyze something raised for the first time in a reply brief, which the appellee cannot answer. See State v. Thompson , 98 Conn. App. 245, 248, 907 A.2d 1257, cert. denied, 280 Conn. 946, 912 A.2d 482 (2006). Specifically with regard to evidentiary rulings, this court, on multiple occasions, has declined to review claims where the appellant fails to analyze harmful error in his or her principal brief. See, e.g., State v. Toro , supra, 172 Conn. App. at 820, 162 A.3d 63 ; State v. Baker , 168 Conn. App. 19, 37, 145 A.3d 955, cert. denied, 323 Conn. 932, 150 A.3d 232 (2016). Recently, in State v. Holmes , 176 Conn. App. 156, 183, 169 A.3d 264 (2017), this court deemed the appellant's claim abandoned, where he failed to brief the harm suffered from an evidentiary ruling that he claimed was erroneous. Unless these Appellate Court rulings are overturned en banc, they are binding on us. State v. Ortiz , 133 Conn. App. 118, 122, 33 A.3d 862 (2012), aff'd, 312 Conn. 551, 93 A.3d 1128 (2014). Rulings of our Supreme Court reflect a plethora of authority that prohibits us from reaching the merits of the appellant's claim. See, e.g., Markley v. Dept. of Public Utility Control , supra, 301 Conn. at 74, 23 A.3d 668 (claims or arguments cannot be raised for first time in reply brief); Grimm v. Grimm , 276 Conn. 377, 393-94 n.19, 886 A.2d 391 (2005) (same), cert. denied, 547 U.S. 1148, 126 S.Ct. 2296, 164 L.Ed. 2d 815 (2006) ; Eskin v. Castiglia , 253 Conn. 516, 528 n.8, 753 A.2d 927 (2000) (same); see also Calcano v. Calcano , supra, 257 Conn. at 244, 777 A.2d 633 (claims of error must be raised in "original" brief); State v. Holmes , supra, 176 Conn. App. at 184-85, 169 A.3d 264 (harm must be raised in "principal" brief); State v. Toro , supra, 172 Conn. App. at 818, 162 A.3d 63 (harm must be shown in "main" brief). The defendant also argues, however, that harm was implicit in his principal brief because this court has enough information before it to review harm. Essentially, the defendant contends that because the excluded evidence imputed culpability to a third party, the harm from its exclusion is so obvious that he did not need to brief and analyze it in his principal brief. This argument misses the point that there must be some analysis of how the defendant was harmed from the claimed error given the other evidence before the jury. See State v. Toro , supra, 172 Conn. App. at 818-19, 162 A.3d 63. As our precedent instructs, this needs to be done in writing in the defendant's first and principal brief on appeal so that the appellee has a fair opportunity to respond to it in writing and the reviewing court has the full benefit of the appellee's written response. Here, the jury reasonably could have found that the defendant shot Drew to death by firing two bullets that entered Drew's body. Both bullets came from the defendant's gun and were recovered from Drew's body. The defendant still was in possession of this gun a month after the shooting. Crooks testified at the defendant's trial under oath and was cross-examined on his testimony that it was the defendant who shot Drew. Rountree, on the other hand, refused to honor a subpoena and give testimony subject to cross-examination under oath. The defendant was convicted of murder for the killing, as well as for two counts of assault in the first degree for shooting two other men, who did not die, as part of the same altercation. Under these circumstances, we are not convinced that any harm resulting from the exclusion of Rountree's interview is self-evident in light of the evidence presented at trial. Accordingly, because the defendant failed to brief and analyze in his primary brief the resulting harm from the court's exclusion of the video recording of Rountree's interview, we decline to consider whether the trial court abused its discretion. The judgment is affirmed. In this opinion ELGO, J., concurred. Although § 53a-54a was the subject of amendments in 2015; see Public Acts 2015, No. 15-84, § 9; those amendments have no bearing on the merits of this appeal. In the interest of simplicity, we refer to the current revision of the statute. Section 8-9 of the Connecticut Code of Evidence provides: "A statement that is not admissible under any of the foregoing exceptions is admissible if the court determines that (1) there is a reasonable necessity for the admission of the statement, and (2) the statement is supported by equivalent guarantees of trustworthiness and reliability that are essential to other evidence admitted under traditional exceptions to the hearsay rule." The defendant also argues that where a video recording adequately captures a witness' interrogation by law enforcement, such that the fact finder's ability to judge the declarant's credibility is unencumbered, that video should be admissible under the residual exception to the hearsay rule. Because we do not reach the merits of this appeal, we do not address this argument. The trial court then issued a capias, but Rountree could not be located.

12488794

Francisco JIMENEZ v. COMMISSIONER OF CORRECTION

Jimenez v. Comm'r of Corr.

2016-12-13

AC 37860

853

854

151 A.3d 853

151

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.008363+00:00

Fastcase

Francisco JIMENEZ v. COMMISSIONER OF CORRECTION

Francisco JIMENEZ v. COMMISSIONER OF CORRECTION AC 37860 Appellate Court of Connecticut. Argued September 21, 2016 Officially released December 13, 2016 Douglas H. Butler, assigned counsel, for the appellant (petitioner). Harry Weller, senior assistant state's attorney, with whom, on the brief, were Brian Preleski, state's attorney, and Kelly Masi, assistant state's attorney, for the appellee (respondent). Keller, Prescott and Bear, Js.

252

1663

PER CURIAM. The petitioner, Francisco Jimenez, appeals, following the granting of his petition for certification to appeal, from the judgment of the habeas court denying his second petition for a writ of habeas corpus. He sets forth claims of constitutional violations because of the actions of trial counsel, and he claims deficient performance of trial counsel, appellate counsel, and first habeas counsel. The petitioner bases these claims on trial counsel's (1) allegedly discriminatory and improper statements during closing argument; (2) failure to pursue a motion to suppress a purportedly inculpatory statement by the petitioner; and (3) failure to call a witness. Following a trial, the habeas court denied the petitioner's second petition for a writ of habeas corpus. After careful review of the record and the parties' appellate briefs, their oral arguments before this court, and the habeas court's thoughtful and well reasoned memorandum of decision, we conclude that the court properly denied the petition for a writ of habeas corpus. See Harris v. Commissioner of Correction , 126 Conn.App. 453, 458, 11 A.3d 730, cert. denied, 300 Conn. 932, 17 A.3d 69 (2011). There is no error. The judgment is affirmed.

12488782

John DOE v. The BOY SCOUTS OF AMERICA CORPORATION et al.

John Doe v. Boy Scouts of Am. Corp.

2016-12-08

SC 19516

841

844

151 A.3d 841

151

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

2021-08-27T20:57:14.008363+00:00

Fastcase

Justice McDonald joined Justice Eveleigh in his concurrence and dissent.

John DOE v. The BOY SCOUTS OF AMERICA CORPORATION et al.

John DOE v. The BOY SCOUTS OF AMERICA CORPORATION et al. SC 19516 Supreme Court of Connecticut. December 8, 2016 Chief Justice Rogers The motion of the defendant-appellant, filed October 21, 2016, for reconsideration en banc, having been presented to the court, it is hereby ordered denied. PALMER and VERTEFEUILLE, Js., did not participate in the discussion or decision of this motion. ZARELLA, J., with whom ESPINOSA and ROBINSON, Js., join, dissenting from the denial of the named defendant's motion for reconsideration en banc. In its decision in this matter, a majority of this court concluded that the thirty year statute of limitations set forth in General Statutes § 52-577d applied to the plaintiff's claims, instead of the two year limitation period for negligence claims set forth in General Statutes § 52-584. Doe v. Boy Scouts of America Corp. , 323 Conn. 303, 331, 340, 147 A.3d 104 (2016) (opinion announcing judgment); see also id., at 354, 147 A.3d 104 (Eveleigh , J. , concurring and dissenting) (noting agreement with part V of opinion announcing judgment, in which statute of limitations issue was addressed). I dissented in part in that case, concluding that § 52-584 applied to and barred the plaintiff's claims. See id., at 343-44, 147 A.3d 104 (Zarella , J. , concurring in part and dissenting in part). The named defendant, The Boy Scouts of America Corporation, filed a motion for reconsideration, principally arguing that this court overlooked its earlier decision in Greco v. United Technologies Corp. , 277 Conn. 337, 890 A.2d 1269 (2006), in reaching its conclusion in the present case. The defendant claims that Greco relied on reasoning that undermines the decision in the present case, requiring reconsideration. Because I agree with the defendant that we should consider the impact of Greco on the present case, I would grant the defendant's motion for reconsideration. The majority's refusal to do so leaves its decision in conflict with our prior decision in Greco and thus creates dissonance in our case law. I therefore respectfully dissent from the majority's decision to deny the defendant's motion. It appears from the record that this court overlooked our prior decision in Greco when deciding the present case. Neither the plaintiff, John Doe, nor the defendant cited Greco in their briefs to this court, but the defendant brought it to the court's attention in a letter sent to the court eighteen days after oral argument. Nevertheless, neither the opinion announcing the judgment nor the separate concurring and dissenting opinions cited the case, and I acknowledge that I was unaware of Greco and its relevance to the present case when I issued my concurrence and dissent. Our decision in Greco is significant to our resolution of the present case. The parties in the present case disputed whether the thirty year limitation period in § 52-577d or the two year limitation period in § 52-584 applies to the plaintiff's claims. Doe v. Boy Scouts of America Corp. , supra, 323 Conn. at 331, 147 A.3d 104. Section 52-577d provides: "Notwithstanding the provisions of section 52-577 , no action to recover damages for personal injury to a minor, including emotional distress, caused by sexual abuse, sexual exploitation or sexual assault may be brought by such person later than thirty years from the date such person attains the age of majority." (Emphasis added.) In my concurring and dissenting opinion, I concluded that, because § 52-577d expressly preempts only General Statutes § 52-577, the legislature did not intend for § 52-577d to preempt any statute of limitations other than § 52-577. See Doe v. Boy Scouts of America Corp. , supra, at 345-49, 147 A.3d 104 (Zarella , J. , concurring in part and dissenting in part). Section 52-577 applies generally to intentional torts but not to negligence claims, such as those made in the present case. See id., at 332-33, 147 A.3d 104. The statute of limitations for negligence claims can be found in § 52-584, which provides for a two year statute of limitations, and, although § 52-577d expressly preempts § 52-577, it does not expressly preempt the limitations period in § 52-584. I therefore concluded that the legislature's decision not to have § 52-577d displace § 52-584 indicated that the legislature did not believe that the longer, thirty year statute of limitations for tortious sexual misconduct also applied to negligent misconduct claims; rather, the legislature understood that § 52-577d would apply only to claims involving intentional conduct. See id., at 344, 147 A.3d 104 (Zarella , J. , concurring in part and dissenting in part). Our decision in Greco applied the same logic to reach a similar conclusion concerning other statutes of limitations for certain tort claims. Greco involved a claim for wrongful death under General Statutes § 52-555, and a statute of limitations for tort claims involving harm from hazardous chemicals set forth in the version of General Statutes § 52-577c(b) applicable when those claims were brought. Greco v. United Technologies Corp. , supra, 277 Conn. at 341-42, 348, 890 A.2d 1269. The statute of limitations for wrongful death is two years from the date of death, whereas the limitation period for harm caused by hazardous chemicals is two years from the date the harm is discovered. Compare General Statutes § 52-555 with General Statutes § 52-577c (b). The plaintiffs in Greco claimed that the hazardous chemical statute of limitations applied to their claims, whereas the defendants argued that the wrongful death limitation period applied. See Greco v. United Technologies Corp. , supra, at 342, 348, 890 A.2d 1269. Like the statute at issue in the present case, § 52-577c(b) also contains a "notwithstanding" clause that preempts certain other statute of limitations provisions. The version of § 52-577c(b) applicable in Greco provided that it applied "[n]otwithstanding the provisions of sections 52-577 and 52-577a," but it made no mention of displacing the wrongful death limitations period in § 52-555. As a result, we concluded in Greco that, "to the extent that § 52-577c(b) otherwise may be applicable under the present factual circumstances, that statutory provision expressly preempts [General Statutes] §§ 52-577 and 52-577a but, notably, does not purport to preempt § 52-555. If the legislature had intended for § 52-577c(b) to preempt § 52-555, it easily could have done so by enumerating § 52-555, along with §§ 52-577 and 52-577a, as one of the statutes of limitation[s] preempted by § 52-577c(b).... The fact that it did not do so is strong evidence that the legislature did not intend for § 52-577c(b) to preempt § 52-555 ." (Citation omitted; emphasis added.) Greco v. United Technologies Corp. , supra, at 349, 890 A.2d 1269. Greco therefore establishes a principle that applies to our interpretation of other statutes of limitations containing similar "notwithstanding" clauses. That is, when the legislature expressly preempts certain statutes of limitations, but not others, we interpret the legislature's enumeration of specific statutes as "strong evidence" that the legislature did not intend to disturb other statutes of limitations not expressly preempted. Id. Application of this principle from Greco to the present case demonstrates that the legislature did not intend for § 52-577d to preempt the statute of limitations for negligence claims. If the legislature had intended for § 52-577d to apply to negligent conduct and thus to displace the statute of limitations for negligence claims in § 52-584, it easily could have expressed that intention in the statutes. A majority of the justices concluded in the present case that the legislature's omission of § 52-584"merely creates ambiguity" about the legislature's intent; Doe v. Boy Scouts of America Corp. , supra, 323 Conn. at 333, 147 A.3d 104 ; but that position is inconsistent with our decision in Greco . As we explained in Greco , the legislature's decision to expressly preempt certain statutes of limitations while omitting others does not create an ambiguity about the legislature's intent but instead provides "strong evidence that the legislature did not intend for" § 52-577d to preempt the existing statute of limitations for negligent conduct. Greco v. United Technologies Corp. , supra, 277 Conn. at 349, 890 A.2d 1269. Our decision in Greco also undermines the persuasiveness of the principal authorities on which the opinion announcing the judgment relied. A majority of the justices in the present case ultimately concluded that the legislature intended that the thirty year limitations period in § 52-577d preempted § 52-584, despite the legislature's failure to state that intention explicitly. In reaching this conclusion, that majority relied on two United States District Court decisions addressing the same question presented in the present case and reaching the same conclusion as the majority. See Doe v. Boy Scouts of America Corp. , supra, 323 Conn. at 334-36, 147 A.3d 104, citing Doe v. Indian Mountain School, Inc. , 921 F.Supp. 82 (D. Conn. 1995), and Almonte v. New York Medical College , 851 F.Supp. 34 (D. Conn. 1994). Those decisions were, however, decided before our decision in Greco , and, thus, the court in those cases did not have the benefit of its reasoning. The holding in Greco clearly conflicts with the reasoning employed by the District Court, rendering the federal cases of no persuasive value. Compare Greco v. United Technologies Corp. , supra, 277 Conn. at 349, 890 A.2d 1269, with Doe v. Indian Mountain School, Inc. , supra, at 83-84, and Almonte v. New York Medical College , supra, at 37. Ironically, if the present case had been filed in the District Court rather than in state court, the District Court could rely solely on its prior decisions because they are in conflict with our decision in Greco . By relying on stale precedent from federal courts, rather than its own, more recent decisions, this court has effectively abdicated its role as the final arbiter of the meaning of Connecticut law. For the foregoing reasons, the logic in Greco strongly undermines the holding of the majority of justices in the present case. The majority's decision has created a conflict with our prior decision in Greco , and the majority's refusal to address the impact of Greco leaves the state of our law in question. The opinion announcing the judgment made no attempt to distinguish the principle adopted in Greco -indeed, it did not even cite the decision. In my view, the court would do well to at least explain why it is denying reconsideration and thus overruling, sub silentio, the principle applied in Greco . Accordingly, I respectfully dissent. Chief Justice Rogers authored the opinion announcing the judgment, in which Judge Sheldon concurred. Justice McDonald joined Justice Eveleigh in his concurrence and dissent. We hereinafter refer to the named defendant as the defendant. The District Court in Almonte acknowledged that the question it was addressing was one of first impression but nevertheless declined to certify the question to this court. See Almonte v. New York Medical College, supra, 851 F.Supp. at 35 n.1. The District Court should in the future consider certifying such questions of law, as we have encouraged through our adoption of Practice Book § 82-1 et seq. Doing so will allow this court to better serve its institutional role and help to avoid unnecessary dissonance between state and federal courts in their respective applications of Connecticut law.

1855

11584

--------

12488779

STATE of Connecticut v. Samuel M.

State v. Samuel M.

2016-12-27

SC 19578

815

823

151 A.3d 815

151

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

2021-08-27T20:57:14.008363+00:00

Fastcase

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

STATE of Connecticut v. Samuel M.

STATE of Connecticut v. Samuel M. SC 19578 Supreme Court of Connecticut. Argued October 17, 2016 Officially Released December 27, 2016 Kathryn W. Bare, assistant state's attorney, with whom, on the brief, were Patricia M. Froehlich, former state's attorney, and Andrew J. Slitt, assistant state's attorney, for the appellant (state). Bryan P. Fiengo, for the appellee (defendant). Rogers, C.J., and Palmer, Zarella, Eveleigh, McDonald and Robinson, Js. In accordance with our policy of protecting the privacy interests of the victims of sexual assault and the crime of risk of injury to a child, we decline to identify the victim or others through whom the victim's identity may be ascertained. See General Statutes § 54-86e.

4472

26687

ROGERS, C.J. In this certified appeal, we are asked to determine whether the state has satisfied its burden to prove that a defendant whose case was automatically transferred from the juvenile docket to the regular criminal docket of the Superior Court was at least fourteen years of age at the time he allegedly engaged in the criminal conduct underlying the charged offenses. The defendant, Samuel M., was charged by juvenile information with the crimes of sexual assault in the first degree in violation of General Statutes § 53a-70 and risk of injury to a child in violation of General Statutes § 53-21, based on seven incidents involving his minor cousin (victim), which the state alleged to have occurred "on or about June, 2009." Based on the seriousness of the offenses and the allegation that the defendant's criminal conduct occurred in June, 2009, when the defendant was fourteen years old, the case was automatically transferred from the juvenile docket to the regular criminal docket of the Superior Court pursuant to General Statutes (Rev. to 2009) § 46b-127 (a). After a jury trial, the defendant was convicted of two counts of sexual assault in the first degree and one count of risk of injury to a child based on two separate incidents. The Appellate Court vacated the defendant's convictions, holding that the trial court had improperly denied the defendant's posttrial motion to dismiss the amended information because the state had failed to prove beyond a reasonable doubt that the two incidents had occurred after the defendant's fourteenth birthday. State v. Samuel M. , 159 Conn.App. 242, 284-85, 123 A.3d 44 (2015). Because we agree with the Appellate Court that the state did not establish under any burden of proof that the defendant was fourteen years of age at the time he committed the offenses of which he was convicted, we affirm the judgment of the Appellate Court. On the basis of the evidence, the jury reasonably could have found the following facts. The defendant and the victim are first cousins. At all relevant times, the defendant, the victim, and their grandparents lived in houses on the same street in close proximity to each other. The defendant was born on September 17, 1994. The victim was born on December 31, 1998. In June, 2009, when the victim attended middle school, he would go to his grandparents' house on Tuesday and Thursday afternoons after school until one of his parents arrived home. On those days, the defendant was also frequently at their grandparents' house. On one occasion, the victim and the defendant went into the woods behind the defendant's home where they stopped near a rock. The defendant forced the victim to remove his clothing and engage in oral sex. The defendant threatened to beat the victim with a baseball bat if he did not comply. On another occasion, after taking a bus after school to his grandparents' house, the victim went to his house to complete his chores. The defendant subsequently entered the victim's house using a spare key that was kept at their grandparents' house. The defendant then pushed the victim upstairs to the victim's bedroom. The defendant removed the victim's clothing and forced him to engage in oral and anal sex. The victim testified that these incidents, and the five other alleged incidents for which the defendant was not convicted, occurred when the victim was "nine or ten" years old. He further testified that the incidents began in the autumn of the year he was in fourth grade and occurred over a period of time with each incident approximately one month apart. The victim testified that in the fall of 2013, the year of the trial, he would be entering his sophomore year of high school. The victim's mother testified that during the second half of June, 2009, she discovered a photograph of the victim's penis on her cell phone. When she confronted the victim about the photograph, he disclosed to her that he had had sexual contact with the defendant. After he made this disclosure in June, 2009, the victim and the defendant were never left alone together. The following additional facts and procedural history are relevant to this appeal. After the Connecticut State Police conducted an investigation in 2010, which included a forensic interview of the victim, the state obtained a juvenile arrest warrant for the defendant based on allegations of seven incidents of sexual assault. In the juvenile information/arrest warrant, the defendant was charged with juvenile delinquency on the basis of committing sexual assault in the first degree in violation of § 53a-70, and risk of injury to a child in violation of § 53-21, in or about June, 2009. The juvenile court automatically transferred the defendant's case to the regular criminal docket of the Superior Court pursuant to § 46b-127 (a) (1), because the defendant had been charged with a class A and a class B felony occurring in or about June, 2009, when he was fourteen years of age. Subsequently, the defendant was arraigned in Superior Court on the regular criminal docket. Prior to trial, the state filed an information charging the defendant with seven counts of sexual assault in the first degree by use of force in violation of § 53a-70 (a) (1), seven counts of sexual assault in the first degree for sexual intercourse with a victim under the age of thirteen in violation of § 53a-70 (a) (2), and one count of risk of injury to a child in violation of § 53-21 (a) (2). During trial, the victim testified in detail regarding seven alleged incidents, each of which formed the basis for violations of both § 53a-70 (a) (1) and (2). At the close of the state's case-in-chief, the defendant moved for a judgment of acquittal as to all counts. The trial court granted the defendant's motion for judgment of acquittal on counts eleven and twelve on the ground that the conduct alleged therein did not meet the definition of sexual contact pursuant to § 53a-70. The jury found the defendant not guilty of six counts of sexual assault in the first degree by use of force and three counts of sexual assault in the first degree for sexual intercourse with a victim under the age of thirteen. The jury found the defendant guilty of one count of risk of injury to a child and three counts of sexual assault in the first degree for sexual intercourse with a victim under the age of thirteen. The defendant thereafter moved for a judgment of acquittal on the four counts of which he was convicted, and also moved to dismiss the amended information and to transfer his case to the juvenile docket. The trial court granted the defendant's motion for judgment of acquittal on the sexual assault alleged in count two on the ground that the testimony at trial was insufficient to prove that the incident, which the victim had testified was the first of the seven alleged incidents, occurred "on or about June, 2009," when the defendant unquestionably was fourteen years old. The court found, however, that the evidence, viewed in the light most favorable to the state, reasonably permitted a finding beyond a reasonable doubt that the incidents forming the bases of counts six, ten, and fifteen alleging, respectively, two counts of sexual assault in the first degree and risk of injury to a child, occurred "on or about June, 2009," and therefore, the court denied the motion for a judgment of acquittal on those counts. The court also denied the defendant's motion to dismiss counts six, ten, and fifteen of the amended information without further analysis. Subsequently, the court sentenced the defendant to a total effective term of five years of incarceration followed by five years of special parole. On appeal to the Appellate Court, the defendant claimed that the evidence was insufficient to support his conviction of any of the charged offenses due to inconsistencies in the victim's testimony at trial and also that the trial court improperly denied his motion to dismiss based on the state's failure to prove that he committed any of the offenses of which he was convicted after attaining the age of fourteen. State v. Samuel M. , supra, 159 Conn.App. at 245, 123 A.3d 44. The Appellate Court held that the evidence was sufficient to support his conviction, but that the trial court had improperly denied the defendant's motion to dismiss. Id., at 245-46, 123 A.3d 44. Specifically, the Appellate Court held that "if the statutory age criteria defining the grounds for transfer under § 46b-127 (a) cease to be met, the defendant may not be prosecuted, convicted, and sentenced as an adult." Id., at 264, 123 A.3d 44. The Appellate Court went on to state that "when the state seeks to prosecute and convict a child for felony offenses, the state bears the burden of establishing the child's eligibility to be tried and sentenced as an adult. Thus, to be punishable as a criminal offense in adult court, the offense must be shown to have occurred on or after the defendant's fourteenth birthday, and this must be proved beyond a reasonable doubt." Id., at 268, 123 A.3d 44. Looking to the facts of the present case, the Appellate Court concluded that "[w]hile the original warrant, alleging that the acts occurred in June, 2009, may have been facially sufficient for a mandatory transfer to the regular criminal docket pursuant to § 46b-127 (a), the evidence to support the state's allegations as to the time frame of the defendant's alleged conduct was woefully deficient. The state failed to establish, by any burden of proof, that the defendant was at least fourteen years old when he engaged in the conduct underlying the convicted offenses. Hence, the court had no authority to render judgment against him as an adult offender. Accordingly, we conclude that the court erred in denying the defendant's motion to dismiss the amended information and transfer his case back to the juvenile docket." Id., at 284, 123 A.3d 44. This court granted the state's petition for certification to appeal. State v. Samuel M. , 319 Conn. 955, 125 A.3d 534 (2015). The state asks this court to determine: "1. Did the Appellate Court correctly determine that in [cases] automatically transferred from the juvenile docket of the Superior Court to the regular docket of the Superior Court pursuant to [§ 46b-127 (a) ], the state bears the burden of establishing the child's eligibility to be tried and sentenced as an adult? 2. If the answer to the first question is in the affirmative, did the Appellate Court correctly determine that the state must meet its burden with proof beyond a reasonable doubt? 3. Did the Appellate Court apply the proper standard of review to the trial court's decision denying the defendant's motion to dismiss and transfer the case to the juvenile docket? [and] 4. If the answer to the third question is in the affirmative, did the Appellate Court correctly determine that the state failed to establish, by any burden of proof, that the defendant was at least fourteen years old at the time he committed the crimes?" Id. At oral argument before this court, the state conceded that, during the course of the prosecution, if the defendant properly raises and challenges his age at the time of the offense, then the state bears the burden to make a prima facie case that satisfies the statutory elements necessary for transfer. The state claims that it satisfied its burden to prove that the defendant was at least fourteen years old at the time of the conduct forming the basis for his convictions, by either a preponderance of the evidence or beyond a reasonable doubt. The defendant asserts that the Appellate Court properly held that the state failed to prove, either beyond a reasonable doubt or by a preponderance of the evidence, that he was at least fourteen years old at the time of the conduct underlying his convictions. We agree with the defendant that the state failed to prove by any standard of proof that he was at least fourteen years of age at the time of the criminal conduct forming the basis of the convictions. We initially address the standard of review for a trial court's denial of a motion to dismiss. "Because a motion to dismiss effectively challenges the jurisdiction of the court, asserting that the state, as a matter of law and fact, cannot state a proper cause of action against the defendant, our review of the court's legal conclusions and resulting denial of the defendant's motion to dismiss is de novo." (Internal quotation marks omitted.) State v. Ward , 306 Conn. 698, 707, 52 A.3d 591 (2012). "Factual findings underlying the court's decision, however, will not be disturbed unless they are clearly erroneous. . The applicable legal standard of review for the denial of a motion to dismiss, therefore, generally turns on whether the appellant seeks to challenge the legal conclusions of the trial court or its factual determinations." (Internal quotation marks omitted.) State v. Golodner , 305 Conn. 330, 338-39, 46 A.3d 71 (2012). The determination of whether the defendant was fourteen years of age at the time of the criminal conduct is a factual determination subject to a clearly erroneous standard of review. Insofar as the Appellate Court stated that the standard of review for underlying factual determinations was de novo; State v. Samuel M. , supra, 159 Conn.App. at 268, 123 A.3d 44 ; we disagree. General Statutes § 46b-145 provides in relevant part that "[n]o child shall be prosecuted for an offense before the regular criminal docket of the Superior Court except as provided in section 46b-127 ." "The General Assembly thus has expressed a preference for shielding children from criminal liability except in clearly circumscribed situations." State v. Torres , 206 Conn. 346, 360, 538 A.2d 185 (1988). "There is no dispute that adjudication as a juvenile rather than prosecution as an adult carries significant benefits, chief among which are a determination of delinquency rather than criminality; General Statutes § 46b-121 ; confidentiality; General Statutes § 46b-124 ; limitations with respect to sentencing; General Statutes § 46b-140 ; erasure of files; General Statutes § 46b-146 ; and isolation from the adult criminal population. General Statutes § 46b-133 ; see also In re Tyvonne M. , 211 Conn. 151, 158-61, 558 A.2d 661 (1989)." State v. Angel C ., 245 Conn. 93, 103, 715 A.2d 652 (1998). "The additional protections afforded juveniles . demonstrate the legislature's intent that children accused of wrongdoing be accorded different treatment from adults." (Citations omitted.) State v. Torres , supra, at 360, 538 A.2d 185. The limitation on the prosecution of juveniles before the regular criminal docket, however, is not a limitation on the subject matter jurisdiction of the court. "Rather than implicating subject matter jurisdiction, issues relating to transfer between the juvenile and the regular criminal docket involve considerations that are analogous to those of the law of venue." State v. Kelley , 206 Conn. 323, 332, 537 A.2d 483 (1988). "The juvenile transfer statutes establish a detailed plan for transferring a case to the regular criminal docket." State v. Torres , supra, 206 Conn. at 356, 538 A.2d 185. General Statutes (Rev. to 2009) § 46b-127 (a) provides in relevant part: "The court shall automatically transfer from the docket for juvenile matters to the regular criminal docket of the Superior Court the case of any child charged with the commission of a capital felony, a class A or B felony or a violation of section 53a-54d, provided such offense was committed after such child attained the age of fourteen years . The child shall be arraigned in the regular criminal docket of the Superior Court at the next court date following such transfer . The file of any case so transferred shall remain sealed until the end of the tenth working day following such arraignment unless the state's attorney has filed a motion pursuant to this subsection, in which case such file shall remain sealed until the court makes a decision on the motion. A state's attorney may, not later than ten working days after such arraignment, file a motion to transfer the case of any child charged with the commission of a class B felony or a violation of subdivision (2) of subsection (a) of section 53a-70 to the docket for juvenile matters for proceedings in accordance with the provisions of this chapter. The court sitting for the regular criminal docket shall, after hearing and not later than ten working days after the filing of such motion, decide such motion." General Statutes (Rev. to 2009) § 46b-127 (c) provides in relevant part: "Upon the effectuation of the transfer, such child shall stand trial and be sentenced, if convicted, as if such child were seventeen years of age. . If the action is dismissed or nolled or if such child is found not guilty of the charge for which such child was transferred or of any lesser included offenses, the child shall resume such child's status as a juvenile until such child attains the age of eighteen years." After a case has been transferred from the juvenile docket to the regular criminal docket, a defendant challenging the statutory criteria for transfer may move to dismiss the case pursuant to General Statutes § 54-56 and Practice Book § 41-8. See State v. Angel C. , supra, 245 Conn. at 122, 715 A.2d 652 ; State v. Torres , supra, 206 Conn. at 350, 538 A.2d 185. Once the defendant challenges the ability of the court to convict and sentence him as an adult based upon his age at the time of the underlying criminal conduct for which the jury returned a guilty verdict, we hold that the state bears the burden to prove the defendant's age. The state is clearly in the best position to prove the date of the alleged conduct, particularly because in any given case the defendant is most likely going to deny that he engaged in any illegal conduct. Assuming, without deciding, that a preponderance of the evidence is the proper burden of proof to apply to the present case, we hold that the state failed to meet its burden in this case. The defendant's motion to dismiss was submitted to the trial court after the jury returned its verdict. The state filed a memorandum in opposition to the motion to dismiss, arguing that a reasonable jury could have found, based on the evidence admitted at trial, that the defendant was fourteen years of age at the time of the criminal conduct underlying the guilty verdicts. Therefore, we evaluate the evidence presented at trial to determine whether the state satisfied its burden to prove that the defendant was fourteen years of age. The victim testified that he was born on December 31, 1998. The arresting police officer testified that at the time of his arrest the defendant stated to the officer that his date of birth was September 17, 1994. On September 17, 2008, when the defendant turned fourteen years old, the victim was nine years and eight and one-half months old. Therefore, to establish that the defendant was fourteen years of age at the time of the criminal conduct, the state was required to prove either that the conduct occurred at any period in time when the victim was at least ten years old or that the conduct occurred when the victim was only nine years old, but the date of the conduct was on or after September 17, 2008, the defendant's fourteenth birthday. The victim testified that the alleged incidents occurred when he was nine or ten years old, and the incidents occurred over a period of time with approximately one month between each successive incident. Accordingly, if the first incident occurred when the victim first turned nine years old, on December 31, 2007, then all of the incidents could have occurred prior to the defendant's fourteenth birthday on September 17, 2008. The victim testified that the first incident was the one "behind the barn," which was the offense charged in counts one and two. Other than the fact that the remaining six incidents occurred after this initial incident, the victim did not testify as to any specific time period for those six incidents or provide evidence from which a finder of fact could make a reasonable inference as to the timing thereof or the defendant's age. The victim's mother testified that she discovered the photograph of the victim's penis on her cell phone and confronted him about it in June of 2009, but there was no evidence introduced at trial regarding when the photograph was taken in relation to either its discovery or the last incident of sexual assault. We agree with the Appellate Court that, in the absence of any testimony as to when the photograph was taken or the proximity of the taking of the photograph to any of the alleged incidents, no finder of fact could use the discovery of the photograph to make a reasonable inference that the last alleged incident occurred in June, 2009. Even if such an inference were reasonable, there is no evidence from which a finder of fact could reasonably infer which of the alleged incidents was the last incident. In the absence of any testimony as to the order or the specific time period of the individual incidents, a finder of fact could not reasonably infer that the specific incidents alleged in counts six and ten, or any of the conduct that could have supported count fifteen, occurred after the defendant's fourteenth birthday. Therefore, in ruling on the defendant's motion to dismiss, there was no evidence that the trial court could have relied on to find that the criminal conduct underlying counts six, ten, and fifteen occurred on or after September 17, 2008, the date of the defendant's fourteenth birthday. In sum, once the defendant challenged the transfer of his case to the regular criminal docket on the basis of his age, the state did not establish, by any burden of proof, that the defendant was at least fourteen years of age at the time of the criminal conduct underlying the jury's verdict of guilt. The judgment of the Appellate Court is affirmed with respect to vacating the defendant's conviction and remanding the case to the trial court with direction to grant the defendant's motion to dismiss and to transfer the case to the juvenile docket, and the case is remanded for a new trial on counts six, ten, and fifteen in accordance with this opinion. In this opinion the other justices concurred. Hereinafter, all references to § 46b-127 (a) are to the 2009 revision of the statute. We note, and the state conceded at oral argument before this court, that, in cases where the underlying conduct is alleged to have occurred both before and after the defendant's fourteenth birthday, the state typically specifies in the information that the alleged conduct occurred after the date of the defendant's fourteenth birthday and the trial court charges the jury that it must find that the charged conduct occurred after that date. The state did not follow this procedure in the present case. Because this practice reduces the risk of a juvenile defendant being convicted for conduct that, due to the defendant's age, should remain on the juvenile docket, we support this practice. Because we agree that the state failed to establish by any burden of proof that the defendant was fourteen years of age at the time of the charged offenses, we do not address the parties' remaining arguments as to what burden applies. In this appeal, the defendant does not claim that the trial court lacked subject matter jurisdiction and the state does not dispute the defendant's ability to raise his claim regarding his age at the time of the offenses through a motion to dismiss. Section 46b-127 (a) has been amended several times since 2009 and, most recently, the legislature amended that subsection to increase the age of a defendant eligible for transfer to fifteen years of age at the time of the alleged conduct and to exclude certain class B felonies from the automatic transfer provision. See Public Acts 2015, No. 15-183, § 1. General Statutes § 54-56 provides: "All courts having jurisdiction of criminal cases shall at all times have jurisdiction and control over informations and criminal cases pending therein and may, at any time, upon motion by the defendant, dismiss any information or order such defendant discharged if, in the opinion of the court, there is not sufficient evidence or cause to justify the bringing or continuing of such information or the placing of the person accused therein on trial." Practice Book § 41-8 provides: "The following defenses or objections, if capable of determination without a trial of the general issue, shall, if made prior to trial, be raised by a motion to dismiss the information: "(1) Defects in the institution of the prosecution including any grand jury proceedings; "(2) Defects in the information including failure to charge an offense; "(3) Statute of limitations; "(4) Absence of jurisdiction of the court over the defendant or the subject matter; "(5) Insufficiency of evidence or cause to justify the bringing or continuing of such information or the placing of the defendant on trial; "(6) Previous prosecution barring the present prosecution; "(7) Claim that the defendant has been denied a speedy trial; "(8) Claim that the law defining the offense charged is unconstitutional or otherwise invalid; "or (9) Any other grounds." We agree with the Appellate Court that this conclusion does not entitle the defendant to a judgment of acquittal because the timing of the offense is not an element of the crimes and there was sufficient evidence of each element of the crimes of which he was convicted. In light of the many differences between a delinquency proceeding on the juvenile docket and a criminal trial on the regular docket, some of which may have significant impacts on the outcome of a case, the appropriate remedy in this instance is a transfer to the juvenile docket for a new trial and not merely a transfer for judgment and sentencing.

12488736

STATE of Connecticut v. Ray BOYD

State v. Boyd

2016-12-27

SC 19673

355

358

151 A.3d 355

151

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

2021-08-27T20:57:14.008363+00:00

Fastcase

STATE of Connecticut v. Ray BOYD

STATE of Connecticut v. Ray BOYD SC 19673 Supreme Court of Connecticut. Argued September 12, 2016 Officially Released December 27, 2016 Alexandra R. Harrington, deputy assistant public defender, with whom was Adele V. Patterson, senior assistant public defender, for the appellant (defendant). Michele C. Lukban, senior assistant state's attorney, Rocky Hill, with whom, on the brief, were Michael Dearington, state's attorney, New Haven, John P. Doyle, Jr., senior assistant state's attorney, and Melissa Patterson, assistant state's attorney, for the appellee (state). Rogers, C.J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson, Js.

1512

9381

PALMER, J. The defendant, Ray Boyd, appeals from the trial court's dismissal of his motion to correct an illegal sentence for lack of jurisdiction. The defendant, who was sentenced to fifty years imprisonment without parole in 1992 for a crime that he committed when he was seventeen years old, contends that he is entitled to resentencing on the basis of recent changes to juvenile sentencing law. We discussed this precise issue in State v. Delgado , 323 Conn. 801, 151 A.3d 345 (2016), and our resolution of the defendant's appeal is controlled by our decision in that case. We affirm the trial court's dismissal of the defendant's motion to correct. The following facts and procedural history are relevant to the present appeal. The defendant was convicted of murder in violation of General Statutes § 53a-54a and sentenced by the trial court, W. Hadden, J. , to a term of fifty years imprisonment with no opportunity for parole. On appeal, the Appellate Court affirmed the judgment of conviction. State v. Boyd , 36 Conn.App. 516, 525, 651 A.2d 1313, cert. denied, 232 Conn. 912, 654 A.2d 356, cert. denied, 516 U.S. 828, 116 S.Ct. 98, 133 L.Ed.2d 53 (1995). The facts underlying the defendant's conviction are set forth in that decision. In 2013, the defendant filed a motion to correct his sentence pursuant to Practice Book § 43-22, contending that a prison term that is equivalent to life imprisonment without parole constituted cruel and unusual punishment in violation of the eighth amendment to the United States constitution and article first, § 8 and 9, of the Connecticut constitution. The defendant further argued that his sentence was illegal because he had not been given a meaningful opportunity for release from prison, and that the sentence had been imposed in an illegal manner because he was not afforded an individualized sentencing hearing at which the court considered specific mitigating factors associated with his young age at the time of the crime of which he was convicted. See Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 2469, 183 L.Ed.2d 407 (2012) (requiring sentencing court to consider youth related mitigating factors when imposing sentence of life imprisonment without parole); State v. Riley , 315 Conn. 637, 658-59, 110 A.3d 1205 (2015) (sentencing court must consider age related evidence in mitigation when deciding whether to irrevocably sentence juvenile offender to term of life imprisonment, or equivalent, without parole), cert. denied, - U.S. -, 136 S.Ct. 1361, 194 L.Ed.2d 376 (2016) ; see also Casiano v. Commissioner of Correction , 317 Conn. 52, 62, 115 A.3d 1031 (2015) (sentencing considerations that were identified in Miller apply retroactively in collateral proceedings), cert. denied sub nom. Semple v. Casiano , - U.S. -, 136 S.Ct. 1364, 194 L.Ed.2d 376 (2016). The trial court, Clifford, J. , did not reach the merits of the motion to correct but dismissed the motion for lack of jurisdiction, from which dismissal the defendant appeals. In the present case, as in Delgado , we affirm the trial court's dismissal of the defendant's motion to correct for lack of jurisdiction. As we explained in Delgado , an allegation that a sentence is illegal or was imposed in an illegal manner is a necessary predicate to a trial court's jurisdiction to correct a sentence. See State v. Delgado , supra, 323 Conn. at 812, 151 A.3d 345. When the defendant in the present case filed his motion to correct, he was serving a sentence that was equivalent to life imprisonment and he was not eligible for parole. As a result, he could raise a colorable claim that his sentence was illegal or imposed in an illegal manner on the ground that the trial court had failed to consider youth related factors as required by Miller. Following the enactment of No. 15-84 of the 2015 Public Acts (P.A. 15-84), however, the defendant is now eligible for parole and can no longer claim that he is serving a sentence of life imprisonment, or its equivalent, without parole. In considering this issue in Delgado , we explained that "[t]he eighth amendment, as interpreted by Miller , does not prohibit a court from imposing a sentence of life imprisonment with the opportunity for parole for a juvenile homicide offender, nor does it require the court to consider the mitigating factors of youth before imposing such a sentence. . Rather, under Miller , a sentencing court's obligation to consider youth related mitigating factors is limited to cases in which the court imposes a sentence of life, or its equivalent, without parole. . As a result, the defendant's sentence no longer falls within the purview of Miller, Riley and Casiano , which require consideration of youth related mitigating factors only if the sentencing court imposes a sentence of life without parole." (Citations omitted; emphasis in original.) Id., at 810-11, 151 A.3d 345. In sum, because Miller, Riley and Casiano do not require a trial court to consider any particular mitigating factors associated with a juvenile's young age before imposing a sentence that includes an opportunity for parole, the defendant can no longer allege, after the enactment of P.A. 15-84, that his sentence was imposed in an illegal manner on the ground that the trial court failed to take these factors into account. We therefore conclude that the defendant has not raised a colorable claim of invalidity that, if decided in his favor, would require resentencing. See id., at 812-13, 151 A.3d 345. In the absence of such an allegation, the trial court does not have jurisdiction over the motion to correct. The trial court's dismissal of the defendant's motion to correct an illegal sentence is affirmed. In this opinion the other justices concurred. Practice Book § 43-22 provides: "The judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner." The eighth amendment to the United States constitution provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." On appeal, the defendant has not raised or briefed any separate arguments or claims under the state constitution. Because, for purposes of this appeal, the defendant does not contend that the state constitution affords him any greater rights than he possesses under the federal constitution, we limit our analysis to his federal constitutional claim. See, e.g., Barros v. Barros, 309 Conn. 499, 507 n.9, 72 A.3d 367 (2013). The trial court, Clifford, J., concluded that a motion to correct was not the appropriate mechanism for addressing an alleged Miller violation and dismissed the motion for lack of jurisdiction. The state now concedes, and we agree, that the trial court incorrectly concluded that it lacked jurisdiction over the motion to correct at that time. The motion, at that point, raised a viable claim insofar as it alleged that a sentence of life imprisonment without parole had been imposed without consideration of youth related mitigating factors. As we discuss subsequently in this opinion, however, the defendant is now eligible for parole and can no longer claim that he is serving a sentence of life imprisonment without parole. As a result, the defendant's claim no longer falls within the purview of Miller, and the trial court no longer has jurisdiction over the motion to correct. See State v. Delgado, supra, 323 Conn. at 813, 151 A.3d 345 (case fell within exception to general rule that " 'jurisdiction once acquired is not lost or divested by subsequent events' " because juvenile sentencing laws had changed so significantly that claims that required resentencing when motion to correct was filed no longer require resentencing). Section 1 of No. 15-84 of the 2015 Public Acts, codified at General Statutes (Supp. 2016) § 54-125a, provides in relevant part: "(f) (1) Notwithstanding the provisions of subsections (a) to (e), inclusive, of this section, a person convicted of one or more crimes committed while such person was under eighteen years of age, who is incarcerated on or after October 1, 2015, and who received a definite sentence or total effective sentence of more than ten years for such crime or crimes prior to, on or after October 1, 2015, may be allowed to go at large on parole in the discretion of the panel of the Board of Pardons and Paroles for the institution in which such person is confined, provided (A) if such person is serving a sentence of fifty years or less, such person shall be eligible for parole after serving sixty per cent of the sentence or twelve years, whichever is greater ."

12488735

STATE of Connecticut v. Melvin DELGADO

State v. Delgado

2016-12-27

SC 19663

345

355

151 A.3d 345

151

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

2021-08-27T20:57:14.008363+00:00

Fastcase

STATE of Connecticut v. Melvin DELGADO

STATE of Connecticut v. Melvin DELGADO SC 19663 Supreme Court of Connecticut. Argued September 12, 2016 Officially Released December 27, 2016 Jennifer B. Smith, for the appellant (defendant). Melissa Patterson, assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and John F. Fahey and Michele C. Lukban, senior assistant state's attorneys, for the appellee (state). Rogers, C.J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson, Js.

5042

31803

PALMER, J. Under recent changes to juvenile sentencing law, a court may not sentence a juvenile who has been convicted of murder to life imprisonment without parole unless the court considers mitigating factors associated with the juvenile's young age at the time of the crime. In the present appeal, we must determine how these changes in juvenile sentencing law impact individuals who were sentenced before the changes occurred. The defendant, Melvin Delgado, was sentenced to sixty-five years imprisonment without parole in 1996 for crimes that he committed when he was sixteen years old. Although he is now eligible for parole following the passage of No. 15-84 of the 2015 Public Acts (P.A. 15-84), he filed a motion to correct his allegedly illegal sentence, claiming that he is entitled to be resentenced because the judge who sentenced him failed to consider youth related mitigating factors. The trial court rejected the defendant's claim and dismissed his motion to correct, and the defendant has appealed to this court. We affirm the trial court's dismissal of the motion to correct. The following facts and procedural history are relevant to the present appeal. The defendant was convicted of accessory to murder in violation of General Statutes § 53a-54a and 53a-8, and commission of a class A, B or C felony with a firearm in violation of General Statutes § 53-202k. On December 16, 1996, the trial court, Corrigan , J. , rendered judgment sentencing the defendant to a total effective sentence of sixty-five years imprisonment without parole. On appeal, this court affirmed the judgment with respect to the murder conviction but vacated the judgment with respect to the weapons charge. State v . Delgado , 247 Conn. 616, 634, 725 A.2d 306 (1999). The facts underlying the defendant's conviction are set forth in that decision. In 2014, the defendant filed a motion to correct his sentence pursuant to Practice Book § 43-22, contending that a prison term that is equivalent to life imprisonment without parole constitutes cruel and unusual punishment in violation of the eighth amendment to the United States constitution and article first, § 8 and 9, of the Connecticut constitution. The defendant further argued that his sentence was illegal because he had not been given a meaningful opportunity for release from prison, and that the sentence had been imposed in an illegal manner because he was not afforded an individualized sentencing hearing at which the court could consider specific mitigating factors associated with his young age at the time of the crime of which he was convicted. The trial court, Alexander , J. , did not reach the merits of the motion to correct but dismissed the motion for lack of jurisdiction, from which dismissal the defendant now appeals. I PRINCIPLES OF JUVENILE SENTENCING LAW Before turning to the defendant's claims, we consider recent changes to juvenile sentencing law that guide our analysis. As this court explained in State v . Riley , 315 Conn. 637, 110 A.3d 1205 (2015), cert. denied, - U.S. -, 136 S.Ct. 1361, 194 L.Ed.2d 376 (2016), three United States Supreme Court cases have "fundamentally altered the legal landscape for the sentencing of juvenile offenders to comport with the ban on cruel and unusual punishment under the eighth amendment to the federal constitution. The court first barred capital punishment for all juvenile offenders; Roper v . Sim mons , 543 U.S. 551, 575, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) ; and then barred life imprisonment without the possibility of parole for juvenile nonhomicide offenders. Graham v . Florida , 560 U.S. 48, [82], 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). Most recently, in Miller v . Alabama , 567 U.S. 460, 132 S.Ct. 2455, 2460, 183 L.Ed.2d 407 (2012), the court held that mandatory sentencing schemes that impose a term of life imprisonment without parole on juvenile homicide offenders, thus precluding consideration of the offender's youth as mitigating against such a severe punishment, violate the principle of proportionate punishment under the eighth amendment." (Footnote omitted.) State v. Riley , supra, 640, 110 A.3d 1205. The holding in Miller "flows from the basic precept of justice that punishment for crime should be graduated and proportioned to both the offender and the offense." (Internal quotation marks omitted.) Miller v . Alabama , supra, 2463. In Riley , this court characterized Miller as standing for two propositions: "(1) that a lesser sentence than life without parole must be available for a juvenile offender; and (2) that the sentencer must consider age related evidence as mitigation when deciding whether to irrevocably sentence juvenile offenders to a [term of life imprisonment, or its equivalent, without parole]." State v . Riley , supra, 315 Conn. at 653, 110 A.3d 1205. This court therefore concluded that "the dictates set forth in Miller may be violated even when the sentencing authority has discretion to impose a lesser sentence than life without parole if it fails to give due weight to evidence that Miller deemed constitutionally significant before determining that such a severe punishment is appropriate." Id. Because the record in Riley "[did] not clearly reflect that the court considered and gave mitigating weight to the defendant's youth and its hallmark features when considering whether to impose the functional equivalent to life imprisonment without parole," we concluded that the defendant in Riley was entitled to a new sentencing proceeding. Id., 660-61, 110 A.3d 1205. Several months after Riley was decided, this court concluded that the required sentencing considerations identified in Miller applied retroactively in collateral proceedings. Casiano v . Commissioner of Correc tion , 317 Conn. 52, 62, 115 A.3d 1031 (2015), cert. denied sub nom. Semple v . Casiano , - U.S. -, 136 S.Ct. 1364, 194 L.Ed.2d 376 (2016). During the same time frame, the Connecticut legislature enacted P.A. 15-84. Section 1 of P.A. 15-84, codified at General Statutes (Supp. 2016) § 54-125a, ensures that all juveniles who are sentenced to more than ten years imprisonment are eligible for parole. Section 2 of P.A. 15-84, codified as amended at General Statutes (Supp. 2016) § 54-91g, requires a sentencing judge to consider a juvenile's age and any youth related mitigating factors before imposing a sentence following a juvenile's conviction of any class A or class B felony. Subsequently, the United States Supreme Court decided Montgomery v . Louisiana , - U.S. -, 136 S.Ct. 718, 736, 193 L.Ed.2d 599 (2016), in which the court concluded that Miller , in prohibiting a mandatory life sentence without parole for juvenile offenders, had set forth a substantive rule of constitutional law that applied retroactively in cases on collateral review. In Montgomery , the petitioner, Henry Montgomery, was found " 'guilty without capital punishment' "; id., 725 ; in connection with a murder he had committed when he was seventeen years old, and which carried an automatic sentence of life without parole. Id., 725-26. The United States Supreme Court, after concluding that Miller announced a substantive rule of law, noted that "[g]iving Miller retroactive effect . does not require [s]tates to relitigate sentences, let alone convictions, in every case [in which] a juvenile offender received mandatory life without parole. A [s]tate may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them. . Allowing those offenders to be considered for parole ensures that juveniles whose crimes reflected only transient immaturity-and who have since matured-will not be forced to serve a disproportionate sentence in violation of the [e]ighth [a]mendment. . Those prisoners who have shown an inability to reform will continue to serve life sentences. The opportunity for release will be afforded to those who demonstrate the truth of Miller 's central intuition-that children who commit even heinous crimes are capable of change." (Citation omitted.) Id., 736. Most recently, the Appellate Court considered the impact of P.A. 15-84 and concluded that, "for juvenile offenders who were entitled to be, but were not, sentenced with consideration of the mitigating factors of youth as required by Miller , [an opportunity for parole under P.A. 15-84] offers a constitutionally adequate remedy under the eighth amendment to those who qualify for parole under its provisions." State v. Williams-Bey , 167 Conn.App. 744, 763, 144 A.3d 467 (2016). Accordingly, the Appellate Court rejected the defendant's claim in Williams-Bey that he was entitled to resentencing. Id., 765-66, 144 A.3d 467. II JURISDICTION With this background in mind, we consider the merits of the defendant's claim that the trial court improperly dismissed his motion to correct for lack of jurisdiction. "[A] generally accepted rule of the common law is that a sentence cannot be modified by the trial court . if the sentence was valid and execution of it has commenced." (Internal quotation marks omitted.) State v. Parker , 295 Conn. 825, 834, 992 A.2d 1103 (2010). If the trial court imposes an invalid sentence, however, it retains limited jurisdiction to correct the sentence. Id., 835, 992 A.2d 1103. The procedures for correcting an invalid sentence are set forth in Practice Book § 43-22. In Parker , this court discussed the concept of invalidity and clarified that § 43-22 permits a trial court to correct both illegal sentences and sentences that were imposed in an illegal manner. Id., 837, 992 A.2d 1103. In the present case, the defendant alleged in his motion to correct that his sentence (1) was illegal because it constituted cruel and unusual punishment under the eighth amendment, as interpreted by Miller , (2) was imposed in an illegal manner because the trial court did not consider the mitigating factors of youth in sentencing him to the equivalent of life without parole, and (3) was illegal because it did not afford him a reasonable opportunity for parole. The defendant now concedes that his third and final claim has been resolved by the enactment of P.A. 15-84, which ensures that he is eligible for parole. We therefore turn to whether the trial court had jurisdiction over the motion to correct on the basis of the allegations that the sentence was illegal and imposed in an illegal manner in violation of the eighth amendment. We apply plenary review in addressing this question of law. See id., 840, 992 A.2d 1103. "The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings, including on appeal." (Internal quotation marks omitted.) State v. Taylor , 91 Conn.App. 788, 791, 882 A.2d 682, cert. denied, 276 Conn. 928, 889 A.2d 819 (2005). At issue is whether the defendant has raised a colorable claim within the scope of Practice Book § 43-22"that would, if the merits of the claim were reached and decided in the defendant's favor, require correction of a sentence." Id., 793, 882 A.2d 682. In the absence of a colorable claim requiring correction, the trial court has no jurisdiction to modify the sentence. See id., 793-94, 882 A.2d 682. When the defendant filed his motion to correct in 2014, he was serving a sentence of sixty-five years, which is equivalent to life imprisonment, and he was not eligible for parole. Because Miller prohibits a trial court from sentencing a juvenile convicted of murder to life imprisonment without parole unless the court has considered youth related mitigating factors, the defendant's allegation that the trial court failed to give due consideration to these factors raised a colorable claim of invalidity that, if decided in his favor, would require resentencing. See, e.g., State v. Williams-Bey , supra, 167 Conn.App. at 760-61, 144 A.3d 467. Following the enactment of P.A. 15-84, however, the defendant is now eligible for parole and can no longer claim that he is serving a sentence of life imprisonment, or its equivalent, without parole. The eighth amendment, as interpreted by Miller , does not prohibit a court from imposing a sentence of life imprisonment with the opportunity for parole for a juvenile homicide offender, nor does it require the court to consider the mitigating factors of youth before imposing such a sentence. See Miller v. Alabama , supra, 132 S. Ct. at 2463-69. Rather, under Miller , a sentencing court's obligation to consider youth related mitigating factors is limited to cases in which the court imposes a sentence of life, or its equivalent, without parole. Id., 2469. As a result, the defendant's sentence no longer falls within the purview of Miller, Riley and Casiano , which require consideration of youth related mitigating factors only if the sentencing court imposes a sentence of life without parole. See State v. Riley , supra, 315 Conn. at 658, 110 A.3d 1205 ; see also State v. Casiano , supra, 317 Conn. at 73, 115 A.3d 1031. This conclusion is consistent with the law in other jurisdictions that have considered this issue and have concluded that Miller simply does not apply when a juvenile's sentence provides an opportunity for parole; that is, a sentencing court has no constitutionally founded obligation to consider any specific youth related factors under such circumstances. Moreover, the reasoning in these cases is consistent with the United States Supreme Court's decision in Montgomery , in which the court clarified that the rights delineated in Graham and Miller apply retroactively to individuals who have been sentenced to life imprisonment without parole. See Montgomery v . Louisiana , supra, 136 S. Ct. at 736. The court also indicated that, for those who had received such a sentence without consideration of youth related mitigating factors, resentencing was not necessary because constitutional concerns would be satisfied by providing such individuals with an opportunity for parole. See id. Because Miller and Riley do not require a trial court to consider any particular mitigating factors associated with a juvenile's young age before imposing a sentence that includes an opportunity for parole, the defendant can no longer allege, after the passage of P.A. 15-84, that his sentence was imposed in an illegal manner on the ground that the trial court failed to take these factors into account. Such an allegation is an essential predicate to the trial court's jurisdiction to correct the sentence. An allegation that the court failed to consider youth related factors before imposing a sentence of life with parole is not sufficient to establish a jurisdictional basis for correcting a sentence. See State v. Parker , supra, 295 Conn. at 846-47, 992 A.2d 1103 (allegation that contents of presentence investigation report had not been reviewed with defendant did not provide basis for jurisdiction to correct sentence when defendant did not allege that report had been withheld from counsel, that purported inaccuracies were materially false or that court relied on inaccuracies in imposing sentence); State v. Taylor , supra, 91 Conn.App. at 794, 882 A.2d 682 (court lacked jurisdiction when motion failed to state claim requiring correction of sentence). We therefore conclude that the defendant has not raised a colorable claim of invalidity that, if decided in his favor, would require resentencing. In reaching this conclusion, we are mindful of the general principle that "jurisdiction once acquired is not lost or divested by subsequent events." (Internal quotation marks omitted.) RAL Management, Inc . v . Valley View Associates , 278 Conn. 672, 687, 899 A.2d 586 (2006). This general rule, however, is not without exceptions. In State v. Taylor , supra, 91 Conn.App. 788, 882 A.2d 682, for example, Judge Schaller recognized in his concurring opinion that a sentencing court could be divested of its jurisdiction to correct a sentence when the "claims before the trial court have been altered so that the sole issue before the court is one that the court lacks jurisdiction to hear." Id., 800, 882 A.2d 682 (Schaller , J. , concurring). In the present case, the legal landscape concerning juvenile sentencing laws has changed so significantly that the remaining claims, which would have required resentencing when the motion to correct was filed, no longer require resentencing. In view of the long-standing principle that challenges to the trial court's subject matter jurisdiction may be raised at any time by either party or the court; e.g., Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc. , 311 Conn. 123, 149, 84 A.3d 840 (2014) ; and the established rule that a sentencing court's jurisdiction to correct a sentence is limited to sentences that are invalid; State v. Parker , supra, 295 Conn. at 835, 992 A.2d 1103 ; we conclude that the trial court no longer possesses jurisdiction over the defendant's motion to correct. We further emphasize that the defendant is not entitled to resentencing under P.A. 15-84, § 2, codified as amended at General Statutes (Supp. 2016) § 54-91g, which requires the trial court to consider youth related mitigating factors before sentencing a juvenile convicted of a class A or B felony. The defendant does not expressly claim that this provision applies to him retroactively, and, in any event, the text of P.A. 15-84, § 2, does not support any such assertion. There are ten sections in P.A. 15-84, four of which specify that they are "[e]ffective October 1, 2015, and applicable to any person convicted prior to, on or after said date." (Emphasis omitted.) P.A. 15-84, § 6 through 9. In contrast, P.A. 15-84, § 2, provides it is "[e]ffective October 1, 2015," indicating that the legislature did not intend for this section to apply retroactively. Moreover, there is nothing in the text of General Statutes (Supp. 2016) § 54-91g or the legislative history of P.A. 15-84 to suggest that the legislature intended that all juveniles convicted of a class A or B felony who were sentenced without consideration of the age related mitigating factors identified in Miller would be resentenced. In sum, even if the defendant had alleged that his sentence was imposed in an illegal manner because the trial court failed to adhere to the requirements of P.A. 15-84, § 2, he would not be able to demonstrate that that provision applies to him. Finally, we are not persuaded by several arguments advanced by the defendant. First, the defendant contends that Montgomery "does not limit Connecticut to using parole eligibility as the sole remedy for Miller violations" and refers to the legislature's decision to require both "a Miller compliant sentencing hearing and an opportunity for parole" to suggest that resentencing is required. (Emphasis in original.) Although we agree that the text of P.A. 15-84 reflects the legislature's intent to require both of these elements, as we have explained, the text indicates that the requirement of a Miller compliant sentencing hearing does not apply retroactively. In the absence of evidence to the contrary, we reject this argument. Second, the defendant argues that " Montgomery does not . supersede the final and controlling precedent in Riley and Casiano , which provide a new sentencing hearing as the remedy for sentences that are illegal or were imposed in an illegal manner ." As we noted in this opinion, however, neither Riley nor Casiano requires the sentencing court to consider specific youth related mitigating factors before imposing a sentence of life with an opportunity for parole . Furthermore, the defendant's entitlement to parole consideration under P.A. 15-84 defeats any claim challenging the propriety of his original sentence insofar as that sentence precluded any possibility of an early release. In short, because the defendant cannot raise a viable claim that his sentence was illegal or was imposed in an illegal manner under Riley and Casiano , neither case requires resentencing. Third, the defendant posits that this court previously recognized that "parole legislation would not appropriately address Miller claims" when it decided Riley and Casiano and acknowledged that Graham and Miller claims are separate and distinct. The fact that this court drew a distinction between those claims, however, simply does not support the proposition that this court previously determined that an opportunity for parole is insufficient to remedy a trial court's failure to account for the mitigating factors of youth. Because the defendant's remaining claims in his motion to correct no longer fall within the purview of Miller , the motion fails to allege a claim that, if proven, would require resentencing. In the absence of a viable claim that the sentence is illegal or was imposed in an illegal manner, the sentencing court lacks jurisdiction to correct the sentence. The trial court's dismissal of the defendant's motion to correct an illegal sentence is affirmed. In this opinion the other justices concurred. Section 1 of No. 15-84 of the 2015 Public Acts, codified at General Statutes (Supp. 2016) § 54-125a, provides in relevant part: "(f) (1) Notwithstanding the provisions of subsections (a) to (e), inclusive, of this section, a person convicted of one or more crimes committed while such person was under eighteen years of age, who is incarcerated on or after October 1, 2015, and who received a definite sentence or total effective sentence of more than ten years for such crime or crimes prior to, on or after October 1, 2015, may be allowed to go at large on parole in the discretion of the panel of the Board of Pardons and Paroles for the institution in which such person is confined, provided (A) if such person is serving a sentence of fifty years or less, such person shall be eligible for parole after serving sixty per cent of the sentence or twelve years, whichever is greater, or (B) if such person is serving a sentence of more than fifty years, such person shall be eligible for parole after serving thirty years. Nothing in this subsection shall limit a person's eligibility for parole release under the provisions of subsections (a) to (e), inclusive, of this section if such person would be eligible for parole release at an earlier date under any of such provisions. "(2) The board shall apply the parole eligibility rules of this subsection only with respect to the sentence for a crime or crimes committed while a person was under eighteen years of age. . "(3) Whenever a person becomes eligible for parole release pursuant to this subsection, the board shall hold a hearing to determine such person's suitability for parole release. . "(5) After such hearing, the board shall articulate for the record its decision and the reasons for its decision. If the board determines that continued confinement is necessary, the board may reassess such person's suitability for a new parole hearing at a later date to be determined at the discretion of the board, but not earlier than two years after the date of its decision. "(6) The decision of the board under this subsection shall not be subject to appeal. ." Section 2 of No. 15-84 of the 2015 Public Acts, codified as amended at General Statutes (Supp. 2016) § 54-91g, provides in relevant part: "(a) If the case of a child . is transferred to the regular criminal docket of the Superior Court . and the child is convicted of a class A or B felony pursuant to such transfer, at the time of sentencing, the court shall: "(1) Consider, in addition to any other information relevant to sentencing, the defendant's age at the time of the offense, the hallmark features of adolescence, and any scientific and psychological evidence showing the differences between a child's brain development and an adult's brain development; and "(2) Consider, if the court proposes to sentence the child to a lengthy sentence under which it is likely that the child will die while incarcerated, how the scientific and psychological evidence described in subdivision (1) of this subsection counsels against such a sentence. "(b) Notwithstanding the provisions of section 54-91a of the general statutes, no presentence investigation or report may be waived with respect to a child convicted of a class A or B felony. . "(c) Whenever a child is sentenced pursuant to subsection (a) of this section, the court shall indicate the maximum period of incarceration that may apply to the child and whether the child may be eligible to apply for release on parole pursuant to subdivision (1) of subsection (f) of section 54-125a of the general statutes, as amended by this act. ." On appeal, this court agreed with the defendant's claim that a separate conviction under § 53-202k was improper because that statute is a sentence enhancement provision and not a distinct offense. State v. Delgado, supra, 247 Conn. at 633, 725 A.2d 306. The defendant conceded, however, that the sentencing court properly had imposed a five year consecutive sentence pursuant to § 53-202k. Id. The case was remanded "with direction to vacate the defendant's conviction under § 53-202k and to resentence the defendant to a total effective term of imprisonment of sixty-five years ." Id., 634, 725 A.2d 306. Practice Book § 43-22 provides: "The judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner." The eighth amendment to the United States constitution provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." On appeal, the defendant has not raised or briefed any separate arguments or claims under the state constitution. Because, for purposes of this appeal, the defendant does not contend that the state constitution affords him any greater rights than he possesses under the federal constitution, we limit our analysis to his federal constitutional claim. See, e.g., Barros v. Barros, 309 Conn. 499, 507 n.9, 72 A.3d 367 (2013). A Miller claim or Miller violation refers to the sentencing court's obligation to consider a juvenile's age and circumstances related to age at an individualized sentencing hearing as mitigating factors before imposing a sentence of life imprisonment without parole. See Miller v. Alabama, supra, 132 S.Ct. at 2469. A Graham claim or Graham violation refers to the sentencing court's obligation to provide a meaningful opportunity for parole to a juvenile who is sentenced to life imprisonment. See Graham v. Florida, supra, 560 U.S. at 82, 130 S.Ct. 2011. The defendant initially raised a Graham claim but acknowledges that that claim has been addressed by the enactment of P.A. 15-84, § 1. Because the defendant was not sentenced pursuant to a mandatory sentencing scheme, the trial court concluded that the holding in Miller did not apply to the defendant's case and dismissed the motion to correct for lack of jurisdiction. The state now concedes, and we agree, that the trial court incorrectly concluded that it lacked jurisdiction over the defendant's motion to correct at that time. The motion, at that point, raised a viable claim by alleging that a sentence of life imprisonment without parole had been imposed without consideration of youth related mitigating factors. As we discuss subsequently in this opinion, however, the defendant is now eligible for parole and can no longer claim that he is serving a sentence of life imprisonment without parole. We therefore conclude that the trial court no longer possesses jurisdiction over the defendant's motion to correct. See Fisher v. Haynes, United States District Court, Docket No. C15-5747 (BHS), 2016 WL 5719398 (W.D. Wn. September 30, 2016) (defendant sentenced to life imprisonment with parole was not entitled to relief under Miller ); People v. Cornejo, 3 Cal.App.5th 36, 67-68, 207 Cal.Rptr.3d 366 (2016) (after legislation afforded defendant opportunity for parole, sentence imposed by trial court was no longer sentence of life without parole or functional equivalent and " 'no Miller claim arises,' " and same rationale applied to both mandatory and discretionary sentences); State v. Tran, 138 Hawai'i 298, 307, 378 P.3d 1014 (2016) (United States Supreme Court's "statements in Montgomery make clear that Miller does not require individualized sentencing or consideration of the mitigating factors of youth in every case involving a juvenile offender, but only [when] a sentence of life imprisonment without parole is imposed on a juvenile offender"); State v. Cardeilhac, 293 Neb. 200, 218, 876 N.W.2d 876 (2016) (Miller did not apply when defendant's sentence afforded opportunity for parole); State v. Lasane, New Jersey Superior Court, Appellate Division, Docket No. 06-02-00365 (September 28, 2016) (Miller does not apply to juvenile offender who retains prospect of parole within lifetime); State v. Terrell, Ohio Court of Appeals, Docket No. CR-13-581323-A (June 23, 2016) (declining to extend Miller to cases in which parole is afforded), appeal denied, Ohio Supreme Court, Docket No. 2016-Ohio-7854 (November 23, 2016) ; see also State v. Williams-Bey, supra, 167 Conn.App. at 772, 144 A.3d 467. Our conclusion that the defendant does not need to be resentenced is also consistent with the Appellate Court's decision in State v. Williams-Bey, supra, 167 Conn.App. 744, 144 A.3d 467. In Williams-Bey, the Appellate Court engaged in a thorough analysis of whether an opportunity for parole satisfies the constitutional concerns discussed in Miller and concluded that it did. See id., 768, 780-81, 144 A.3d 467. Although this court does not follow the precise analytical path that the Appellate Court took in Williams-Bey, we fully agree that resentencing is not necessary. Although the text of P.A. 15-84 seems clear insofar as the retroactivity issue is concerned, to the extent that there is any ambiguity in the applicable statutory language, the pertinent legislative history clarifies that the legislature did not intend for this provision to apply retroactively. The limited discussion on this topic occurred before the Judiciary Committee. Attorney Robert Farr, a member of the working group of the Connecticut Sentencing Commission, which helped craft the proposed legislative language, discussed how the legislation would affect previously sentenced individuals. See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 2, 2015 Sess., pp. 949, 955-56. He first mentioned this court's decision in Riley, in which the defendant in that case had been sentenced to 100 years in prison and then resentenced, and noted that, under the proposed legislation, "instead of having to worry about resentencing what would have happened is in [thirty] years, [twenty-one] years from now there will be a parole hearing and then that parole hearing would decide whether [the defendant in Riley ] was going to be-get another parole hearing . So it gave some resolution to this which was consistent we believe with the federal-with the [United States] Supreme Court cases." Id., p. 956, remarks of Attorney Farr.

12489983

Michael SMITH v. COMMISSIONER OF CORRECTION

Smith v. Comm'r of Corr.

2017-06-13

No. 38546

89

89

163 A.3d 89

163

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

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

Fastcase

Michael SMITH v. COMMISSIONER OF CORRECTION

Michael SMITH v. COMMISSIONER OF CORRECTION No. 38546 Appellate Court of Connecticut. Argued May 18, 2017 Officially released June 13, 2017

27

178

Per Curiam. The judgment is affirmed.

12489982

US BANK NATIONAL ASSOCIATION, as Trustee v. Claude M. BROUILLARD et al.

US Bank Nat'l Ass'n v. Brouillard

2017-06-13

No. 38818

89

89

163 A.3d 89

163

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

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

Fastcase

US BANK NATIONAL ASSOCIATION, as Trustee v. Claude M. BROUILLARD et al.

US BANK NATIONAL ASSOCIATION, as Trustee v. Claude M. BROUILLARD et al. No. 38818 Appellate Court of Connecticut. Argued May 18, 2017 Officially released June 13, 2017

46

271

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

12489981

Anthony C. CARTER v. Gerald M. KLEIN

Carter v. Klein

2017-05-19

No. 38132

89

89

163 A.3d 89

163

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

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

Fastcase

Anthony C. CARTER v. Gerald M. KLEIN

Anthony C. CARTER v. Gerald M. KLEIN No. 38132 Appellate Court of Connecticut. Submitted on briefs May 19, 2017 Officially released June 13, 2017

30

184

Per Curiam. The judgment is affirmed.

12489980

John B. CROUSE v. Tamara S. COX

Crouse v. Cox

2017-05-23

AC 38462

88

88

163 A.3d 88

163

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

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

Fastcase

John B. CROUSE v. Tamara S. COX

John B. CROUSE v. Tamara S. COX AC 38462 Appellate Court of Connecticut. Submitted on briefs May 23, 2017 Officially released July 4, 2017 John B. Crouse, self-represented, the appellant (plaintiff) filed a brief. Sheldon, Beach and Harper, Js.

65

407

PER CURIAM. The judgment of dismissal is vacated. The case is remanded for further proceedings, without prejudice to the filing of a motion for summary judgment.

12489935

Christopher EVANS v. TIGER CLAW, INC., et al.

Evans v. Tiger Claw, Inc.

2017-05-23

AC 38445

1282

1290

163 A.3d 1282

163

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

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

Fastcase

Christopher EVANS v. TIGER CLAW, INC., et al.

Christopher EVANS v. TIGER CLAW, INC., et al. AC 38445 Appellate Court of Connecticut. Argued March 15, 2017 Officially released May 23, 2017 Mariusz Kurzyna, New Britain, with whom, on the brief, was Peter Goselin, Hartford, for the appellant (plaintiff). Taryn D. Martin, Plainville, with whom was Robert A. Ziegler, Plainville, for the appellee (named defendant). Alvord, Prescott and Bear, Js.

3695

23054

PER CURIAM. The plaintiff, Christopher Evans, appeals from the judgment, rendered after a trial to the court, denying his claim for hourly wages allegedly due from the defendant, Tiger Claw, Inc. (defendant). On appeal, the plaintiff claims that the trial court erred (1) "in failing to apply or misapplying fundamental tenets of wage and hour law"; (2) "in applying an incorrect burden of proof"; and (3) "in finding that [the] plaintiff has not proved that [the] defendant failed to pay any wages to which [the] plaintiff was otherwise entitled." We affirm the judgment of the trial court. The following facts were found by the court or are not disputed. The defendant was a start-up company when the plaintiff began working there in January, 2003. The defendant manufactured hidden deck fasteners for the construction industry. David Hartmann, David Martel, and Donald Martel were corporate officers and held various managerial positions within the defendant. The plaintiff was hired as a sales representative for a new line of deck fasteners and was compensated on a commission basis, with an agreement that his first $10,000 in commission earnings would be withheld and invested in shares of the company's stock. Because the defendant was just starting up and had little support staff, it was further agreed that if the plaintiff was called upon from time to time to perform administrative functions that were not sales related, the defendant would compensate the plaintiff on an hourly basis, based on time records submitted periodically by the plaintiff. The plaintiff worked primarily as a sales representative from January, 2003 until April, 2005, calling customers, visiting wholesalers and retailers, attending trade shows, creating and editing promotional materials, and keeping track internally and externally of the market. After the plaintiff had accumulated $10,027.26 in sales commissions, which was set aside in a stock fund, he was paid commissions for subsequent sales that he made and received Internal Revenue Service (IRS) Forms 1099 for that income. The plaintiff submitted a record of time spent on administrative work to the defendant in February, 2003 for work performed in January, 2003. The plaintiff was not paid for the administrative work he performed in January, 2003, and he never demanded payment for that administrative work during his employment. The plaintiff did not submit any other records of time allegedly spent on administrative work until he stopped working for the defendant. When it became clear that the plaintiff would be leaving in March, 2005, the plaintiff presented the defendant with more than two years of administrative time records for which he demanded compensation. The defendant disputed the plaintiff's entitlement to compensation for such administrative time. The plaintiff essentially stopped working for the defendant on March 16, 2005, and he resigned effective that date. On April 7, 2005, the defendant's counsel sent a letter to the plaintiff, officially terminating his employment. The defendant paid out all of his remaining earned commissions and reported on an IRS Form 1099 for the year 2005 that the plaintiff received $8861.49 for that year. On October 13, 2006, the plaintiff filed a complaint with the state Department of Labor (department) for unpaid wages totaling $191,966.91. After an investigation, Blair F. Bertaccini, a department wage enforcement agent, determined that certain costs had been deducted improperly from one of the plaintiff's commission checks and that the plaintiff was owed $3603.67 in unpaid wages. The plaintiff was unwilling to resolve his claim for that amount, and he withdrew his complaint at the department. On August 13, 2007, the plaintiff commenced the present action against the defendant and against Hartmann and the Martels in their individual capacities. The plaintiff's operative complaint alleged that the defendant, Hartmann, and the Martels (1) failed to pay him hourly and commission wages and/or the shares of stock to which he was entitled and (2) obtained the plaintiff's property, i.e., wages and/or stock, by false pretenses. The defendant, Hartmann, and the Martels filed special defenses alleging that the plaintiff's claims were barred by the statute of limitations articulated in General Statutes § 52-596 and by the doctrine of res judicata. Following a six day trial, the court, Hon. Robert I. Berdon , judge trial referee, issued its memorandum of decision on April 27, 2011. Although the court rendered judgment in favor of the plaintiff, it limited his recovery for unpaid hourly wages to $3603.67, which was the amount Bertaccini recommended to resolve the wage claim filed by the plaintiff with the department. The court held that the doctrine of res judicata precluded any further recovery by the plaintiff for unpaid hourly wages. The court added $10,027.26 to that award, however, representing the sales commissions set aside for the purchase of corporate stock, for a total recovery of $13,630.93, plus taxable costs. The plaintiff appealed the judgment of the trial court claiming that "the court improperly concluded that the doctrine of res judicata precluded the recovery of those wages because of a prior determination by a wage enforcement agent for the department of labor." Evans v. Tiger Claw, Inc. , 141 Conn.App. 110, 112, 61 A.3d 533, cert. denied, 310 Conn. 926, 78 A.3d 146, 856 (2013). The defendant, Hartmann, and the Martels filed a cross appeal from the judgment, "claiming that the court improperly (1) awarded the plaintiff $10,027.26 for unpaid commissions and (2) found [Hartmann and the Martels] liable for the amounts awarded to the plaintiff." Id. This court reversed the judgment "as to the according of res judicata effect to [Bertaccini's] determination of the plaintiff's wage claim" and remanded the case for a new trial on that issue. Id. at 124, 61 A.3d 533. This court further reversed the judgment with respect to the personal liability of Hartmann and the Martels and remanded the case with direction to render judgment in their favor but affirmed the award of $10,027.26 in favor of the plaintiff and against the defendant for unpaid wages. Id. On remand, the case was tried to the court, Pittman, J. , on the limited issue of whether the defendant failed to pay the plaintiff any other wages or commissions and, if so, what amount of compensation was due. Prior to trial, the plaintiff filed a motion in limine requesting that the court "limit any documentary or testamentary evidence that the defendant asserts shows the hours worked by or wages paid to the plaintiff and apply the burden-shifting framework set out in" Anderson v. Mt. Clemens Pottery Co. , 328 U.S. 680, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946), and adopted by our Supreme Court in Schoonmaker v. Lawrence Brunoli, Inc. , 265 Conn. 210, 828 A.2d 64 (2003). The court denied the motion without prejudice before trial "because there is currently an insufficient basis upon which to make such a decision." At trial, the plaintiff presented evidence that he was entitled to additional compensation at an hourly wage for substantial administrative work he purportedly performed for the defendant. In particular, the plaintiff produced as evidence several spreadsheets that he represented were contemporaneous records of his daily "administrative hours" for the years 2003, 2004, and 2005. The defendant rebutted that evidence primarily through the testimony of Hartmann, who explained why the plaintiff's figures in his spreadsheets were not credible or why certain tasks listed by the plaintiff in his spreadsheets constituted sales work, compensable through his sales commissions, not administrative work. Hartmann stated on several occasions that he did not know what many of the tasks identified by the plaintiff were. In addition, Hartmann stated that, although he conceptually understood what some of the listed tasks were, he did not know that the plaintiff actually performed those tasks or why he would perform them. Finally, Hartmann testified that there were some tasks he knew that the plaintiff was performing despite being instructed not to do so. On August 6, 2015, the court issued its memorandum of decision, in which it concluded that "the plaintiff . failed to prove his entitlement to any additional compensation by a preponderance of the evidence ." Although the court noted that "the plaintiff was always considered an independent contractor, not an employee" by the parties, it assumed arguendo that the Anderson burden-shifting scheme for unpaid wages claims by employees applied to the case. The court found that the plaintiff's spreadsheets of his "administrative hours" were "not a contemporaneous record of the plaintiff's administrative work" and that "the number of 'administrative hours' reflected on them is not believable (and, in some instances, barely humanly possible), especially when coupled with the plaintiff's primary [forty]-hour-per-week job as a sales representative, a job he performed well, according to David Hartmann. These time records cast doubt upon the entire presentation of the plaintiff about his performance of any administrative work at all for the defendant." The court further found that, "with rare exception, the plaintiff was not directed by the defendant to do any of the administrative functions for which he finally submitted a demand. Rather from a review of the spreadsheets and an analysis of the evidence as a whole, particularly the plaintiff's own testimony, the court finds that the plaintiff busied himself with projects that he invented for himself which had only incidental value to the company. "Although . Hartmann generously conceded that the plaintiff may have worked some compensable administrative hours on occasion, the court is not bound to accept such uncontradicted testimony.... Rather, despite the time records constructed by the plaintiff, the plaintiff's descriptions of the administrative time worked are so vague and sometimes contradictory that his account of his many hundreds of hours spent on administrative tasks simply does not ring true." (Citation omitted; emphasis in original; footnote omitted.) As a result, the court concluded that "the plaintiff has not proved that the defendant failed to pay any wages or commissions to which the plaintiff was otherwise entitled. The absence of the compensation of which the plaintiff complains in this lawsuit is not evidence that the defendant withheld payments it knew or suspected that the plaintiff was owed for work he had performed. Rather, the court finds that the plaintiff either did not perform the hourly work claimed in the spreadsheets or that substantially all of the work he performed was in general or specific support of his own sales work, for which he received compensation not through an hourly wage but through commissions which were properly paid and reported." Because "the plaintiff . failed to prove his entitlement to any additional compensation by a preponderance of the evidence," the court rendered a judgment in favor of the defendant. This appeal followed. At the outset, we observe that the plaintiff's issues on appeal rest on two faulty premises: the trial court (1) found that he was an independent contractor and, as a result, (2) failed to apply, or misapplied, the Anderson burden-shifting scheme. As we previously stated, although the trial court noted that "the plaintiff was always considered an independent contractor," it assumed arguendo that the Anderson burden-shifting scheme applied to the plaintiff's claim and rejected his claim because he failed to meet his burden of proof. Accordingly, we also assume for the purposes of our analysis that the plaintiff was an employee and that the Anderson burden-shifting scheme applies to his case. Because we conclude that the trial court properly applied the Anderson burden-shifting scheme and did not err in its conclusion that the plaintiff failed to prove his entitlement to additional compensation from the defendant, we reject the plaintiff's claims on appeal. We first set forth the standard of review and legal principles that guide our analysis. "[T]he scope of our appellate review depends [on] the proper characterization of the rulings made by the trial court. To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. When, however, 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.) Ravetto v. Triton Thalassic Technologies, Inc. , 285 Conn. 716, 735, 941 A.2d 309 (2008). Section 16 (b) of the Fair Labor Standards Act (act), 29 U.S.C. § 216 (b), and General Statutes § 31-72 create a civil cause of action for an employee to collect unpaid wages. In addition, § 11 (c) of the act, 29 U.S.C. § 211 (c), and General Statutes § 31-66 require employers to maintain records of all of their employees' hours and wages. In Anderson v. Mt. Clemens Pottery Co. , supra, 328 U.S. 680, 66 S.Ct. 1187, the United States Supreme Court addressed the appropriate burden of proof in an action brought pursuant to § 16 (b) when an "employee has proved that he has performed work and has not been paid in accordance with the [act]," but his employer has failed to maintain "proper and accurate records" of his wages and hours and, therefore, the amount of wages owed is uncertain. Id. at 686-688, 66 S.Ct. 1187. The court in Anderson concluded that it would be contrary to the remedial nature of the act and public policy to make the burden of proof an impossible hurdle for the employee, and, therefore, it enunciated a burden-shifting scheme, which our Supreme Court adopted in Schoonmaker v. Lawrence Brunoli, Inc. , supra, 265 Conn. 210, 828 A.2d 64. See Anderson v. Mt. Clemens Pottery Co. , supra, at 686-88, 66 S.Ct. 1187. Under the Anderson burden-shifting scheme, when an employer has maintained proper and accurate records of an employee's wages and hours, the employee satisfies his burden of production by requesting and producing those records. Anderson v. Mt. Clemens Pottery Co. , supra, 328 U.S. at 687, 66 S.Ct. 1187. "But where the employer's records are inaccurate or inadequate," the employee satisfies his burden of production "if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference." Id."The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to [negate] the reasonableness of the inference to be drawn from the employee's evidence. If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result [is] only approximate." Id., at 687-88, 66 S.Ct. 1187. Significantly, " Anderson merely imposes a shift in the burden of production, and not the burden of persuasion; the ultimate burden of persuading the trier of fact remains with the employee." (Footnote in original.) Schoonmaker v. Lawrence Brunoli, Inc. , supra, 265 Conn. at 241, 828 A.2d 64. The purpose of the Anderson burden-shifting scheme is simply to prevent an employer from complaining that "the damages lack the exactness and precision of measurement that would be possible had [it] kept records in accordance with the requirements of § 11 (c)." Anderson v. Mt. Clemens Pottery Co. , supra, 328 U.S. at 688, 66 S.Ct. 1187. In the present case, the plaintiff failed to persuade the court that he in fact performed work for the defendant for which he was improperly compensated. Although evidence was produced by the plaintiff that he performed substantial administrative work for the defendant for which he should have been compensated through an hourly wage, the court did not credit that evidence. "It is well established that [i]t is within the province of the trial court, when sitting as the fact finder, to weigh the evidence presented and determine the credibility and effect to be given the evidence. ." (Internal quotation marks omitted.) Ravetto v. Triton Thalassic Technologies, Inc. , supra, 285 Conn. at 728, 941 A.2d 309. We cannot conclude that the court's credibility determinations or its finding that the plaintiff did not perform work for which he was improperly compensated were clearly erroneous. The plaintiff, in addition to challenging the court's credibility findings, argues that the court's holding is in contravention of state and federal employment law. In particular, the plaintiff argues that the court improperly concluded that "[the] plaintiff's recorded work hours are not compensable because . [the] defendant had not 'directed' [the] plaintiff to perform that work." We agree that the standard under state and federal law is that "[i]f the employer knows or has reason to believe that the work is being performed, he must count the time as hours worked." 29 C.F.R. § 785.12 ; see also 29 C.F.R. § 785.11 and 785.13 ; General Statutes § 31-71a (2) and (3) ; Regs., Conn. State Agencies § 31-60-11 (a). The plaintiff misapprehends, however, the court's ruling. The court did not conclude that the plaintiff was not entitled to compensation because he was not directed to perform the tasks listed in his spreadsheets. Instead, the driving force of the court's holding was its finding that the plaintiff's spreadsheets and testimony were not credible. It was because of this credibility determination that the court found that the plaintiff did not perform much of the work claimed in his spreadsheets and that, to the extent he actually performed certain tasks, he was properly compensated for them through his sales commissions, as they were sales related tasks. It was because of these factual findings that the court was not persuaded by a preponderance of the evidence that the plaintiff in fact performed work for the defendant for which he was improperly compensated. As a result, we cannot conclude that the court's ruling was in contravention of state and federal employment law. The judgment is affirmed. Several additional parties were named as defendants in this action, but they have not participated in this appeal. We therefore refer to Tiger Claw, Inc., as the defendant in this opinion, and, where necessary, to the other defendants by name. Although the plaintiff claimed that he was hired for telephone sales only, and that all other sales functions were administrative in nature, the court rejected that characterization, concluding that "[t]he better evidence is that telephone sales calls were but one part of the job description, and that all parties understood this at the time." The plaintiff testified that, from time to time, he submitted other such time records to the defendant. Hartmann recalled the plaintiff submitting time records "a couple times" but could not say definitively whether the plaintiff submitted any additional time records. The court found that no such interim records were submitted. We note that Anderson was superseded by statute on other grounds. See 29 U.S.C. § 254 (a). For example, the plaintiff listed "SSP training" and "phone pad" as administrative tasks in his spreadsheet, and Hartmann testified that he did not know what either of those tasks were. For example, the plaintiff listed "R & D" as an administrative task in his spreadsheet, and Hartmann stated that, although he understood what research and development is, the defendant was not involved in research and development nor was he asked to participate in research and development for the company. For example, Hartmann testified that although the plaintiff occasionally was asked in his capacity as a sales representative to create or to edit sales promotional materials, the plaintiff would often continue to remake promotional materials without being asked to or after being asked to stop. The court further assumed arguendo that the defendant's record keeping was inadequate, which, as discussed subsequently in this opinion, is a relevant factor when applying the Anderson burden-shifting scheme. We observe that the plaintiff in his appellate brief states that "the parties agree that, while he was employed by [the] defendant, [the] plaintiff was treated as an independent contractor," although he argues that this label was a misclassification. At oral argument, the defendant agreed that the plaintiff should be treated as an employee for the purposes of the issues raised in this appeal. "We explored the well established distinction between the 'burden of production' and the 'burden of persuasion' in Potter v. Chicago Pneumatic Tool Co., 241 Conn. 199, 235 n.26, 694 A.2d 1319 (1997). In Potter, we noted that: 'The phrase burden of proof is used in two ways. First, to refer to the burden of persuading the [trier of fact] that a fact exists, and second, to refer to the burden of producing sufficient evidence to persuade the judge to allow the case or issue to go to the [trier of fact], viz., that a prima facie case exists. . The burden of persuasion creates a risk of an adverse decision on the merits by the [trier of fact], whereas the burden of going forward or producing evidence creates a risk that the judge will withdraw the case or an issue from the [fact finder].' " (Emphasis omitted.) Schoonmaker v. Lawrence Brunoli, Inc., supra, 265 Conn. 241 n.36, 828 A.2d 64. Although the plaintiff in his statement of the issues frames his third claim on appeal as challenging only the court's finding that he "has not proved that [the] defendant failed to pay any wages to which [the] plaintiff was otherwise entitled," in his brief, the plaintiff also challenges the court's finding that he submitted administrative time records only in February, 2003 and March, 2005. Even if we were to find in favor of the plaintiff on this claim, however, it would not alter our conclusion that the court did not err in its finding that the plaintiff failed to meet his burden of proof at trial. Accordingly, we need not address this claim on appeal. Lashgari v. Lashgari, 197 Conn. 189, 196, 496 A.2d 491 (1985) ("we need not address other issues raised on appeal if the trial court has correctly decided an issue that is sufficient to sustain the judgment" [emphasis omitted] ); accord Ottiano v. Shetucket Plumbing Supply Co., 61 Conn.App. 648, 652, 767 A.2d 128 (2001).

12489933

C. Andrew RILEY v. The TRAVELERS HOME AND MARINE INSURANCE COMPANY

Riley v. Travelers Home & Marine Ins. Co.

2017-05-23

37307

1246

1271

163 A.3d 1246

163

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

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

Fastcase

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

C. Andrew RILEY v. The TRAVELERS HOME AND MARINE INSURANCE COMPANY

C. Andrew RILEY v. The TRAVELERS HOME AND MARINE INSURANCE COMPANY 37307 Appellate Court of Connecticut. Argued January 19, 2017 Officially released May 23, 2017 Linda L. Morkan, with whom were Daniel F. Sullivan and, on the brief, Jonathan E. Small, for the appellant-cross appellee (defendant). Proloy K. Das, with whom were Kristen L. Zaehinger and Leonard M. Isaac, and, on the brief, Sarah Gruber and James J. Nugent, for the appellee-cross appellant (plaintiff). DiPentima, C.J., and Sheldon and Bishop, Js.

12305

77826

SHELDON, J. In this case arising from a fire at the home of the plaintiff, C. Andrew Riley, both parties appeal from the judgment of the trial court awarding damages and prejudgment interest to the plaintiff against his homeowners insurer, the defendant, Travelers Home and Marine Insurance Company, upon the jury's verdict for the plaintiff on claims of breach of contract and negligent infliction of emotional distress. The defendant claims initially that the evidence adduced at trial was insufficient to support the jury's verdict in favor of the plaintiff on his claim of negligent infliction of emotional distress, and thus that the trial court erred in denying its motions for judgment notwithstanding the verdict, to set aside the verdict, and for remittitur. The defendant also claims that the court erred in allowing the plaintiff's two expert witnesses to testify over its objection at trial because one of those witnesses was not qualified to render an expert opinion in this case and neither witness had based his expert opinions on a scientifically reliable methodology. In his cross appeal, the plaintiff claims that the trial court abused its discretion in awarding him prejudgment interest pursuant to General Statutes § 37-3a at the rate of 3 percent instead of 10 percent. We affirm the judgment of the trial court. The jury reasonably could have found the following facts. On February 26, 2009, a fire destroyed a significant portion of the plaintiff's home in Pomfret, in which he and his wife, Barbara Riley, had been living and raising their children for more than twenty-five years. On the morning of the fire, the plaintiff was working on a project in a room on the first floor of his home when he received a telephone call from ADT Security Services, his home security service provider, notifying him that it had received an alert that there was a fire in his home. The plaintiff, initially in disbelief, immediately proceeded to the second floor of his home to look for the cause of the alert. Upon ascending the stairs, he saw flames through the open door of a room at the top of the stairs that was used as an office and exercise room, in which he had been exercising earlier that morning. Seeing that the room was engulfed in flames, he initially attempted to close the door but could not get it to stay closed. He thus took an old bathrobe from the adjacent bedroom and draped it over the door to keep it closed. In so doing, the plaintiff sustained a minor burn on his arm. Finally, after retrieving his wife's jewelry from their bedroom, the plaintiff ran back downstairs, confirmed with ADT that there was a fire in his home, and went outside to wait for assistance. Upon the arrival of multiple fire companies, the fire was promptly extinguished. As a result of the fire, the room in which the fire had occurred was essentially destroyed, along with most of its contents, including all of the family's photograph albums, a Mother's Day card to Barbara Riley, a sonogram photo of one of their children, and an uncashed check in the amount of $30,000, which Barbara Riley had received as a work bonus. Although the fire was contained in that one room on the second floor, it caused extensive smoke damage throughout the plaintiff's home. The town of Pomfret fire marshal, Adam Scheuritzel, arrived at the scene of the fire shortly after it was extinguished. He conducted an investigation of the cause and origin of the fire, using a video camera attached to his helmet to record his investigation. He also took several still photographs of the scene. In addition to inspecting the scene of the fire, Scheuritzel spoke to and obtained written statements from the plaintiff and several firefighters who had responded to the scene. Scheuritzel observed a kerosene heater and a separate container of kerosene in the exercise room where the fire had occurred, but he concluded that the kerosene had played no role in causing the fire. Scheuritzel concluded instead that the cause of the fire had been accidental, having been started by an electrical problem inside the wall of the exercise room. The plaintiff immediately notified the defendant of the fire. The defendant, which had issued a homeowner's insurance policy containing standard provisions insuring the plaintiff's property for any loss due to fire, then initiated its own investigation of the cause and origin of the fire, and assigned one of its own employees, John E. Schoener, a trained and certified fire investigator, to conduct that investigation. Schoener concluded that "the fire originated in the vapors of an ignitable liquid (kerosene) that was poured throughout the floor area and on boxes of stored contents within the room of fire origin. All accidental causes were eliminated as a cause of this fire. The cause of this fire is classified as an incendiary fire." By letter dated May 26, 2009, the defendant denied the plaintiff's claim for insurance coverage, stating that it had "concluded that [the plaintiff] intentionally caused the fire which resulted in this claim." The defendant later sent another letter to the plaintiff, dated June 16, 2009, "to advise [him] of an additional basis for the denial of [his] claim." The letter stated, "During the investigation of this loss, [the plaintiff] concealed and/or misrepresented material facts and circumstances concerning the loss and made material false statements relating to this loss and to his insurance coverage." Although the defendant denied the plaintiff's claim, it accepted the claim of Barbara Riley for personal property of herself and other family members, and additional living expenses incurred while repairs were being made to the residence. On October 18, 2011, the plaintiff initiated this action against the defendant, claiming breach of contract and negligent infliction of emotional distress. In response, the defendant denied the plaintiff's claims and, by way of special defense, alleged, inter alia, that the plaintiff had intentionally caused the fire to his home and had "concealed or misrepresented material facts or circumstances, engaged in fraudulent conduct, and/or made materially false statements regarding the fire and insurance claim." The plaintiff denied the defendant's special defenses. The case was tried to a jury in June, 2014. At the conclusion of the plaintiff's case-in-chief, the defendant orally moved for a directed verdict on the plaintiff's claim of negligent infliction of emotional distress. The trial court reserved judgment on that motion and proceeded with the trial. On June 23, 2014, the jury returned a verdict in favor of the plaintiff. By way of special interrogatories, the jury rejected the defendant's special defenses and found that the defendant had failed to prove that the plaintiff had intentionally caused the fire to his home or that he had "intentionally concealed or misrepresented material facts or circumstances, or engaged in fraudulent conduct, or made material false statements relating to his insurance ." The jury found that the plaintiff had proved that the defendant breached his homeowner's insurance contract by denying his claim for coverage and refusing to pay for his losses from the February 26, 2009 fire, and that he had "sustained [damages] as a result of the [defendant's] negligent infliction of emotional distress ." The jury awarded the plaintiff $504,346.10 in damages for breach of contract and $1,000,000 in damages for negligent infliction of emotional distress. The defendant thereafter filed motions for judgment notwithstanding the verdict, to set aside the verdict, and for remittitur. The court denied those motions and these appeals followed. Additional facts will be set forth as necessary. I The defendant first claims that the evidence adduced at trial was insufficient to support the jury's verdict in favor of the plaintiff on his claim of negligent infliction of emotional distress. In support of that claim, the defendant argues (1) that the court erred in denying its motions for a directed verdict and for judgment notwithstanding the verdict on the ground that the court, in deciding both motions, was limited to the evidence adduced during the plaintiff's case-in-chief, which was insufficient to establish the plaintiff's claim; (2) that even if the trial court were not so limited, it should have set aside the verdict because the plaintiff failed to prove that he suffered severe emotional distress and that his emotional distress was proximately caused by conduct of the defendant in addition to its denial of his claim for coverage; and (3) that, in any event, the court should have granted its motion for remittitur because, "[g]iven the paucity of evidence of emotional distress, the damage award shocks the conscience." We disagree. On July 3, 2014, the defendant filed a motion for judgment notwithstanding the verdict, a motion to set aside the verdict, and a motion for remittitur. By way of memorandum of decision filed September 26, 2014, the trial court denied all of the defendant's postverdict motions. The defendant now challenges the denial of its postverdict motions on the ground that the evidence was insufficient to support the jury's verdict on the plaintiff's claim of the negligent infliction of emotional distress. Our Supreme Court has stated "that directed verdicts are disfavored because [l]itigants have a constitutional right to have factual issues resolved by the jury.... Accordingly, [o]ur review of a trial court's [decision] to direct a verdict or to render a judgment notwithstanding the verdict takes place within carefully defined parameters.... [I]n reviewing the trial court's decision to render judgment notwithstanding the verdict, we may affirm that decision only if we find that the jury could not reasonably and legally have reached [its] conclusion.... The question is not whether we would have arrived at the same verdict, but whether, when viewed in the light most favorable to sustaining the verdict, the evidence supports the jury's determination.... A trial court may only grant a motion for judgment notwithstanding the verdict if the jury reasonably and legally could not have reached any other conclusion . and must deny such a motion where it is apparent that there was some evidence upon which the jury might reasonably reach [its] conclusion . We review a trial court's decision on a motion for judgment notwithstanding the verdict for abuse of discretion." (Citations omitted; emphasis in original; internal quotation marks omitted.) Landmark Investment Group, LLC v. CALCO Construction & Development Co. , 318 Conn. 847, 862-63, 124 A.3d 847 (2015). Similarly, "[t]he standards governing our review of a sufficiency of evidence claim are well established and rigorous.... [I]t is not the function of this court to sit as the seventh juror when we review the sufficiency of the evidence . rather, we must determine, in the light most favorable to sustaining the verdict, whether the totality of the evidence, including reasonable inferences therefrom, supports the jury's verdict . In making this determination, [t]he evidence must be given the most favorable construction in support of the verdict of which it is reasonably capable.... In other words, [i]f the jury could reasonably have reached its conclusion, the verdict must stand, even if this court disagrees with it.... "We apply this familiar and deferential scope of review, however, in light of the equally familiar principle that the plaintiff must produce sufficient evidence to remove the jury's function of examining inferences and finding facts from the realm of speculation.... A motion to set aside the verdict should be granted if the jury reasonably and legally could not have reached the determination that they did in fact reach." (Citations omitted; internal quotation marks omitted.) Carrol v. Allstate Ins. Co. , 262 Conn. 433, 442, 815 A.2d 119 (2003). "[I]n order to prevail on a claim of negligent infliction of emotional distress, the plaintiff must prove that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm." (Internal quotation marks omitted.) Id., at 446, 815 A.2d 119. In other words, "[t]o prevail on a claim of negligent infliction of emotional distress, the plaintiff must prove: (1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiff's distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant's conduct was the cause of the plaintiff's distress." (Internal quotation marks omitted.) Grasso v. Connecticut Hospice, Inc. , 138 Conn.App. 759, 771, 54 A.3d 221 (2012). With these principles in mind, we address the defendant's sufficiency arguments in turn. A In challenging the sufficiency of the evidence to support the jury's verdict in favor of the plaintiff on his claim of negligent infliction of emotional distress, the defendant first argues that the trial court erred in rejecting that challenge without limiting itself to considering the evidence adduced in the plaintiff's case-in-chief. We disagree. The following additional procedural history is relevant to this claim. The plaintiff rested his case on June 10, 2014. Immediately thereafter, the defendant orally moved for a directed verdict on the plaintiff's claim for negligent infliction of emotional distress. The defendant argued in support of that motion that although the plaintiff's expert witness, Ronald R. Mullen, had testified as to the "standard of care" for conducting a fire investigation, no evidence was adduced as to any deficiency in its investigation of the fire, and thus the plaintiff had failed to establish a prima facie case of negligence in investigating his claim for insurance coverage, or, thus, negligent infliction of emotional distress. In response, the plaintiff pointed to the testimony of Scheuritzel and Mullen, who attested to their respective conclusions as to the accidental cause and origin of the fire in the plaintiff's home, as well as the defendant's attempts to influence and coerce his experts to change their reports and support its claim of arson. Without reference to specific portions of Mullen's testimony, the plaintiff argued that Mullen had, in fact, pointed to inadequacies in the defendant's investigation. Following that brief argument by counsel, the court concluded: "[A]lthough I've expressed some concerns about the state of the pleadings and the evidence, it does seem to me there's sufficient evidence on this question, if not direct evidence, certainly reasonable inferences where I could reserve on that question pursuant to the Practice Book and we'll proceed to the defendant's case." The trial thus continued on to verdict, which, as previously noted, was returned in favor of the plaintiff. In its motion for judgment notwithstanding the verdict, the defendant renewed its motion for a directed verdict. The defendant argued in that motion: "During his case-in-chief, [the] plaintiff failed to present any evidence (other than the letter denying his insurance claim) that would permit the jury to reasonably conclude that [the defendant] is liable to him for the negligent infliction of emotional distress. [The] plaintiff chose not to offer expert testimony regarding the integrity of [the defendant's] fire origin and cause investigation, or to call [the defendant's] employees who conducted the investigation to demonstrate their alleged unreasonable or egregious misconduct in the investigation of the fire." The defendant further argued: "[W]hile [the] plaintiff developed additional evidence regarding [the defendant's] conduct on cross-examination of [the defendant's] employees who testified on behalf of the defense, this evidence and testimony cannot be considered in evaluating whether [the] plaintiff met [his] burden in [his] case-in-chief and in reaching a determination on [the defendant's] motion." Although not precisely argued before the trial court, the defendant's references to the plaintiff's "case-in-chief" can be construed to have raised its present claim that the court was confined to the evidence adduced during the plaintiff's case-in-chief when considering its motions for a directed verdict and for judgment notwithstanding the verdict. The law on this issue, however, is well settled. "[W]hen a trial court denies a defendant's motion for a directed verdict at the close of the plaintiff's case, the defendant, by opting to introduce evidence in his or her own behalf, waives the right to appeal the trial court's ruling.... The rationale for this rule is that, by introducing evidence, the defendant undertakes a risk that the testimony of defense witnesses will fill an evidentiary gap in the [plaintiff's] case.... On appeal in such cases, the question becomes whether . there is evidence in the entire record to justify submitting the matter to a trier of fact.... Although we have questioned the continuing viability of the waiver rule in the criminal context . we have never questioned its applicability in the civil context." (Emphasis in original; internal quotation marks omitted.) Elliott v. Larson , 81 Conn.App. 468, 471-72, 840 A.2d 59 (2004). Our Supreme Court has explained the logic of this rule as follows: "The waiver rule supports fact-finding and the ultimate truth seeking function of a trial . [because it] eliminates the bizarre result that could occur in its absence, namely, that a [judgment] could be reversed for evidentiary insufficiency, despite evidence in the record sufficiently establishing [liability]." (Citations omitted.) State v. Perkins , 271 Conn. 218, 237-38, 856 A.2d 917 (2004). To reach a contrary conclusion, the Court explained, would result in "a perception of the . trial as a sporting event in which the rules of the game trump the search for truth." Id., at 245, 856 A.2d 917. Here, because the defendant, after unsuccessfully moving for a directed verdict after the plaintiff rested, went on to present evidence on its claims that the plaintiff intentionally set fire to his house, engaged in fraudulent conduct and intentionally misrepresented or concealed material facts throughout the investigation as to the cause and origin of the fire, it is precluded by the waiver rule from claiming that the trial court was limited in its review of the sufficiency of the evidence to the evidence presented in the plaintiff's case-in-chief. Although the evidence presented by the defendant, which consisted almost exclusively of testimony of various employees of the defendant-evidence described by the defendant as "vitally important to [its] success on its special defenses"-had the effect of underscoring the inadequacies of its investigation of the fire, that was a risk the defendant assumed when it chose to present defense evidence at trial. Our case law, as quoted previously, makes it clear that the defendant is now bound by its choice to roll the proverbial dice by presenting its own evidence at trial. It therefore cannot claim error as to the trial court's prior denial, based solely upon the evidence presented in the plaintiff's case-in-chief, of its midtrial motion for a directed verdict. B The defendant next claims that the evidence adduced in the entire trial was insufficient to support the jury's verdict that the emotional distress allegedly suffered by the plaintiff was both proximately caused by the defendant and severe enough that it might have resulted in illness or bodily harm. We disagree. In its motion to set aside the verdict and for a new trial, the defendant, inter alia, "expressly incorporate[d] th[e] arguments [set forth in the simultaneously filed motion for judgment notwithstanding the verdict]" and added that the plaintiff had also failed to present or elicit evidence of negligent infliction of emotional distress during the defendant's case. The defendant argued that, at most, the plaintiff had proved that the defendant had breached its contract with him, but that a denial of coverage was an insufficient basis for establishing a claim of negligent infliction of emotional distress. In denying the defendant's motion for judgment not withstanding the verdict, the court reasoned: "Viewing the totality of the evidence in a light most favorable to sustaining the verdict, the court rejects the defendant's claim that the plaintiff did not prove any of the elements required for negligent infliction of emotional distress. "There was sufficient evidence that the plaintiff's distress was reasonable in light of the defendant's conduct. The defendant conducted its investigation using its own employees to establish whether the fire that occurred at the plaintiff's residence was intentionally set. The defendant was required to conduct itself reasonably in conducting its investigation, since an accusation of arson insurance fraud would obviously have far reaching personal, criminal and financial consequences for an innocent policyholder. That an innocent man falsely accused would suffer emotional distress is self-evident. The impact is aptly described in George Eliot's classic [1861] novel, Silas Marner, a tale of a man falsely accused of stealing, where it is observed that: 'deep are the sorrows that spring from false ideas for which no man is culpable.' "The jury had evidence from which it could have concluded that, despite the town of Pomfret fire marshal's finding that the fire was accidental in origin, [the defendant's] principal fire investigator . Schoener, almost immediately suspected the plaintiff of having intentionally set the fire, and set out to prove his suspicion. This 'rush to judgment,' or working backward from a predetermined conclusion of arson rather than following the evidence to a logical conclusion, was a central theme of the plaintiff's case. The jury heard evidence, which, if believed, would have supported a determination that during the course of [the] investigation, Schoener 'fabricated' evidence to establish arson. Moreover, even without finding that evidence was intentionally fabricated, the jury could have reasonably inferred that the [the defendant's] investigation was plagued by 'confirmation bias'-the tendency to overly weigh evidence that agrees with one's preconceived notions and downgrade the importance of evidence that disagrees with one's preconceived notions. "The jury heard evidence that Schoener contacted the town of Pomfret fire marshal and forcefully urged him to change his conclusion of an accidental fire and classify the fire as intentionally set. The jury also heard evidence that Schoener approached the plaintiff's fire investigator . Mullen, and through an 'interrogation technique' involving falsehood and subterfuge, attempted to acquire information about the plaintiff's investigation of the fire. The jury also heard that during that conversation with Mullen, Schoener denigrated the state of the plaintiff's marriage, believing that to be a possible motive for the arson. The jury could reasonably have inferred from these extraordinary efforts to disparage and harm the plaintiff-efforts which appeared to be well outside the realm of a normal fire investigation-that (as [the] plaintiff's counsel argued) Schoener was 'out to get' the plaintiff and that a denial of coverage based on an accusation of arson-whether or not it was actually true-was the inevitable outcome of such a biased and flawed investigation. "Finally, although he denied it, based on the evidence presented, the jury could have reasonably inferred that Schoener was motivated to find arson in order to advance his employment with the defendant. "For these reasons, the court finds that there was sufficient evidence to support a finding that the defendant's conduct created an unreasonable risk of causing the plaintiff's emotional distress and that the plaintiff's distress was foreseeable. "In addition, there was sufficient evidence that the plaintiff's distress was severe enough for the jury reasonably to conclude that it might result in illness or bodily harm. The jury heard testimony that when the plaintiff learned that coverage had been denied based on [the defendant's] conclusion that the fire had been intentionally set, he was 'shocked' and tremendously upset. The plaintiff's wife testified that the plaintiff's physical appearance reflected how much he had been staggered and taken aback: 'I remember thinking that the color of his face looked different, his skin color looked different.' Witnesses recounted the plaintiff's subsequent emotional state as he 'carried the burden' of a false accusation of arson, variously describing emotions of shame, embarrassment, unhappiness and depression. Witnesses also described behavioral changes in the plaintiff such as irritability and moodiness, and withdrawal from family and friends. From all [of] this testimony, the jury could have reasonably concluded that the long-term effect of this emotional turmoil might be physical illness or bodily harm. "Finally, there was sufficient evidence from which the jury could find causation. The plaintiff's wife and daughter testified to a marked change in the plaintiff's moods, demeanor and behavior in the wake of the accusation of arson. The plaintiff himself testified to changes in the wake of the denial of coverage: 'I just plain pulled into a shell and, you know, I was-I spent a long time waiting for the state police to come and take me away.' " On the basis of the foregoing findings, the court concluded that "there was sufficient evidence for the jury reasonably to have concluded as it did." The court thus denied the defendant's motion for judgment notwithstanding the verdict. The court then turned to the defendant's motion to set aside the verdict. The court reasoned: "The defendant argues that the verdict for the plaintiff on the claim of negligent infliction of emotional distress is against the weight of the evidence because that evidence 'at most, shows that [the defendant] breached the contract of insurance.' . The court disagrees. As has been discussed in the context of the motion for judgment notwithstanding the verdict, viewing all of the evidence in the light most favorable to sustaining the verdict, a jury could reasonably find that [the defendant's] conduct in investigating the plaintiff's claim was egregious and beyond the bounds of socially tolerable behavior." (Citation omitted.) The court compared the facts of this case to those discussed by our Supreme Court in the earlier case of Carrol v. Allstate Ins. Co. , supra, 262 Conn. at 444, 815 A.2d 119. The court explained: "In Carrol . under similar facts, our Supreme Court has upheld a finding of negligent infliction of emotional distress which arose when a homeowner's insurance company 'abused its right to investigate the origin of the fire at the plaintiff's house by conducting an investigation that was hasty, incomplete and ill-reasoned, thereby causing emotional distress to the plaintiff.' Id., at 450, 815 A.2d 119. The emotional distress here sprang from unjustified accusations of dishonest, immoral and criminal activity and not merely from a breach of an obligation to pay . insurance proceeds. The defendant attempts to distinguish the Carrol decision because the jury in that case could reasonably have found that the fire investigation was 'tainted by racial animus'-and there is no such evidence in the present case. The court finds the distinction unavailing and the Carrol decision highly instructive as to the present motion. "Although racial animus 'might have played a role' [ id., [at] 445 [815 A.2d 119] ] in the finding of arson [in Carrol ], the court also suggested that the jury could have based its verdict on other factors that 'tainted' the investigation, such as the inference that the investigator 'was motivated to find arson in order to ensure his continued employment by the defendant.' [ Carrol v. Allstate Ins. Co. , supra, 262 Conn.] [at] 445 [815 A.2d 119].... In the present case, testimony was elicited regarding the defendant's employee and principal fire investigator . Schoener, and the possible influence of his findings in this case upon his continued employment, advancement, and training. "Also, in a footnote, the Carrol court noted that the plaintiff's 'theme' [ id., [at] 440 n.9 [815 A.2d 119] ] throughout the trial was that the defendant impulsively concluded that the fire was caused by arson and never backed off this conclusion despite substantial evidence to the contrary. In the final argument in Carrol , [the] plaintiff's counsel suggested that the investigator 'concluded that this man tried to burn his house down. And, then he spent the rest of the time trying to make sure it could stick.' [ Id., [at] 449 n.11 [815 A.2d 119].] Similar arguments were made in the present case and the jury was asked to draw similar inferences from the conduct and statements of the defendant's principal investigator . Schoener. In the view of this court, the similarities between Carrol and the present case are far more enlightening than the differences. "Moreover, nowhere in Carrol is there a suggestion that a false accusation of arson can be considered 'egregious and beyond the bounds of socially tolerable behavior' only when it is motivated by racial prejudice. Regardless of the underlying motivation, any reasonable person would believe that falsely accusing an individual of the heinous crime of arson is abhorrent and reprehensible conduct." (Emphasis in original.) The court thus found that "[t]here was sufficient evidence upon which the jury might reasonably have based its verdict in favor of the plaintiff" and, accordingly, denied the defendant's motion to set aside the verdict. The defendant claims that the evidence adduced at trial was insufficient to support the jury's verdict that the defendant's conduct proximately caused the plaintiff to suffer emotional distress and that said emotional distress was sufficiently severe to establish negligent infliction of emotional distress. The plaintiff concedes, as he must, that the defendant's denial of his claim for coverage, alone, would not have been legally sufficient to establish his claim of negligent infliction of emotional distress. See Montinieri v. Southern New England Telephone Co. , 175 Conn. 337, 341, 398 A.2d 1180 (1978) ("mere breach of the contract would not afford a basis for a recovery in tort" [internal quotation marks omitted] ). It is clear from the trial record, however, that the plaintiff's claim for emotional distress was not based only upon the denial of his claim for coverage. Rather, the plaintiff's claim was also based upon the defendant's contemporaneous accusation that he had intentionally caused the fire in his own home, and thus committed the crime of arson. The plaintiff testified, as more fully recounted herein, that he became obsessed with "clearing his name" and "withdrew" from his family, friends and community due to the shame that he experienced as a result of the defendant's accusation. He explained to the jury that he would lie awake at night wondering if the police were going to arrive and arrest him. The plaintiff further testified that the accusation of arson caused him to withdraw from a certain business venture so as to not impugn the business by its association with a person accused of committing an act so dishonest and criminal in nature as arson. The plaintiff's closing argument focused on the defendant's act of "label[ing] him a filthy word"-an arsonist-as the conduct that caused him to suffer severe emotional distress. We thus agree with the trial court's conclusion that "[t]he [plaintiff's] emotional distress sprang from unjustified accusations of dishonest, immoral and criminal activity and not merely from a breach of an obligation to pay . insurance proceeds." The defendant's claim that the evidence presented at trial was insufficient to prove that its conduct proximately caused the plaintiff emotional distress is therefore unavailing. We also agree with the trial court's determination that there was sufficient evidence that the plaintiff's emotional distress was "severe enough that it might result in illness or bodily harm ." (Internal quotation marks omitted.) Grasso v. Connecticut Hospice, Inc. , supra, 138 Conn.App. at 771, 54 A.3d 221. We are again guided by our Supreme Court's analysis in Carrol , where the plaintiff had suffered emotional distress similar to that suffered by the plaintiff here. In addressing the requirement that the emotional distress suffered by the plaintiff was severe enough that it might have resulted in illness or bodily harm, the Carrol court explained: "This court . in Montinieri v. Southern New England Telephone Co. , [supra, 175 Conn. [at] 344 [398 A.2d 1180] ], concluded that there is no logical reason for making a distinction, for purposes of determining liability, between those cases where the emotional distress results in bodily injury and those cases where there is emotional distress only.... The only requirement is that the distress might result in illness or bodily harm. The plaintiff testified that he could not sleep, had frequent nightmares, had a loss of appetite, and experienced depression and a sense of isolation from his community because of the investigation." (Citation omitted; internal quotation marks omitted.) Carrol v. Allstate Ins. Co. , supra, 262 Conn. at 448, 815 A.2d 119. On that basis, the court concluded that the emotional distress suffered by the plaintiff was severe enough that it might have resulted in illness or bodily harm. Id. Here, the emotional distress suffered by the plaintiff was akin to that suffered by the plaintiff in Carrol. Evidence was presented at trial regarding the impact that the defendant's accusation of arson had on him personally, on his relationships with his family and friends, and on his career. The testimony presented at trial revealed the emotional toll borne by the plaintiff upon being accused of intentionally setting his family's home on fire, and the frustration, humiliation and fear he experienced "every waking moment" for almost five years after being accused of a crime that he described as "despicable beyond belief." The emotions experienced by the plaintiff were consistent with those one might feel when falsely accused of intentional and criminal conduct. It cannot reasonably be argued that such distress was not so severe that it might have resulted in illness or bodily harm. C The defendant finally challenges the sufficiency of the evidence to support the amount of damages that the jury awarded to the plaintiff on his claim of negligent infliction of emotional distress. To reiterate, the defendant claims that the court improperly denied its motion for remittitur of the jury's $1,000,000 award on the ground that "[g]iven the paucity of evidence of emotional distress, the damage award shocks the conscience." We disagree. "Because an award of damages is a matter peculiarly within the province of the trier of facts, we have held consistently that a court should exercise its authority to order a remittitur rarely-only in the most exceptional of circumstances.... In determining whether to order remittitur, the trial court is required to review the evidence in the light most favorable to sustaining the verdict.... Upon completing that review, the court should not interfere with the jury's determination except when the verdict is plainly excessive or exorbitant.... The ultimate test which must be applied to the verdict by the trial court is whether the jury's award falls somewhere within the necessarily uncertain limits of just damages or whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury [was] influenced by partiality, prejudice, mistake or corruption.... The court's broad power to order a remittitur should be exercised only when it is manifest that the jury [has] included items of damage which are contrary to law, not supported by proof, or contrary to the court's explicit and unchallenged instructions.... "Furthermore, [t]he decision whether to reduce a jury verdict because it is excessive as a matter of law . rests solely within the discretion of the trial court.... [Consequently], the proper standard of review of a trial court's decision to grant or deny a motion to set aside a verdict as excessive as a matter of law is that of abuse of discretion.... Accordingly, the ruling of the trial court on the motion to set aside the verdict as excessive is entitled to great weight and every reasonable presumption should be given in favor of its correctness." (Citations omitted; internal quotation marks omitted.) Patino v. Birken Mfg. Co. , 304 Conn. 679, 705-706, 41 A.3d 1013 (2012). In its motion for remittitur, the defendant argued, inter alia, that the amount of damages awarded by the jury on the plaintiff's claim for negligent infliction of emotional distress was "excessive as a matter of law" and was "grossly disproportionate to the harm suffered" by the plaintiff, which was "general and subjective." The trial court disagreed, reasoning, inter alia, as follows: "There was ample evidence before the jury that the plaintiff exhibited personality and behavior changes caused by emotional upset or anguish in the wake of [the] defendant's arson investigation. The plaintiff testified that over the four-plus years between the denial of coverage and the trial, he was beset by tumultuous emotions. 'There have been plenty of nights where, you know, you lie in bed and wonder, are the state police going to come to my door and take me away in hand-cuffs?' He withdrew from his family, friends and youngest son. As the plaintiff himself testified, he 'pulled into a shell.' There was testimony that the plaintiff was at various times 'irritable' and 'brooding,' or 'downtrodden' and 'depressed.' The plaintiff (and others) testified that he 'put his life on hold' and became 'obsessed with clearing his name.' He felt compelled to forgo business opportunities and 'avoided' friends and acquaintances on account of the 'stigma' of having been accused of intentionally setting fire to his home for money. The testimony established that these were emotions, attitudes and behaviors not seen before in the plaintiff, who was typically good-natured, gregarious, confident and cheerful." The court noted that although the award of damages was "remarkably generous," it could not find that it "fell outside the necessarily uncertain limits of fair and reasonable compensation." The court further found: "There is nothing in the record to suggest that the jury acted under the sway of passion or prejudice, or included items of damages that were contrary to the court's instructions or unsupported by proof. By all appearances, the members of the jury solemnly and diligently fulfilled their duty to weigh the evidence and render an award of damages that, based on their collective judgment, represented fair, just and reasonable compensation." In denying the defendant's motion for remittitur, the court again referenced Carrol , which also involved emotional distress arising from a false allegation of arson. The court explained: "Determining the range of reasonable compensation for a given injury is never easy and cannot be reduced to a precise arithmetical calculation. However, as the parties have noted, this jury award of substantial emotional distress damages in connection with a denial of coverage for a fire loss is not entirely precedent setting. In Carrol v. Allstate Ins. Co. , [supra] 262 Conn. [at] 437 [815 A.2d 119]... previously discussed, the jury awarded the plaintiff $500,000 as damages for emotional distress. On appeal, it was held that the court did not abuse its discretion in refusing to order a remittitur. The testimony in Carrol as to the impact upon the plaintiff of the false accusation of arson was not markedly dissimilar from the description of the plaintiff offered in this case. And the court takes judicial notice of the fact that $500,000 awarded in 2001 would, when adjusted for inflation using commonly accepted inflation calculators, be the equivalent of an approximately $675,000 award in 2014." In light of the testimony regarding the emotional distress suffered by the plaintiff resulting from the unfounded allegations that he had set his own family's house on fire and engaged in fraudulent conduct to hide his allegedly intentional criminal conduct, distress that likely and logically would be experienced by anyone placed in that position, it cannot reasonably be argued that the jury's verdict was "plainly excessive or exorbitant." (Internal quotation marks omitted.) Patino v. Birken Mfg. Co. , supra, 304 Conn. at 706, 41 A.3d 1013. The testimony of the plaintiff himself and those close to him reveals that the defendant's allegations weighed heavily on him every day from the date that he received the first letter of denial from the defendant in 2009 to the date the jury returned its verdict. Although it is difficult to quantify emotional distress precisely, we agree with the trial court that the jury's award was well within the realm of fair and reasonable compensation. II The defendant also claims that the court erred in denying its motion to preclude the plaintiff's disclosed experts, Scheuritzel and Mullen, from testifying on his behalf as to the cause and origin of the fire in the plaintiff's home. Specifically, the defendant claims that the proffered expert testimony should have been precluded pursuant to State v. Porter , 241 Conn. 57, 68-69, 698 A.2d 739 (1997), cert. denied, 523 U.S. 1058, 118 S.Ct. 1384, 140 L.Ed.2d 645 (1998), because Scheuritzel was not qualified to render an expert opinion and neither he nor Mullen "professed to follow a scientific methodology which satisfied the Porter standard." The defendant also argues that the court erred in failing to hold an evidentiary hearing on its motion to preclude. We disagree. The following procedural history is relevant to this claim. On April 28, 2014, the defendant moved in limine to preclude the expert testimony of Scheuritzel and Mullen. The defendant argued therein: "Scheuritzel's purported opinion testimony should first be precluded because he is simply not qualified to testify as an expert witness on the origin and cause of the fire at issue in this case. Moreover, both . Scheuritzel's and . Mullen's opinions should be precluded because the methodologies underlying their scientific theories are not valid and therefore unreliable." In so arguing, the defendant noted that both of the plaintiff's expert witnesses had correctly "recognized [National Fire Protection Association standard 921 (standard 921) ] as authoritative on the subject of the investigation of fires.... Investigations that comply with [standard] 921 are grounded in the scientific method, which is both desirable and necessary for accurate fire investigations." Citations omitted.) Scheuritzel and Mullen testified that they were trained in the guidelines set forth in standard 921 and generally adhered to those guidelines in conducting their respective investigations of the fire in the plaintiff's home. The defendant claimed, however, that neither witness, in fact, adhered to the methodology prescribed by standard 921. The defendant claimed that Scheuritzel, instead, based his investigation on his "vaguely generalized 'experience and training,' " and Mullen failed to thoroughly investigate any theories as to the cause of the fire beyond an electrical fault and that he failed to consult an electrical consultant. On those bases, the defendant claimed that their testimony was unreliable and must be precluded. On May 9, 2014, the court denied the defendant's motion to preclude. In so doing, the court recounted Scheuritzel's experience and qualifications and rejected the defendant's contention that he was not qualified to render an expert opinion. The court also rejected the defendant's claim that the testimony of the plaintiff's experts was not scientifically reliable. The court reasoned: "The methodology for the fire investigation conducted by Scheuritzel and Mullen appears to have been based in large part on their training and experience as fire marshals within the state of Connecticut, which would suggest that those techniques have gained some general acceptance. Nonetheless, the defendant argues that it must be excluded because Scheuritzel and Mullen failed to adhere to the methodology set forth in [standard] 921. There is no controlling appellate authority within this state as to whether [standard] 921 has so conclusively defined the field of fire investigation as to make any expert opinion based on a methodology other than [standard] 921 inherently unreliable or unscientific. Having reviewed excerpts from the depositions of Scheuritzel and Mullen, the court does not find their testimony to be based on any of the scientific insufficiencies-such as 'novel techniques' or 'conjecture or speculation'-that were identified in State v. Porter [supra, 241 Conn. 57, 698 A.2d 739 ] as being the hallmarks of expert testimony that does not meet the threshold of admissibility.... Excerpts from the depositions demonstrate that Scheuritzel and Mullen will no doubt be subjected to vigorous cross-examination as to how they came to reach their opinions. Their various departures from the [standard] 921 methodology for fire investigation will certainly be 'fodder for cross-examination' and will go to the weight, not the admissibility, of the expert testimony." (Citation omitted.) Scheuritzel and Mullen were thus permitted to present expert testimony at trial regarding the origin and cause of the fire at the plaintiff's home. Here, Scheuritzel and Mullen acknowledged standard 921 as authoritative in the investigation of fires, and both testified that they had been trained in and adhered to the methodologies set forth therein. Both witnesses had extensive experience investigating fires and concluded that the fire had been accidental in nature and caused by an electric fault inside the wall of the exercise room on the second floor of the plaintiff's home. Upon arriving at the scene of the fire at the plaintiff's home, Scheuritzel, acting in his official capacity as chief fire marshal for the town of Pomfret, conducted a cause and origin investigation of the fire. Throughout his investigation and in reaching his conclusions as to the cause and origin of the fire, Scheuritzel employed and relied upon his twenty-three years of training and experience. The camera on his helmet recorded his actions, and he took several still photographs of the scene. Scheuritzel spoke to and obtained written statements from the plaintiff and several firefighters who had responded at the scene, who provided various observations about the way the fire was burning, the color of the smoke, and the amount of time it took them to suppress the fire. Scheuritzel explained that he concluded that the fire originated inside the wall of the exercise room based upon his observation of V patterns and charring. Scheuritzel also testified that he observed beads of melted copper caused by an electric arc, which in turn was likely caused by a short circuit caused by rodent damage. He testified that he considered and eliminated other possible causes of the fire, and concluded that the fault of the electrical wiring in the wall was the cause. He observed the kerosene heater in the room and was aware that there had been a separate container of kerosene in the room during the fire, which had been spilled by the firefighters and moved to the bathtub. He eliminated the kerosene as a possible cause of the fire, however, because only the area near the heater smelled of kerosene and he noted no other evidence of accelerant during his investigation. Mullen also employed and relied upon his training and experience, which dates back to 1981, throughout his investigation of the fire in this case. He went to the plaintiff's home to observe and investigate the fire scene himself. Although many items had been removed from the scene by the time of his arrival, he was able to inspect the floor and walls of the room where the fire occurred for evidence of incendiary fluids and burn patterns. He viewed the video recording of the scene from the day of the fire that was taken by the camera on Scheuritzel's helmet. He also read Scheuritzel's report, including the statements of the firefighters with whom Scheuritzel had spoken. Finally, he viewed many photographs that had been taken on the day of the fire. On the basis of his investigation, Mullen agreed with Scheuritzel that the fire at the plaintiff's home was accidental, having been caused by an electrical fault inside the wall of the exercise room. Mullen rejected the defendant's theory that the plaintiff had intentionally started the fire by dousing the room with kerosene because there simply was not enough damage to the room to support that theory. He further explained that he had observed no burn patterns on the floor that were consistent with the presence of an ignitable fluid. In its motion to set aside the verdict, the defendant reiterated its argument that the testimony of Scheuritzel and Mullen should have been precluded because it was not scientifically reliable. The court disagreed, explaining: "[B]oth witnesses were subjected to vigorous cross-examination about their investigative methods, including the fact that, having recognized [standard] 921 as authoritative on the subject, both experts' investigations were arguably not conducted in strict accordance with [standard] 921. Both experts were questioned about their failure to investigate the presence of kerosene in the room and their failure to examine or test the physical evidence before reaching their conclusions. Under a Porter standard, those alleged deviations from [standard] 921 methodology went to the weight, and not the admissibility, of the expert testimony." This appeal followed. "We review a trial court's decision [regarding the admission of] expert testimony for an abuse of discretion.... We afford our trial courts wide discretion in determining whether to admit expert testimony and, unless the trial court's decision is unreasonable, made on untenable grounds . or involves a clear misconception of the law, we will not disturb its decision.... Although we afford trial courts significant discretion, [w]here it clearly appears that an expert witness is qualified to give an opinion, the exclusion of his testimony may be found to be [an abuse of discretion].... To the extent the trial court makes factual findings to support its decision, we will accept those findings unless they are clearly improper.... If we determine that a court acted improperly with respect to the admissibility of expert testimony, we will reverse the trial court's judgment and grant a new trial only if the impropriety was harmful to the appealing party.... "We also note our standards for admitting expert testimony. Expert testimony should be admitted when: (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues.... [T]o render an expert opinion the witness must be qualified to do so and there must be a factual basis for the opinion." (Citations omitted; internal quotation marks omitted.) Weaver v. McKnight , 313 Conn. 393, 405-406, 97 A.3d 920 (2014). Here, the trial court found that Scheuritzel was qualified to render expert testimony regarding the cause and origin of the fire at the plaintiff's home. Specifically, the court found that "[Scheuritzel] has been engaged in the firefighting and fire protection service in various localities in Connecticut in various capacities since 1987. He was awarded a fire marshal certificate by the state of Connecticut in 2003. As part of his training from [the] state of Connecticut for the fire marshal certification, he received training in investigations of fires and explosions.... Thereafter, from 2003 to 2011, he undertook thirty hours of . annual training and education for fire marshals. He has participated in (either as the principal investigator or as an assisting investigator) approximately thirty fire investigations. At the time of the fire which is the subject of this lawsuit, he was the chief fire marshal for the town of Pomfret. He investigated this fire, spending two hours at [the] scene and making a determination as to where the fire originated." On those bases, the court found that Scheuritzel had a special skill or knowledge that is applicable to this case, was not common to the average person, and would assist the jury in reaching its verdict. The court's findings are supported by the record. We thus conclude that the court did not abuse its discretion in finding that Scheuritzel was qualified to provide expert testimony in this case. "[B]eyond [the] . general requirements regarding the admissibility of expert testimony, [t]here is a further hurdle to the admissibility of expert testimony when that testimony is based on . scientific [evidence]. In those situations, the scientific evidence that forms the basis for the expert's opinion must undergo a [threshold] validity assessment [by the court] to ensure reliability. State v. Porter , [supra] 241 Conn. [at] 68-69 [698 A.2d 739].... In Porter , this court followed the United States Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and held that scientific evidence should be subjected to a flexible test, with differing factors that are applied on a case-by-case basis, to determine the reliability of the scientific evidence.... Porter explicitly stated that the flexible Daubert approach was a better approach than the test of general acceptance in the scientific community, which was established in Frye v. United States , 293 F. 1013 (D.C. Cir. 1923).... Following State v. Porter , supra, [at] 81-84 [698 A.2d 739], scientific evidence, and expert testimony based thereon, usually is to be evaluated under a threshold admissibility standard assessing the reliability of the methodology underlying the evidence and whether the evidence at issue is, in fact, derived from and based upon that methodology . "The mere fact that scientific evidence is sought to be admitted into evidence, however, does not require necessarily that a Porter inquiry be conducted as to the threshold admissibility of the evidence. As we have recognized, some scientific principles have become so well established that [a threshold admissibility] analysis is not necessary for admission of evidence thereunder.... Evidence derived from such principles would clearly withstand [such an] analysis, and thus may be admitted simply on a showing of relevance.... "Moreover, certain types of evidence, although ostensibly rooted in scientific principles and presented by expert witnesses with scientific training, are not scientific for . purposes of our admissibility standard for scientific evidence, either before or after Porter [was decided].... Thus, even evidence with its roots in scientific principles, which is within the comprehension of the average juror and which allows the jury to make its own conclusions based on its independent powers of observation and physical comparison, and without heavy reliance upon the testimony of an expert witness, need not be considered scientific in nature for . purposes of evidentiary admissibility.... [E]vidence . which merely places a jury . in a position to weigh the probative value of the testimony without abandoning common sense and sacrificing independent judgment to the expert's assertions based on his special skill or knowledge . is not the type of scientific evidence within the contemplation of Porter, and similarly was not within the ambit of our standard for assessing scientific evidence prior to Porter. " (Citations omitted; internal quotation marks omitted.) State v. West , 274 Conn. 605, 630-31, 877 A.2d 787, cert. denied, 546 U.S. 1049, 126 S.Ct. 775, 163 L.Ed.2d 601 (2005). "[Q]uestions about the methodological validity of proffered scientific testimony will generally go to the weight of such evidence, not to its admissibility. Courts should exclude scientific evidence, however, when such concerns render the technique, and the resulting evidence, incapable of assisting the fact finder in a sufficiently meaningful way.... Moreover, in light of the traditional policy regarding the admission of relevant evidence, [a] judge frequently should find an expert's methodology helpful [and thus admissible] even when the judge thinks that the expert's technique has flaws sufficient to render the [expert's] conclusions inaccurate. He or she will often still believe that hearing the expert's testimony and assessing its flaws was an important part of assessing what conclusion was correct and may certainly still believe that a jury attempting to reach an accurate result should consider the evidence.... A trial judge should therefore deem scientific evidence inadmissible only when the methodology underlying such evidence is sufficiently invalid to render the evidence incapable of helping the fact finder determine a fact in dispute." (Citation omitted; emphasis in original; footnote omitted; internal quotation marks omitted.) State v. Porter , supra, 241 Conn. at 88-89, 698 A.2d 739. "Once the validity of a scientific principle has been satisfactorily established, any remaining questions regarding the manner in which that technique was applied in a particular case is generally an issue of fact that goes to weight, and not admissibility." (Emphasis in original.) Id., at 88 n.31, 698 A.2d 739. Here, the defendant argues, the plaintiff's "two experts agreed [as to] what constituted the standard methodology for fire investigation ( [standard] 921), but disregarded that methodology and sought instead to testify as to their 'general experiences.' " "In large part, the focus of [the defendant's] objections to [the] plaintiff's experts was that they were tainted by expectation bias, examining only that evidence that supported their assertion that the fire was electrical in origin." The defendant argues: "[D]espite their acknowledgement of the authoritative nature of [standard] 921, neither Scheuritzel nor Mullen testified that he had followed its protocols. Neither man had even looked at all of the evidence. Mullen, a latecomer to the investigation, had not even examined the wire that was said to have been the source of the electrical fault . nor did he look at the kerosene container and cap collected from the scene.... [The defendant] was especially concerned with the introduction of expectation bias in the investigations conducted by these two individuals because their testimony revealed that they both heeded only that evidence that supported the theory of an electrical fault, and had not adequately addressed or even considered other possible causes of the fire. By refusing to consider evidence which might lead to an alternative conclusion, neither Scheuritzel nor Mullen conducted a systematic and scientific investigation of the fire scene. Their failure to comply with even the most basic tenets of a scientific methodology (including the performance of a full and complete investigation) illustrates the concerns [the defendant] had in having their opinions offered to the jury as expert opinions." The defendant argues, "[b]ecause neither of [the] plaintiff's proposed witnesses considered all of the evidence or relied on any recognized or reliable method in determining that the fire was caused by an electrical fault, their proposed testimony did not meet the Porter standard." (Citations omitted; footnote omitted; internal quotation marks omitted.) In other words, the defendant challenges the admissibility of the expert testimony, as it did at trial, on the ground that the plaintiff's expert witnesses did not adhere to the methodology set forth in standard 921, which both witnesses recognized as authoritative. The defendant does not attack the scientific basis for the expert testimony, but, rather, argues that they did not adhere to that science-that they did not follow the recognized scientific methods set forth in standard 921. This is the precise circumstance contemplated by the Porter court when it instructed that "questions regarding the manner in which [a scientific] technique was applied . [are] generally an issue of fact that goes to weight, and not admissibility." (Emphasis omitted.) State v. Porter , supra, 241 Conn. at 88 n.31, 698 A.2d 739. The defendant's assertion that investigations conducted by Scheuritzel and Mullen were not thorough and that they did not do all that could or should have been done goes to the weight of their testimony, not its admissibility. Because the defendant did not, in fact, attack the scientific reliability of the witnesses' testimony, the court did not abuse its discretion in admitting that testimony into evidence without a Porter hearing. III The plaintiff cross appeals from the judgment of the trial court on the ground that the court improperly awarded prejudgment interest, on the breach of contract award rendered by the jury, at the rate of 3 percent instead of 10 percent, which he requested pursuant to § 37-3a. We disagree. On July 2, 2014, the plaintiff filed a motion for prejudgment interest on the $504,360.10 awarded by the jury on his breach of contract claim. Pursuant to § 37-3a, the plaintiff sought prejudgment interest at the rate of 10 percent per year beginning on May 26, 2009, the date that the defendant notified the plaintiff of its denial of his claim. The defendant objected to the plaintiff's motion, arguing, inter alia, that § 37-3a sets the maximum rate at which prejudgment interest may be allowed at 10 percent, but that an award for prejudgment interest should be consistent with lower rates that had been prevalent during the period of time in which the moneys were allegedly wrongfully withheld from the plaintiff. On September 26, 2014, the court granted the plaintiff's motion for prejudgment interest, finding that although "an award of interest is not a matter of right . [based upon] the evidence presented at trial and the jury's verdict, the court believes that it is warranted in the present case. [The defendant] elected to base its decision to refuse payment on an in-house investigation and analysis, rather than an independent and impartial inquiry. All of the collecting, analyzing, and interpreting of evidence was performed by [the defendant's] employees, arguably skewing the results against the insured, and in favor of arson. In the end, the analysis hardly proved to a scientific certainty, much less a preponderance of the evidence, that the fire was intentional, rather than accidental in origin. Yet, it was the basis for [the defendant's] business decision that it was relieved of its contractual obligation to pay the claim of its insured. This is not a breach of contract as a result of an honest mistake or a good faith misunderstanding. It is in the interests of justice to award interest for the detention of money under such circumstances." As to the rate of interest awarded, the court explained: "[T]he court agrees that an award of interest at the statutory maximum rate of 10 percent would be inequitable in the present case. As with all damages, the award of interest is not intended to punish the defendant; it is meant to compensate the plaintiff for the loss of the use of his money. It is commonly recognized that, in the wake of the 2008 financial crisis and recession, interest rates for borrowing or investing money were at historic lows for several years. The [p]laintiff himself is aware of this, as he testified to it during the trial. The plaintiff's loss of the use of his money occurred during this period, and any interest award must take into account the economic conditions in effect at that time.... "Considering all of the above, under the particular facts and circumstances of this case, the court finds that prejudgment interest at a rate of 3 percent . per annum commencing on May 26, 2009, is appropriate to compensate the plaintiff for the loss of use of his money." The plaintiff now challenges the interest rate utilized by the trial court in awarding him prejudgment interest, arguing that the court improperly awarded prejudgment interest at the rate of 3 percent instead of the "presumptive statutory rate" of 10 percent. The plaintiff claims that the court improperly placed the burden on him to prove his entitlement to the 10 percent interest rate and that the court "established an arbitrary range, unconnected to the facts and circumstances of the case currently before it, outside of which it would not stray ." We disagree. Section 37-3a(a) provides in relevant part that "interest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions . as damages for the detention of money after it becomes payable." "The decision of whether to grant interest under § 37-3a is primarily an equitable determination and a matter lying within the discretion of the trial court.... 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.... The purpose of § 37-3a is to compensate plaintiffs who have been deprived of the use of money wrongfully withheld by defendants.... Whether interest may be awarded depends on whether the money involved is payable . and whether the detention of the money is or is not wrongful under the circumstances." (Citations omitted; internal quotation marks omitted.) Hartford Steam Boiler Inspection & Ins. Co. v. Underwriters at Lloyd's & Cos. Collective , 121 Conn.App. 31, 61, 994 A.2d 262, cert. denied, 297 Conn. 918, 996 A.2d 277 (2010). Here, in moving for prejudgment interest pursuant to § 37-3a, the plaintiff baldly claimed that it was entitled to interest at the rate of 10 percent per annum. The plaintiff presented no legal argument or analysis to the trial court in support of its claim of entitlement to interest at the rate of 10 percent. The plaintiff now claims that he was entitled to interest at the rate of 10 percent because it is the "presumptive statutory rate" of interest to which he is entitled under § 37-3a. Our Supreme Court has explained: "[ Section] 37-3a(a) provides for a maximum rate of interest of 10 percent, with discretion afforded to the trial court to order interest at a lesser rate.... [U]nder § 37-3a(a), an interest rate of less than 10 percent is presumptively valid, and therefore will be upheld, unless the party challenging the rate set by the court can demonstrate that it represents an abuse of discretion." (Citation omitted; emphasis in original; internal quotation marks omitted.) Ballou v. Law Offices Howard Lee Schiff, P.C. , 304 Conn. 348, 365, 39 A.3d 1075 (2012). In granting the award for prejudgment interest, the court relied heavily on the fact that the interest rates during the period of time that the funds were wrongfully detained from the plaintiff were lower than the 10 percent allowed under § 37-3a. The court explained that it "surveyed representative decisions of Superior Court [cases] in the first six months of 2014 and found that, with rare exceptions, most [courts] found that interest in the range of 3 to 6 percent per annum appropriately compensates a plaintiff for deprivation of the use of his or her money." The court clarified: "Obviously the appropriate exercise of legal discretion requires that each case be considered on its own merits. The object of a survey of other Superior Court decisions is not to suggest that an appropriate interest rate is the average of all interest rates employed by other judges. Rather it helps by giving an approximation of the upper and lower limits of the range within which-absent extraordinary circumstances-the court should exercise its discretion." With those other cases in mind, the court considered the "particular facts and circumstances of this case" and determined that interest at the rate of 3 percent was appropriate to compensate the plaintiff for the loss of use of his money. It is clear from the foregoing that the trial court carefully considered the facts and circumstances before it, together with the prevalent interest rates during the time period within which the plaintiff was deprived of his funds. We thus conclude that the court acted well within its discretion in awarding prejudgment interest at the rate of 3 percent. The judgment is affirmed. In this opinion the other judges concurred. In that letter, the defendant cited to the following provision of the plaintiff's insurance policy: "SECTION I-EXCLUSIONS "8. Intentional Loss "We do not provide coverage for the 'insured' who commits or conspires to commit an act with the intent to cause a loss." The letter directed the plaintiff to the "Special Provisions-Connecticut Endorsement (HO-300 CT (08-07)): "8. CONCEALMENT OR FRAUD "We will not provide coverage for the 'insured' who, whether before or after a loss has intentionally: "a. Concealed or misrepresented any material fact or circumstance; "b. Engaged in fraudulent conduct; or "c. Made material false statements relating to this insurance." The trial court comprehensively set forth the basis upon which the jury could have determined that the defendant's investigation-the investigation that led to its conclusion and ensuing allegation that the plaintiff committed arson-was, at best, incompetent. The defendant has not challenged the trial court's factual findings regarding its conduct. In fact, the defendant so concedes in its reply brief to this court, wherein it stated that it "has not appealed on the basis that it did not act tortiously." From Schoener's rush to judgment that the plaintiff had started the fire at his home, his removal of evidence from the plaintiff's home without providing notice that he was doing so, to the indifference with which he regarded fundamental principles of investigations, such as the contamination of evidence and the chain of custody, the incompetence of the defendant's investigation cannot reasonably be disputed. Upon being assigned the investigation, Schoener enlisted the assistance of John E. Sleights, another employee of the defendant who shared his cavalier approach to maintaining the integrity of their investigation. One of the most egregious examples of deficiency of the defendant's investigation was its handling of the kerosene container that had been near the kerosene heater in the exercise room at the time of the fire-the very container from which the plaintiff allegedly poured kerosene throughout the exercise room to start the fire. On February 27, 2009, the day after the fire, Schoener noticed the container in the bathroom adjacent to the exercise room, where it had been placed in the bathtub by one of the firefighters. Rather than take that container into evidence at that time, Schoener, along with the plaintiff and his public adjuster, placed the container in a wheelbarrow in the plaintiff's barn, where it remained, open and uncovered, over the following weekend. Schoener eventually put the container in the back of his pickup truck, where he allegedly took samples of the liquid contained in it on March 3, 2009. (It is noteworthy that the plaintiff testified that he had, in fact, emptied the kerosene container on February 27, 2009.) The evidence tag affixed to that container, presumably a key piece of evidence to the defendant's steadfast position that the plaintiff had used it to douse the exercise room with kerosene to start the fire, was completed by Sleights. The information on that tag, which was filled out by Sleights, is inaccurate. According to the tag, the container was seized by Sleights on February 27, 2009 from the second floor bathroom. The February 27, 2009 date actually appears in the field allotted for "Time." There is no indication as to what time it was collected. Sleights testified that his first involvement in the case, consistent with his personal notes, was not until March 3, 2009. In fact, Sleights conceded at trial that he had never seen the blue kerosene container outside of the defendant's laboratory prior to June, 2014. He never saw it at the plaintiff's home. Mullen testified that the proper protocol when an investigator finds a container that contains a substance that may have caused the fire would be to take it into custody immediately and properly document it. None of the defendant's witnesses ever provided a clear explanation as to why this simple, yet paramount, protocol was not followed. The incompetence surrounding the handling of this container is baffling. Compounding the obvious deficiency with the procedures employed by the defendant throughout its investigation of the origin and cause of the fire at the plaintiff's home is the fact that the testimony of Schoener and Sleights continues to change each time it is presented. John Machnicki, the "vice president in charge of [the defendant's] forensic consulting and analytical laboratories," confirmed that he had learned that Schoener "had not made proper documentation for what he had done at the scene of the Riley home ." The defendant's laboratory technician, Christine Lopol, testified that this was the first investigation in her twenty-two year career with the defendant in which she did not have complete chain of custody documentation for samples provided to her in an investigation. The previously described conduct is but one example of the problematic nature of the defendant's investigation. From that investigation, which was knowingly marred by a lack of integrity, came the defendant's unwavering accusation that the plaintiff had intentionally started the fire to his home. In considering the severity of the distress suffered by the plaintiff, the court referred to the evidence that it considered in denying the defendant's motion for remittitur, which will be more specifically set forth herein. "In response to increased judicial demands for a better showing of the reliability of scientific and technical experts, the National Fire Protection Association (NFPA) has formulated guidelines for fire scene investigations. NFPA 921 outlines a thorough basis for conducting a fire investigation. NFPA [921] has become the de facto national standard for fire scene examination and analysis." (Footnotes omitted; internal quotation marks omitted.) P. Giannelli et al., Scientific Evidence (5th Ed. 2012) § 26.03, pp. 1053-55. Although not binding on this court, we note that other jurisdictions have also held that an expert witness' alleged failure to strictly adhere to the guidelines set forth in standard 921 goes to the weight of the testimony of that expert, not its admissibility. See, e.g., Schlesinger v. United States, 898 F.Supp.2d 489, 505 (E.D.N.Y. 2012) ("The decision not to follow the methodology set forth in NFPA 921, as well as other purported flaws in the . methodology-e.g., the failure to rule out other possible causes-goes to the weight of the evidence, not its admissibility. See Allstate Ins. Co. v. Gonyo, No. 07-CV-1011, 2009 WL 1212481, *6 [N.D.N.Y. April 30, 2009] [denying Daubert challenge to an arson expert who [had] not 'ardently and strictly followed each step of NFPA' and holding that '[i]f there is any question that [the arson expert] did not eliminate every cause for the fire, this will not be determinative as to whether he will testify; all that it suggests is that the credibility of his decision may be subject to an attack.']; Pekarek [v. Sunbeam Products, Inc., 672 F.Supp.2d 1161, 1175-76 (D. Kan. 2008) ] [the mere fact that the expert did not 'cite or use NFPA 921 as his guide does not necessarily mean he failed to use a reliable method' and although he did not note and document all items that may have been potential causes of the fire 'such deficiencies, while grounds for cross-examination, are not sufficient to preclude a jury from hearing and considering his opinion testimony as to the point of origin or his opinion ruling out specific items such as the breaker panel and the candle [although not the attempt to light it] as possible causes of the fire']"). The plaintiff did not argue to the trial court that he was entitled to interest at the rate of 10 percent on the ground that it was the "presumptive statutory rate." Consequently, the trial court was not afforded the opportunity to consider the merits of that argument.

12489931

Anthony SINCHAK v. COMMISSIONER OF CORRECTION

Sinchak v. Comm'r of Corr.

2017-05-23

AC 37363

1208

1223

163 A.3d 1208

163

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

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

Fastcase

Anthony SINCHAK v. COMMISSIONER OF CORRECTION

Anthony SINCHAK v. COMMISSIONER OF CORRECTION AC 37363 Appellate Court of Connecticut. Argued November 17, 2016 Officially released May 23, 2017 Michael W. Brown, Wethersfield, assigned counsel, for the appellant (petitioner). Margaret Gaffney Radionovas, senior assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Eva B. Lenczewski, Waterbury, supervisory assistant state's attorney, for the appellee (respondent). Lavine, Sheldon and Flynn, Js.

7682

47844

SHELDON, J. The petitioner, Anthony Sinchak, appeals from the judgment of the habeas court, denying his fifth amended petition for a writ of habeas corpus in this action, wherein he challenges the lawfulness of his conviction of murder and kidnapping in the first degree, which was rendered against him after a jury trial in the judicial district of Waterbury in 1995. On appeal, the petitioner claims that the habeas court erred in rejecting his claims that: (1) his due process rights were violated at his underlying criminal trial because the jury's guilty verdict was against the weight of the evidence; (2) he was deprived of effective assistance of counsel in the underlying criminal trial by the failure of his trial counsel, Michael Graham, to marshal the facts in his favor during closing argument and to move, after the verdict, for a judgment of acquittal on each charge of which he was found guilty on the ground that the jury's guilty verdict was against the weight of the evidence; (3) he was deprived of effective assistance of counsel on direct appeal from his underlying conviction by the failure of his appellate counsel, Pamela S. Nagy, to raise his weight of the evidence claims as grounds for reversing the conviction; and (4) he was deprived of effective assistance of counsel in a prior habeas corpus proceeding, in which he challenged the lawfulness of the same underlying conviction by the failure of his prior habeas counsel, Donald J. O'Brien, to raise the previously described claims of ineffective assistance of both trial and appellate counsel as grounds for obtaining relief in that proceeding. We affirm the judgment of the habeas court. The following facts and procedural history are relevant to the petitioner's claims on appeal. On July 27, 1992, the victim, Kathleen Gianni, was working as a bartender at the Freight Street Social Club (social club), an illegal after-hours social club in Waterbury. The social club was jointly owned by Gianni's close friend, Jo Orlandi, and Dennis O'Connor, the president of the Helter Skelter Motorcycle Club (motorcycle club), of which the petitioner was a member. Dennis O'Connor's brother, Terrence O'Connor, who also was a motorcycle club member, worked as a doorman at the social club. State v. Sinchak , 47 Conn.App. 134, 136, 703 A.2d 790 (1997), appeal dismissed, 247 Conn. 440, 721 A.2d 1193 (1999), cert. denied, 319 Conn. 926, 125 A.3d 201 (2015). Gianni had only recently returned to work at the social club, at the urging of Orlandi, following a brief, self-imposed absence arising from her fear of retaliation by members of the motorcycle club after she gave a statement to police concerning a July 12, 1992 incident between the motorcycle club and the Los Solidos gang, following which seven motorcycle club members, including Dennis O'Connor, were arrested. As described by this court in its decision affirming the petitioner's underlying conviction on direct appeal, Orlandi and Gianni opened the social club for business at approximately 1 a.m. on July 27, 1992, after the motorcycle club had "held a barbecue fund-raiser to raise bail money for some incarcerated bikers. Both Orlandi and the [petitioner] attended the barbecue. The [petitioner] was accompanied by his girlfriend, Laura Ryan. . A number of people visited the [social] club that morning, including the [petitioner], Ryan, Terrence O'Connor and several other motorcycle club members. Also at the club that morning were Michael Lambo and James Palomba. "The [petitioner] and Ryan remained in the back office when Orlandi began to lock the front doors of the club. The [petitioner] walked out from the back office and fired a shot at Gianni, who was standing behind the far end of the bar. The [petitioner] threatened Orlandi and Ryan with the gun, stating that he could not allow any witnesses to the shooting and then fired several more shots at Gianni who lay on the floor behind the bar moaning and gasping. After the [petitioner] fired the final, fatal shot, he grabbed Orlandi and Ryan, placed the gun to their heads and announced that the three of them were going to leave the club and stay together until the whole incident was straightened out. "The three then went from the club to the Torrington residence of Lisa Fruin, the mother of the [petitioner's] infant son. Once at Fruin's residence, the [petitioner] disassembled the gun and ordered Fruin to dispose of the gun parts in a nearby dumpster. The [petitioner] disposed of the clothes that he had been wearing when he shot Gianni. The [petitioner] forced Ryan and Orlandi to remain with him and tied a bell to Orlandi's ankle while she slept so that he could hear if she attempted to escape. "Around noon the next day, the [petitioner] allowed Orlandi to leave, but ordered Ryan to stay with her for at least twenty-four hours. Orlandi returned home with Ryan and they remained there until approximately 4 p.m. the next day. At that time, Ryan left Orlandi's home with Dave Martorelli, another motorcycle club member. That night, the [petitioner] and Martorelli disposed of Gianni's body and attempted to burn down the club. "For the next several days, Orlandi denied any knowledge of Gianni's disappearance. On July 29, 1992, Orlandi opened the club at the request of the police, where evidence of the attempted arson and signs of the violence were discovered. The next day, Orlandi fled to Long Island, but ultimately returned to Connecticut and gave several statements to the police detailing the murder." State v. Sinchak , supra, 47 Conn.App. at 136-38, 703 A.2d 790. On April 21, 1995, following a jury trial at which the foregoing evidence was presented, the petitioner was found guilty of murder in violation of General Statutes § 53a-54a and two counts of kidnapping in the first degree in violation of General Statutes § 53a-92(a)(2)(B). Sinchak v. Commissioner of Correction , 126 Conn.App. 684, 685, 14 A.3d 343 (2011). The petitioner was later sentenced on those charges to a total effective term of ninety-six years in prison. This court affirmed the petitioner's conviction on direct appeal. State v. Sinchak , supra, 47 Conn.App. at 136, 703 A.2d 790. The petitioner subsequently commenced three habeas corpus actions challenging the lawfulness of his conviction. "On July 26, 2000, and July 3, 2001, the petitioner filed two separate pro se petitions for a writ of habeas corpus, which the habeas court consolidated for trial." Sinchak v. Commissioner of Correction , 126 Conn.App. 670, 672, 14 A.3d 348, cert. denied, 301 Conn. 901, 17 A.3d 1045 (2011). The consolidated petitions alleged that the petitioner had been deprived of effective assistance of counsel in his underlying criminal trial in several ways not claimed in the instant appeal. Id. On June 29, 2007, the habeas court, Swords, J. , issued a memorandum of decision denying the consolidated petitions. Id. The petitioner then petitioned for certification to appeal from the habeas court's judgment, which the habeas court also denied. Id. This court ultimately dismissed the petitioner's appeal from the habeas court's denial of the consolidated petitions. Id., at 671, 14 A.3d 348. On July 25, 2007, while the petitioner's appeal from the denial of the consolidated petitions was still pending, he commenced this action. In his original petition for a writ of habeas corpus herein, the petitioner alleged that he had received ineffective assistance of counsel in his prior habeas corpus proceeding. Sinchak v. Commissioner of Correction , supra, 126 Conn.App. at 685, 14 A.3d 348. Because, however, the petitioner's appeal from the denial of relief in that proceeding was still pending at the time he commenced this action, the habeas court, Swords, J. , concluded that his claims in this action were "premature." Id., at 686, 14 A.3d 343. On that basis, the court dismissed this action, sua sponte, for lack of subject matter jurisdiction. Id. The court thereafter granted the petitioner's petition for certification to appeal from its judgment of dismissal. Id. On the petitioner's ensuing appeal from the habeas court's judgment of dismissal in this action, this court reversed that judgment on the ground that the habeas court improperly failed to appoint counsel for the petitioner after his original petition herein was docketed. Id., at 692, 14 A.3d 343. On that basis, we remanded this case to the habeas court for further proceedings on the merits of the petitioner's claims. Id. Before this action was brought to trial on remand, the petitioner filed several amended petitions expanding its substantive scope. The action was ultimately tried on the petitioner's fifth amended petition, filed January 3, 2014 (operative petition), in which he pleaded that: (1) his due process rights were violated in his underlying criminal trial because the jury's guilty verdict was against the weight of the evidence; (2) his trial counsel rendered ineffective assistance in the underlying trial by failing "adequately [to] marshal . facts during . closing argument" and failing to "file a motion for judgment of acquittal" on the ground that the jury's guilty verdict was against the weight of the evidence; (3) his appellate counsel rendered ineffective assistance on direct appeal from his underlying conviction by failing to raise his weight of the evidence claims as grounds for reversing the conviction; and (4) his prior habeas counsel rendered ineffective assistance in the prior habeas corpus proceeding by failing to raise either his weight of the evidence claims or his previously described claims of ineffective assistance of trial and appellate counsel as grounds for relief in that proceeding. In his return to the petitioner's operative petition dated January 14, 2014, the respondent, the Commissioner of Correction, pleaded two special defenses. His first special defense, which was pleaded only as to the first count of the operative petition, was that the petitioner had procedurally defaulted on his due process claim that the jury's guilty verdict was against the weight of the evidence. In support of that special defense, the respondent alleged that the petitioner had failed to raise his due process claim at his underlying criminal trial or on direct appeal from his underlying conviction, and that the petitioner could not establish sufficient cause for his procedural default or prejudice arising from it to excuse such default and permit review of the defaulted claims for the first time in this proceeding. The second special defense, which was separately pleaded as to each count of the petition, was that the claim therein pleaded was not a claim upon which relief could be granted in a habeas corpus proceeding because, under our case law, specifically State v. Griffin , 253 Conn. 195, 199-202, 749 A.2d 1192 (2000), the weight of the evidence claim on which it was based could only be assessed by the trial judge who had presided over the trial where the challenged verdict was returned. The petitioner replied to the respondent's first special defense in a pleading dated January 15, 2014, by pleading in avoidance that if his due process claim was procedurally defaulted, the procedural default was cured by cause and prejudice, in that he had received ineffective assistance of counsel in each prior proceeding where his defaulted claim could have been raised. The petitioner denied the respondent's second special defense, but pleaded, in the alternative, that if our law supported that special defense, "the law should be changed." After a two day trial, the habeas court, Mullins, J. , denied the petitioner's operative petition for a writ of habeas corpus. In so doing, the court first ruled that the petitioner had procedurally defaulted on his weight of the evidence claims by failing to raise them either at trial or on direct appeal. Thereafter, it ruled that the petitioner could not lift the bar to review of those procedurally defaulted claims by proving cause and prejudice based upon alleged ineffective assistance by trial or appellate counsel in failing to raise them because, as the respondent had pleaded in his second special defense, the habeas court itself was not legally competent to assess or make rulings as to the probable merits of those claims. In support of that ruling, the court determined, more particularly, that in order to establish either prong of ineffective assistance of counsel based upon the failure of his counsel to raise the petitioner's weight of the evidence claims either at trial or on direct appeal, the petitioner was required to establish that there was a reasonable probability that he would have prevailed on those claims had counsel timely raised them. Because, however, under Griffin , only the judge who presided over the trial where a challenged verdict was returned is legally competent to decide if that verdict was against the weight of the evidence, a judge in a later proceeding, such as a direct appeal or a habeas corpus proceeding, is not legally competent to decide such a claim on the basis of the cold printed record before it. State v. Griffin , supra, 253 Conn. at 202, 749 A.2d 1192. The court therefore ruled that the petitioner could not establish ineffective assistance of either trial or appellate counsel because the court itself could not decide whether he was likely to prevail on his weight of the evidence claim had counsel raised it at either his underlying criminal trial or on direct appeal from his underlying conviction. For the latter reason as well, the court rejected the petitioner's separate claims of ineffective assistance of trial, appellate and prior habeas counsel, based upon their respective failures to raise his weight of the evidence claim at trial, on direct appeal or in the prior habeas corpus proceeding, because proof of any such claim required the petitioner to establish, and the habeas court to decide, in violation of Griffin , that there was a reasonable probability that he would have prevailed on that claim had counsel raised it in the earlier proceedings. So ruling, although the habeas court duly noted that the proper remedy for a successful challenge to a jury's verdict on weight of the evidence grounds is a new trial rather than a judgment of acquittal, the habeas court had no occasion to reach, or thus to rule on, the question of whether the petitioner's ineffective assistance claims should be rejected because they all were based on trial counsel's failure to move for a judgment of acquittal as to each charge of which the petitioner was convicted on weight of the evidence grounds. The court finally concluded that the petitioner's remaining two claims of ineffective assistance of counsel, both of which were based upon trial counsel's alleged failure to marshal the facts in the petitioner's favor during closing argument at his underlying criminal trial, were meritless in light of the obvious competence of trial counsel in delivering that closing argument. Upon finding that the petitioner had failed to meet his burden of proving either deficient performance by trial counsel in delivering his closing argument or prejudice arising from that performance, as required to prove ineffective assistance under the well established test enunciated in Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the court rejected that claim, both as pleaded directly in the second count of his operative petition, and as pleaded derivatively, in his fourth count, as a basis for asserting ineffective assistance of prior habeas counsel for failing to raise that claim in the prior habeas proceeding. Upon making the foregoing findings and rulings, the habeas court rendered judgment in favor of the respondent on all counts of the operative petition. Thereafter, the court granted the petitioner's petition for certification to appeal from its denial of the petition. This appeal followed. Although the petitioner has raised four claims in this appeal from the habeas court's denial of his operative petition, all such claims are based upon challenges to the court's rejection of two common claims, which, alone or in combination, underlie each count of the petition. The first common underlying claim is that the jury's guilty verdict in the underlying criminal trial was against the weight of the evidence. The second common underlying claim is that the petitioner's trial counsel in the underlying criminal trial was ineffective in failing to marshal the facts in the petitioner's favor during closing argument. Because the ultimate disposition of those two common claims is dispositive of this entire appeal, we focus our analysis on the petitioner's challenges to the habeas court's resolution of those claims. For the following reasons, we agree with the respondent that the habeas court correctly resolved both claims, and thus that its judgment denying all counts of the operative petition must be affirmed. I We first address the petitioner's common underlying claim that the jury's guilty verdict in his underlying criminal trial was against the weight of the evidence. The petitioner asserted that claim directly, in count one of his operative petition, as a basis for claiming that his due process rights were violated in his underlying criminal trial. He also asserted that claim derivatively, in counts two, three and four of his petition, as a basis for claiming that he was prejudiced by the failures of his trial, appellate and prior habeas counsel, respectively, to raise that claim either at his trial, on his direct appeal, and in his prior habeas corpus proceeding. The respondent responded to count one of the operative petition, wherein the petitioner claimed a due process violation on the basis of his weight of the evidence claims, by specially pleading that the petitioner had procedurally defaulted on those claims by failing to raise them in either his underlying criminal trial or on direct appeal from his underlying criminal conviction. He further alleged that the petitioner could not establish sufficient cause for or prejudice arising from his procedural default to excuse such default and permit review of the defaulted claims in a habeas corpus proceeding. The petitioner replied to that special defense by pleading in avoidance that if his due process claim was procedurally defaulted, the procedural default was cured by cause and prejudice, arising from the ineffective assistance of counsel he had received in each prior proceeding in which his defaulted claim allegedly should have been raised. The respondent further responded to all four counts of the petition by specially pleading that those counts fail to state claims upon which relief can be granted in a habeas corpus proceeding because they raise questions that could be decided only by the trial judge who had presided over the trial where the challenged verdict was returned. The habeas court noted at the start of its analysis, as the petitioner had conceded, that the petitioner had not raised his weight of the evidence claims either at his underlying criminal trial or on direct appeal from the conviction rendered against him therein. The essential question thus presented on the petitioner's due process claim was whether the petitioner should be barred by his procedural default from raising those claims in this action. In order for a habeas court to decide the merits of a petitioner's procedurally defaulted claim, the petitioner must typically demonstrate cause and prejudice for his failure to preserve that claim. Chaparro v. Commissioner of Correction , 120 Conn.App. 41, 48, 990 A.2d 1261, cert. denied, 297 Conn. 903, 994 A.2d 1287 (2010). "Under this standard, the petitioner must demonstrate good cause for his failure to raise a claim at trial or on direct appeal and actual prejudice resulting from the impropriety claimed in the habeas petition." (Internal quotation marks omitted.) "The cause and prejudice standard is designed to prevent full review of issues in habeas corpus proceedings that counsel did not raise at trial or on appeal for reasons of tactics, [inadvertence] or ignorance . [T]he existence of cause for a procedural default must ordinarily turn on whether the [petitioner] can show that some objective factor external to the defense impeded counsel's efforts to comply with the [s]tate's procedural rule.... Cause and prejudice must be established conjunctively.... If the petitioner fails to demonstrate either one, a trial court will not review the merits of his habeas claim." (Citations omitted; internal quotation marks omitted.) Crawford v. Commissioner of Correction , 294 Conn. 165, 191, 982 A.2d 620 (2009). The reviewability of the petitioner's procedurally defaulted weight of the evidence claims thus depends upon the validity of the petitioner's plea in avoidance to the respondent's first special defense, to wit: that his procedural default should not bar him from prosecuting such claims in a habeas corpus action because the default had resulted from ineffective assistance by his trial and appellate counsel, which had caused him prejudice. A successful ineffective assistance of counsel claim can satisfy the cause and prejudice standard so as to cure a procedurally defaulted claim. Johnson v. Commissioner of Correction , 285 Conn. 556, 569-70, 941 A.2d 248 (2008) ; see also Valeriano v. Bronson , 209 Conn. 75, 83-85, 546 A.2d 1380 (1988) ("[T]he cause and prejudice test is unnecessary when a habeas court is faced with a claim formulated within the narrow confines of ineffective assistance of appellate counsel.... [W]e conclude that it is simpler and more appropriate to move directly to the Strickland test." [Citations omitted.] ). The legal principles that govern an ineffective assistance of counsel claim are well settled. See Strickland v. Washington , supra, 466 U.S. at 687, 104 S.Ct. 2052. "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.... "The second prong is . satisfied if the petitioner can demonstrate that there is a reasonable probability that, but for that ineffectiveness, the outcome would have been different." (Citation omitted; internal quotation marks omitted.) Horn v. Commissioner of Correction , 321 Conn. 767, 775-76, 138 A.3d 908 (2016). A petitioner must prevail on both Strickland prongs. Lewis v. Commissioner of Correction , 165 Conn.App. 411, 451, 139 A.3d 759, cert. denied, 322 Conn. 901, 138 A.3d 931 (2016). Therefore, "[i]t is axiomatic that courts may decide against a petitioner on either prong, whichever is easier." Id. Against this background, although the procedural bar to review of an unpreserved claim is usually lifted when the defaulting party alleges that his failure to raise that claim in an earlier proceeding resulted from ineffective assistance of counsel, such an allegation is insufficient to remove the bar to review of that claim if the petitioner cannot establish that he was prejudiced by counsel's failure to raise the claim previously. To establish such prejudice, the petitioner must demonstrate that his procedurally defaulted claim had sufficient merit such that there was a reasonable probability that he would have prevailed on that claim had counsel raised it in a timely manner. In the present case, the habeas court ruled that it was unable to review the petitioner's claim that the jury's guilty verdict was against the weight of the evidence because, under our case law, only the trial judge who presided over the trial in which a challenged verdict was returned is legally competent to make that determination. If the habeas court was correct in so ruling, then its denial of the petitioner's first claim on appeal must be affirmed because the petitioner could never establish the prejudice element of ineffective assistance of counsel, as required to establish the reviewability of the claim under the cause and prejudice standard. A trial court is empowered "to set . aside [a verdict] where the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles, or as to justify the suspicion that [the jurors] or some of them were influenced by prejudice, corruption or partiality." (Internal quotation marks omitted.) American National Fire Ins. Co. v. Schuss , 221 Conn. 768, 774, 607 A.2d 418 (1992). "In passing upon a motion to set aside a verdict, the trial judge must do just what every juror ought to do in arriving at a verdict. The juror must use all his experience, his knowledge of human nature, his knowledge of human events, past and present, his knowledge of the motives which influence and control human action, and test the evidence in the case according to such knowledge and render his verdict accordingly. A juror who did not do this would be remiss in his duty. The trial judge in considering the verdict must do the same, or fail in the discharge of that function which the law has laid upon him; and if, in the exercise of all his knowledge from this source, he finds the verdict to be so clearly against the weight of the evidence in the case as to indicate that the jury did not correctly apply the law to the facts in evidence in the case, or were governed by ignorance, prejudice, corruption or partiality, then it is his duty to set aside that verdict and to grant a new trial." Howe v. Raymond , 74 Conn. 68, 72, 49 A. 854 (1901). Because the making of such a determination depends upon an assessment, not only of the probative value of the evidence presented at trial, but of the circumstances in which such evidence was presented to, argued before, and deliberated upon by the jury, considerable deference is accorded to the trial judge's decision whether to grant or deny a motion to set aside the verdict in view of the judge's "superior opportunity to assess the proceedings over which he or she has personally presided." State v. Hammond , 221 Conn. 264, 269, 604 A.2d 793 (1992), abrogated in part on other grounds by State v. Ortiz , 280 Conn. 686, 720 n.19 and 722 n.22, 911 A.2d 1055 (2006). Against this background, our Supreme Court decided, in State v. Griffin , supra, 253 Conn. at 202, 749 A.2d 1192, that a trial judge's special opportunity to assess the proceedings over which he or she has presided is so unique and indispensable in deciding if a jury's challenged verdict was against the weight of the evidence that such a claim could not be made for the first time before a different judge in a later proceeding. On that basis, the Griffin court ruled that a defendant's claim that he was entitled to a new trial on the ground that the verdict was against the weight of the evidence could not be reviewed on direct appeal. The Griffin court reasoned that "[i]t follows inexorably from the nature of the defendant's claim, namely, that the testimony of the state's key witness . was not believable, that the defendant's failure to raise such a claim in the trial court is fatal to his claim on appeal. On a cold record, we cannot meaningfully assess [the] credibility [of the state's key witness] to determine whether his testimony, which, if credited, concededly was sufficient to support the defendant's convictions, nevertheless was so unworthy of belief as to warrant a conclusion that allowing the verdict to stand wouldn't constitute a manifest injustice. . Only the trial judge was in a position to evaluate [the state's key witness'] testimony, along with the other relevant evidence, to make such a determination." (Citations omitted.) Id. In the present case, the habeas court stated that, in order to demonstrate prejudice resulting from trial counsel's failure to move to set aside the verdict as against the weight of the evidence, the petitioner was required to prove that the "manifest injustice of the verdict [was] so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles, or as to justify the suspicion that [the jurors] or some of them were influenced by prejudice, corruption or partiality.... The petitioner has presented no evidence to support such a showing here." (Citation omitted; internal quotation marks omitted.) Instead, the court noted that "all the petitioner has done is present this court with the transcripts from the criminal trial, which he admits contain evidence to support the jury's verdict.... [T]he petitioner is simply asking this court to act as another juror or as the trial judge and retry the criminal case.... Here, this court had no opportunity to view the witnesses, assess their credibility or determine what weight should have been given to their testimony. This court had no opportunity to gauge the tenor of the trial. Thus, this court cannot, based on a cold printed record of the criminal trial, conclude that the jury's verdict was against the weight of the evidence. Significantly, without demonstrating that the jury misapplied any legal principles or that the jury was influenced by prejudice, corruption or partiality, the petitioner's claim falls outside specific limitations permissible for a trial court to set aside a jury verdict as against the weight of the evidence. "Indeed, the petitioner presents nothing more than a claim that conflicting evidence should have been resolved in his favor.... In this case, the jury has resolved the conflicting evidence against the petitioner, and nothing has been presented to this court that undermines confidence in the jury's verdict . Consequently, the petitioner has failed to demonstrate any prejudice." (Citations omitted.) In the present case, the petitioner's weight of the evidence claim was not raised at trial or on direct appeal. Raised for the first time, as it was, in the habeas corpus proceedings, the claim is unreviewable in this action under the rule of Griffin , because only a trial court is in the position to determine if a challenged verdict was against the weight of the evidence. The petitioner therefore cannot satisfy the cause and prejudice standard to permit the review of his procedurally defaulted claim because he cannot make the requisite showing of prejudice, as required to prove ineffective assistance of counsel in failing to raise that claim either at trial or on appeal. As with the petitioner's direct claim that the jury's guilty verdict was against the weight of the evidence, the petitioner's derivative claims of ineffective assistance by trial, appellate, and first habeas counsel for failing to raise that claim, respectively, at trial, on direct appeal, and in his prior habeas corpus proceeding are obviously dependent upon the merits of the petitioner's weight of the evidence claim. The petitioner's claim in count two, which is that his trial counsel was ineffective in failing to raise the weight of the evidence claims at trial, is, in all respects, identical to the claim of ineffective assistance by which he sought to satisfy the cause and prejudice standard with respect to the due process claim pleaded directly in count one. Similarly, the petitioner's claims in counts three and four, of ineffective assistance by appellate counsel for failing to raise the claim pleaded in count one as a ground for relief on direct appeal and failing to raise the ineffective assistance claims pleaded in counts two and three as grounds for relief in his prior habeas corpus proceeding, required proof of the probable merits of the petitioner's weight of the evidence claim, which, as with the other counts of the petition, only the trial judge was legally competent to decide. Because we conclude that the habeas court was not empowered to decide the probable merits of the petitioner's weight of the evidence claims under any count of the operative petition, as was required to establish ineffective assistance of counsel based upon counsel's failure to assert those claims either at trial, on appeal, or in the prior habeas corpus proceeding, we affirm the habeas court's decision rejecting all of those claims as well. II The second common underlying claim, upon which the remainder of the petitioner's claims in this action are based, is that trial counsel in his underlying criminal trial was ineffective in failing to marshal the facts in the petitioner's favor during closing argument. The petitioner asserted that claim directly in the second count of his operative petition, and derivatively in his fourth count as a basis for alleging ineffective assistance by prior habeas counsel in failing to raise that claim in the prior habeas corpus proceeding. The habeas court rejected that claim on the merits after reviewing the record of the underlying criminal trial. If we agree with the habeas court that the petitioner's trial counsel was not ineffective in failing to marshal the facts in the petitioner's favor during closing argument in his underlying criminal trial, then we must affirm the habeas court's rejection of both of the petitioner's resulting ineffective assistance claims. We begin by setting forth our standard of review. "The habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous. . The application of the habeas court's factual findings to the pertinent legal standard, however, presents a mixed question of law and fact, which is subject to plenary review." (Internal quotation marks omitted.) Horn v. Commissioner of Correction , supra, 321 Conn. at 775, 138 A.3d 908. The legal principles that govern an ineffective assistance claim, as previously noted, are well settled. See Strickland v. Washington , supra, 466 U.S. at 687, 104 S.Ct. 2052. "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.... "The second prong is . satisfied if the petitioner can demonstrate that there is a reasonable probability that, but for that ineffectiveness, the outcome would have been different." (Citation omitted; internal quotation marks omitted.) Horn v. Commissioner of Correction , supra, 321 Conn. at 775-76, 138 A.3d 908. Regarding the performance prong, "[j]udicial scrutiny of counsel's performance must be highly deferential. . 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.... [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." (Internal quotation marks omitted.) Spearman v. Commissioner of Correction , 164 Conn.App. 530, 539, 138 A.3d 378, cert. denied, 321 Conn. 923, 138 A.3d 284 (2016). A petitioner must satisfy the two-pronged test set forth in Strickland. Lewis v. Commissioner of Correction , supra, 165 Conn.App. at 451, 139 A.3d 759. Therefore, "[i]t is axiomatic that courts may decide against a petitioner on either prong, whichever is easier." Id. The habeas court's findings support the conclusion that the petitioner's trial counsel was not ineffective in marshaling the facts in his favor during the closing argument. Thus, although noting that "[t]he petitioner's posttrial brief specifie[d] a virtual tsunami of . failures [to adequately marshal facts in the closing argument]," the habeas court flatly disagreed. Upon reviewing Graham's closing argument, it concluded, without equivocation, that the argument was "well within the boundaries of reasonable professional judgment." We agree. During his closing argument, Graham necessarily determined which topics to cover from the lengthy criminal trial. The petitioner, in his posttrial brief and again on appeal, noted that during the five week trial, "evidence was presented over the course of eighteen days and included testimony from forty-one different witnesses." At the start of his hour-long closing argument, Graham took note of this fact, stating that he was "not going to remember every contradiction that happened in this case," and thus that he was "just not going to remember to cover every point. There's too many of them." Noting that the trial had been long, and that there had been many witnesses, Graham cautioned the jury that if he did not mention something in his closing argument, it "[did not] mean [it was] not worth" the jury's consideration. The habeas court also found that when Graham "reached the end of that hour, the state objected to his continuing to present arguments. The trial court extended the hour" by a few minutes to allow Graham to conclude. "Second, and perhaps more significantly," the court continued, "in the time allotted to him for closing argument, [Graham] highlighted many discrepancies in the evidence presented to the jury, emphasizing the internal and external inconsistencies of the story conveyed by [Orlandi] with the forensic evidence and common sense analysis.... At the very end of his argument, [Graham] again told the jury to 'please understand because I didn't mention something here doesn't mean it's not important. And I want you to look at all the evidence in the case critically before coming to any conclusion.' " In the end, the habeas court concluded that the petitioner had not overcome the presumption that counsel "exercised reasonable professional judgment, employed a reasonable strategy, and performed adequately in selecting and presenting his arguments to the jury. Additionally, the petitioner has not shown that any purported errors deprived him of a fair trial, nor that they even had some conceivable effect on the outcome of the trial, nor has he undermined this court's confidence in the outcome of the criminal trial. The claim of ineffective assistance related to the closing arguments, therefore, fails on both the performance and prejudice prongs." Additional facts are necessary for the resolution of this claim. Graham had elicited testimony from Lambo during the underlying criminal trial that Terrence O'Connor was believed to be in charge of ordering hits for the motorcycle club. Moreover, Lambo testified that O'Connor and three other men, all dressed in red shirts as members of the motorcycle club, were at the social club on the night that the victim was murdered. He stated that O'Connor entered Orlandi's office, and that the three other men in red shirts left the social club, but that O'Connor never left Orlandi's office after entering it a second time. Lambo testified that he never saw O'Connor exit the social club. We agree with the habeas court that the petitioner's claim of ineffective assistance in closing argument fails on both the performance and the prejudice prongs. In his closing argument, Graham challenged, in a variety of ways, the credibility of the state's three key witnesses, Orlandi, Ryan and Fruin. Graham argued that Orlandi "wrote the script" of the story that blamed the petitioner for the murder, a story which Ryan and Fruin adopted. Graham explicitly asked the jury to not trust Orlandi's, Ryan's or Fruin's testimony. He argued that Ryan had adopted Orlandi's "script" because she was pressured to do so by her parents and the police, and that Fruin had done the same because she feared going to jail and losing custody of her child. He stated that to implicate the petitioner in the murder was less dangerous for all three witnesses than to implicate other members of the petitioner's motorcycle gang, who remained at liberty in the community in a position to harm them. Graham argued, more specifically, that there were several important reasons for doubting Orlandi's credibility, including that her story was internally inconsistent and that the murder could not have occurred in the manner that she and Ryan had described. Graham argued that there had been inconsistencies between the witnesses' statements and their testimony at trial, and suggested that the murder had occurred in a different manner than that to which they had testified. He highlighted Orlandi's actions that exhibited a consciousness of guilt, including driving the getaway car and hiding evidence. He argued that the police did a sloppy and careless job, and failed to investigate other possible suspects because they had focused exclusively on the petitioner. He also argued that bullet evidence may have been planted and should be disregarded by the jury, and that witness testimony refuted the state's claim that the petitioner possessed the gun that was used to murder the victim. Graham also pointed to Terrence O'Connor who, he argued, should always have been considered a suspect. During his closing argument, Graham also highlighted the testimony of Palomba and Lambo, both of whom testified that the petitioner had left the social club prior to the shooting. In the end, however, he reiterated that "the biggest doubts you ought to have is the integrity of [Orlandi] and [Ryan]." Hence, after positing several supportable theories as to what may have occurred, he reminded the jurors of the state's heavy burden of proof and concluded that the evidence before them, Orlandi and Ryan's testimony, prevented them from finding that the state had satisfied that heavy burden. We find that the petitioner's trial counsel gave a well reasoned and detailed closing argument. As Graham was not required to take any particular approach in the argument, nor to address every facet of the case, we conclude that he did not provide ineffective assistance of counsel. See Yarborough v. Gentry , 540 U.S. 1, 8, 124 S.Ct. 1, 157 L.Ed.2d 1 (2003) ("selection of arguments for summation is a core exercise of defense counsel's discretion"). Graham had a limited amount of time in which to present the main themes of the petitioner's defense in a long and complicated trial, and he did so competently. He was not required to present every minor detail of his defense theory. "Even if some of the arguments would unquestionably have supported the defense, it does not follow that counsel was incompetent for failing to include them. Focusing on a small number of key points may be more persuasive than a shotgun approach." Id., at 7, 124 S.Ct. 1. Moreover, Graham's argument mainly addressed how the jury should not believe the testimony of Orlandi, Ryan and Fruin, which is precisely what the petitioner claims he should have done. When a convicted defendant complains of ineffectiveness of counsel, he must show that counsel's representation fell below an objective standard of reasonableness. Johnson v. Commissioner of Correction , supra, 285 Conn. at 577, 941 A.2d 248. We agree with the habeas court that, on the basis of the record before us, the petitioner has not met that burden here. Because the petitioner's claim of ineffective assistance of trial counsel for failing adequately to marshal the facts in his favor during the closing argument fails on the merits, so does his derivative claim of ineffective assistance of prior habeas counsel for failing to raise that claim in the prior habeas proceeding. The judgment is affirmed. In this opinion the other judges concurred. The petitioner received consecutive sentences of sixty years imprisonment for murder, eighteen years for the kidnapping of Orlandi, and eighteen years for the kidnapping of Ryan. The petitioner filed his direct appeal in the Supreme Court initially, but it was subsequently transferred to this court. See State v. Sinchak, supra, 47 Conn.App. at 135 n.1, 703 A.2d 790. Those reasons include that the petitioner's trial counsel allegedly (1) failed to file a motion to discover certain exculpatory statements prior to the hearing in probable cause, (2) failed to conduct an adequate pretrial investigation, (3) failed to hire a forensics expert, (4) failed to move for a mistrial or dismissal, (5) failed to confront certain witnesses with conflicting testimony, (6) failed to timely file a motion for a new trial, (7) failed to speak on his behalf at sentencing, and (8) was intoxicated during portions of the trial. The petitioner also commenced a third habeas proceeding by filing a third petition for habeas corpus on October 13, 2010, which was subsequently declined due to the petitioner's failure to comply with Practice Book § 23-24. The habeas court denied the petitioner's petition for certification and this court dismissed the petitioner's appeal from that decision on April 19, 2011. "When a respondent seeks to raise an affirmative defense of procedural default, the rules of practice require that he or she must file a return to the habeas petition 'alleg[ing] any facts in support of any claim of procedural default . or any other claim that the petitioner is not entitled to relief.' Practice Book § 23-30(b). 'If the return alleges any defense or claim that the petitioner is not entitled to relief, and such allegations are not put in dispute by the petition, the petitioner shall file a reply.' Practice Book § 23-31(a). 'The reply shall allege any facts and assert any cause and prejudice claimed to permit review of any issue despite any claimed procedural default.' Practice Book § 23-31(c)." Johnson v. Commissioner of Correction, 285 Conn. 556, 567, 941 A.2d 248 (2008). See generally Strickland v. Washington, supra, 466 U.S. at 687, 104 S.Ct. 2052 (setting forth two-pronged analysis standard for claims of ineffective assistance of counsel). See Johnson v. Commissioner of Correction, supra, 285 Conn. at 569-70, 941 A.2d 248. As described by the habeas court, they included alleged failures to "undermine [Orlandi's] credibility; undermine [Ryan's] credibility; undermine [Fruin's] credibility; undermine the time line provided by [Orlandi] and [Ryan] with the testimonies of [Palomba] and [Lambo]; undermine [Ryan's] version of events with Dr. Edward McDonough's testimony; argue that the blood found in Silvio Martorelli's car did not match the victim's blood; effectively use the testimony of Nancy Fogerty, highlight the circumstances under which Ryan's first statement was given to police; show that [Orlandi] had the opportunity to create her version of events based on her observation of the destroyed club; argue [Orlandi's] and [Ryan's] culpability; use the facts related to [Orlandi's] keys; highlight the contradiction between [Orlandi's] version of the shooting and [Ryan's] version of the shooting; illustrate the discrepancy over the number of bullets fired; and stress the facts regarding [Orlandi] and [Fruin's] opportunity to escape."

12491855

STATE of Connecticut v. Paul DAVIS

State v. Davis

2017-11-28

AC 37582

71

75

175 A.3d 71

175

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:29.057506+00:00

Fastcase

STATE of Connecticut v. Paul DAVIS

STATE of Connecticut v. Paul DAVIS AC 37582 Appellate Court of Connecticut. Argued September 26, 2017 Officially released November 28, 2017 Mary A. Beattie, assigned counsel, for the appellant (defendant). Rocco A. Chiarenza, assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and John F. Fahey, senior assistant state's attorney, for the appellee (state). Alvord, Mullins and Beach, Js. The listing of judges reflects their seniority status on this court as of the date of oral argument.

2268

13464

MULLINS, J. This case returns to us on remand from our Supreme Court; see State v. Davis , 325 Conn. 918, 163 A.3d 618 (2017) ; with direction to consider the claim of plain error raised by the defendant, Paul Davis, in light of its decision in State v. McClain , 324 Conn. 782, 155 A.3d 209 (2017). We now consider the defendant's appeal from the judgment of conviction of accessory to murder in violation of General Statutes § 53a-54a(a) and 53a-8(a), in which he claimed that the trial court committed plain error by improperly instructing the jury that it was not necessary for the state to prove that the defendant intended to kill the victim to find him guilty of accessory to murder. We conclude that the trial court did not instruct the jury that it was not necessary for the state to prove the defendant's intent to kill. Rather, the trial court properly instructed the jury that the state was not required to prove that the defendant intended to kill the specific victim that was killed. Accordingly, we affirm the judgment of the trial court. The following facts, as set forth in our first Davis opinion; State v. Davis , 163 Conn.App. 458, 136 A.3d 257 (2016), remanded in part, 325 Conn. 918, 163 A.3d 618 (2017) ; are relevant here. "The defendant was a member of a gang in Hartford. On May 28, 2006, in retaliation for a shooting that occurred earlier that day in which another member of the defendant's gang was shot, the defendant, Ackeem Riley and Dominique Mack discussed conducting a drive-by shooting in the Nelton Court area of Hartford. The trio had no specific victim intended. "The defendant drove himself, Riley and Mack toward the Nelton Court area in a car he had borrowed. Riley was armed with a nine millimeter Glock handgun. Mack was armed with a nine millimeter Taurus. As the defendant drove, he, Riley and Mack saw a group of children at the corner of Elmer and Clark Streets. Riley and Mack fired at least seventeen shots from their handguns at the group, striking two boys. One of the victims, Kerry Foster, Jr., a fifteen year old boy, was hit by five bullets, resulting in his death. The other victim, Cinque Sutherland, a fourteen year old boy, was hit by three bullets, resulting in serious injury. "After the shooting, the defendant, Riley and Mack fled the scene and left the car on Guilford Street. From there, they summoned a cab to take them to 140 Oakland Terrace. Riley, Mack and another man later returned to the vehicle and set it on fire. "On June 7, 2006, the defendant agreed to speak with members of the Hartford Police Department, and he provided them with information about the shooting. He told the officers about the planning of the shooting, the types of firearms used and where they could be found. He also told them how the vehicle used in the shooting later was set on fire. The defendant, however, did not disclose his involvement in the shooting until almost three years later, in May, 2009, when he again spoke to the police and provided a written statement. "After providing a written statement to the police, the defendant was charged [inter alia] with and later convicted of accessory to murder ." Id., at 460-61, 136 A.3d 257 ; see also footnote 1 of this opinion. Additional facts will be set forth as necessary. The defendant claims, with respect to his conviction of accessory to murder, that the trial court improperly instructed the jury that it was not necessary for the state to prove that he intended to kill the victim to find him guilty of accessory to murder. The defendant concedes that he waived this claim pursuant to State v. Kitchens , 299 Conn. 447, 482-83, 10 A.3d 942 (2011). He argues, however, this instruction was "plain error and failure to grant relief would result in manifest injustice." We are not persuaded that the court committed error in its instruction. "An appellate court addressing a claim of plain error first must determine if the error is indeed plain in the sense that it is patent [or] readily [discernible] on the face of a factually adequate record, [and] also . obvious in the sense of not debatable. . This determination clearly requires a review of the plain error claim presented in light of the record. Although a complete record and an obvious error are prerequisites for plain error review, they are not, of themselves, sufficient for its application. . [T]he 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. . [I]n addition to examining the patent nature of the error, the reviewing court must examine that error for the grievousness of its consequences in order to determine whether reversal under the plain error doctrine is appropriate. A party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice. . [Previously], we described the two-pronged nature 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." (Citations omitted; emphasis omitted; internal quotation marks omitted.) State v. McClain , supra, 324 Conn. at 812, 155 A.3d 209. In evaluating a claim of instructional impropriety, however, "we must view the court's jury instructions as a whole, without focusing unduly on one isolated aspect of the charge. . In determining whether a jury instruction is improper, the charge . is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect [on] the jury in guiding [it] to a correct verdict in the case." (Citation omitted; internal quotation marks omitted.) State v. Carrion , 313 Conn. 823, 845, 100 A.3d 361 (2014). During its charge to the jury on the crime of accessory to murder, the court instructed, in relevant part: "I have provided the elements of the crime of murder previously. However, with respect to intent in this particular count, it is not necessary for a conviction of murder that the state prove that the defendant intended to kill Kerry Foster." The defendant contends that this is "a patently incorrect statement of the law" because it told the jury that the state "did not need to prove specific intent to murder." The state responds that the court's instruction was correct in law and that it did not tell the jury that it did not have to find a specific intent to kill-only that it did not have to find a specific intent to kill this particular victim . We agree with the state. When instructing the jury in this case, the court repeatedly told it that in order to find the defendant guilty, it had to find that the defendant had the specific intent to kill. When the court gave its instructions on the crime of murder, which it specifically referenced in its instructions on accessory to murder, the court stated: "For you to find the defendant guilty of the charge of murder, the state must prove the following elements beyond a reasonable doubt: "An intent to cause death. The first element is that the defendant specifically intended to cause the death of another person. There is no particular length of time necessary for the defendant to have formed the specific intent to kill. A person acts intentionally with respect to a result when his conscious objective is to cause such result. "The specific intent to cause death may be inferred from circumstantial evidence. Please refer to my earlier instructions concern[ing] specific intent. The type and number of wounds inflicted may be considered as evidence of the perpetrator's intent and from such evidence an inference may be drawn that there was intent to cause death. Any inference may be drawn from the nature of any instrumentality used and the manner of its use in an inference of fact to be drawn by you upon consideration of these and other circumstances in the case in accordance with my previous instructions. This inference is not a necessary one. That is, you are not required to infer intent from the defendant's alleged conduct, but it is an inference you may draw if you find it is reasonable and logical and in accordance with my instructions on circumstantial evidence. "The second element is that the defendant, acting with the intent to cause the death of another person, caused the death of Kerry . Foster. This means that the defendant's conduct was the proximate cause of the decedent's death. You must find it proved beyond a reasonable doubt that Kerry Foster . died as a result of the actions of the defendant. Please refer to the earlier instructions concerning proximate cause. "Now, summary of murder. In summary, to establish the offense of murder, the state must prove beyond a reasonable doubt: one, the defendant intended to cause the death of another person, and two, in accordance with that intent, the defendant cause[d] the death of Kerry Foster." Then, on the particular charge of accessory to murder, the court instructed the jury in relevant part: "I have provided the elements of the crime of murder previously. However, with respect to intent in this particular count, it is not necessary for a conviction of murder that the state prove that the defendant intended to kill Kerry Foster." The court also instructed: "To establish the guilt of a defendant as an accessory . the state must prove criminality of the intent and community of the unlawful purpose. That is, for the defendant to be guilty as an accessory, it must be established that he acted with the mental state necessary to commit murder and that in furtherance of that crime, he oscillated, requested, commanded, importuned, or intentionally aided the principal to commit murder. Evidence of mere presence as an inactive companion, or passive acquiescence, or the doing of innocent acts which, in fact, aid in the commission of a crime, is insufficient to find the defendant guilty as an accessory under the statute." Pursuant to § 53a-8(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." Pursuant to § 53a-54a(a) : "A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person ." (Emphasis added.) "Thus, the statute on its face allows transferred intent for the crime of murder . The clear meaning of the statute leads to the result that, when a person engages in conduct with the intent to kill someone , there can be a separate count of murder for every person actually killed by the conduct ." Emphasis altered.) State v. Courchesne , 296 Conn. 622, 713, 998 A.2d 1 (2010). The facts of this case demonstrate that the defendant and his cohorts drove toward the Nelton Court area determined to kill in retaliation for the death of one of their friends earlier in the day. State v. Davis , supra, 163 Conn.App. at 460-61, 136 A.3d 257. As they saw a group of children standing on a corner, they opened fire, firing more than seventeen bullets toward those children, with no specific victim intended; they just intended to kill someone. Id. We conclude that the court's instructions, tailored to the facts of this case, were correct in law and fit with the evidence presented, namely, that the defendant and his cohorts had no particular victim in mind; they just wanted to engage in a retaliatory killing. The court correctly instructed the jury that it did not have to find that the defendant intended to kill any specific person, only that the defendant intended to kill someone. On the basis of our review of the court's instructions, we conclude that the defendant's claim fails a plain error analysis. There is no error. The judgment is affirmed. In this opinion the other judges concurred. The defendant also was convicted of conspiracy to commit murder in violation of General Statutes § 53a-48(a) and 53a-54a(a), and attempt to commit murder in violation of General Statutes § 53a-49(a)(2) and 53a-54a(a). We upheld those convictions in State v. Davis , 163 Conn.App. 458, 136 A.3d 257 (2016), remanded in part, 325 Conn. 918, 163 A.3d 618 (2017). Additionally, the defendant had been charged with, but acquitted of, accessory to capital felony in violation of General Statutes (Rev. to 2005) § 53a-54b(8) and § 53a-8(a). Pursuant to our Supreme Court's remand order, we consider under the plain error doctrine only the defendant's conviction of accessory to commit murder.

12491025

STATE of Connecticut v. ELMER G.

State v. Elmer G.

2017-09-12

(AC 37596).

749

776

170 A.3d 749

170

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:26.796983+00:00

Fastcase

STATE of Connecticut v. ELMER G.

STATE of Connecticut v. ELMER G. (AC 37596). Appellate Court of Connecticut. Argued May 16, 2017 Officially released September 12, 2017 Pamela S. Nagy, assistant public defender, for the appellant (defendant). Ronald G. Weller, senior assistant state's attorney, with whom, on the brief, were Stephen J. Sedensky III, state's attorney, and Warren C. Murray, supervisory assistant state's attorney, for the appellee (state). Alvord, Prescott and Pellegrino, 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 defendant's full name or to identify the victim or others through whom the victim's identity may be ascertained. See General Statutes § 54-86e.

13995

86268

ALVORD, J. The defendant, Elmer G., appeals from the judgments of conviction, after a jury trial, of two counts of sexual assault in the second degree in violation of General Statutes § 53a-71(a)(1), two counts of risk of injury to a child in violation of General Statutes § 53-21(a)(2), and three counts of criminal violation of a restraining order in violation of General Statutes § 53a-223b. On appeal, the defendant claims that (1) there was insufficient evidence presented at trial to convict him of one of the two counts of sexual assault in the second degree and all three counts of criminal violation of a restraining order, and (2) certain prosecutorial improprieties at trial deprived him of his right to a fair trial. We disagree and, accordingly, affirm the judgments of the trial court. On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. The victim is the defendant's daughter. The victim was born in Guatemala and lived there until July, 2010. In Guatemala, family members raised the victim and four of her siblings (Guatemalan siblings) while their parents, the defendant and A.N., and four younger siblings (American siblings) resided together in Connecticut. The victim remembered meeting the defendant for the first time in 2007, when she was approximately ten years old. During that visit, the defendant began touching the victim in a sexually inappropriate manner. In the summer of 2010, the defendant arranged for two relatives to bring the victim, who was thirteen years old, to Connecticut illegally. Before she left Guatemala, the defendant told her "to get a shot for pregnancy, to avoid pregnancies ." Approximately two weeks after arriving in Connecticut, the defendant resumed his sexual abuse of the victim and compelled her to engage in various sexual acts, including penile-vaginal intercourse and fellatio. In June, 2011, the Department of Children and Families (department) conducted an investigation into allegations that the defendant was physically abusing his son, one of the victim's American brothers. In January, 2012, the department conducted another investigation into domestic violence after the victim's brother told someone at school that the defendant had brandished a knife at home, threatened his mother, A.N., and cut A.N.'s leg with the knife. At about this time, the defendant returned to Guatemala for a planned visit. Because the department was concerned about the well-being of A.N. and her children upon the defendant's return from Guatemala, it helped A.N. secure new housing for herself and her children. When the defendant learned of these events from relatives, he called A.N. to discuss the situation. Because A.N. was fearful of the defendant coming to her new residence when he returned to Connecticut, on March 2, 2012, she applied for and was issued a two week, ex parte restraining order against the defendant, which protected herself and her children in Connecticut. On March 5, 2012, the defendant received in-hand marshal service of the ex parte restraining order. On March 15, 2012, after a hearing, A.N. was issued a six month restraining order (temporary restraining order) against the defendant, which protected herself and her children in Connecticut. While the ex parte restraining order and the temporary restraining order (collectively, restraining orders) were in effect, the defendant continued to communicate with the victim in a manner that violated these orders. After the department became involved with the victim's family in January, 2012, it referred the family to Altagracia Lara, an intensive family preservation clinician with Catholic Charities. During her conversations with the victim, Lara became concerned about the victim's relationship with the defendant and called the victim's pastor, Lourdes Lopez, and encouraged her to talk to the victim. On April 8, 2012, Lopez noticed that the victim was crying after church services and approached her to determine what was wrong. When the victim was not being responsive, Lopez brought the victim into her office, encouraged the victim to tell her what was wrong, and reassured the victim that she could trust her. The victim told Lopez that the defendant was physically and sexually abusing her. Lopez drove the victim home so they could speak with A.N. about her disclosure, and she called Lara, who reported the allegation to the department. The next morning, April 9, 2012, A.N. and Lara brought the victim to the police station to report the sexual abuse. After providing a written statement to the police, the victim was examined by a forensic pediatrician. The pediatrician found "very deep notches" in the victim's hymen, which was consistent with vaginal penetration and, after a second examination, diagnosed the victim with a sexually transmitted infection. The defendant was subsequently charged in two informations, one alleging, inter alia, that he sexually abused the victim, and one alleging that he violated the restraining orders. In the operative sexual assault information, the defendant was charged with three counts of sexual assault in the second degree and three counts of risk of injury to a child. In the operative restraining order information, the defendant was charged with three counts of criminal violation of a restraining order. After a joint trial on both informations, the jury found the defendant guilty of two counts of sexual assault in the second degree, two counts of risk of injury to a child, and three counts of criminal violation of a restraining order. The jury found the defendant not guilty of one count of sexual assault in the second degree and one count of risk of injury to a child. The court sentenced the defendant to a total effective term of forty years of imprisonment, execution suspended after twenty-five years, followed by twenty-five years of probation. This appeal followed. I We begin with the defendant's claim that there was insufficient evidence presented at trial to convict him of one count of sexual assault in the second degree based on fellatio and three counts of criminal violation of a restraining order. We conclude that there was sufficient evidence presented at trial to support all of the defendant's convictions. "The standard of review we apply to a claim of insufficient evidence is well established. In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.... "We note that the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt.... If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt.... "Finally, [a]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [finder of fact], would have resulted in an acquittal.... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [finder of fact's] verdict of guilty." (Internal quotation marks omitted.) State v. Crespo , 317 Conn. 1, 16-17, 115 A.3d 447 (2015). A The defendant first claims that there was insufficient evidence presented at trial to support his conviction of sexual assault in the second degree based on fellatio. In particular, the defendant argues that the state failed to prove that his penis penetrated the victim's mouth because the victim's testimony was too ambiguous concerning whether penetration occurred. We disagree. The following additional facts are relevant to this claim. In count five of the sexual assault information, the state alleged, in relevant part, that "between July, 2010, and January, 2012, the [defendant] engaged in sexual intercourse with another person, [the victim], by having said person perform an act of fellatio upon him ." With respect to the charge of sexual assault in the second degree that was based on fellatio, the state engaged in the following colloquy with the victim: "[The Prosecutor]: And could you just indicate to the ladies and gentlemen of the jury what you remember? "[The Victim]: He asked me to do oral sex. "[The Prosecutor]: And what do you remember about that specific event, if you can just tell the ladies and gentlemen of the jury? "[The Victim]: Always with threats. "[The Prosecutor]: The actual incident itself, could you describe the incident itself, could you describe the incident? "[The Victim]: He made me put my mouth in his penis. "[The Prosecutor]: I'm sorry. Say that again? "[The Victim]: He made me-he forced me to put my mouth on his penis. "[The Prosecutor]: Okay. Did-did he actually penetrate your mouth? "[The Victim]: No. "[The Prosecutor]: What do you mean? How about your lips? "[The Victim]: Yes." "A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and . [s]uch other person is thirteen years of age or older but under sixteen years of age and the actor is more than three years older than such other person ." General Statutes § 53a-71(a)(1). The definition of "sexual intercourse" includes "fellatio . between persons regardless of sex...." General Statutes § 53a-65(2). "Penetration, however slight, is sufficient to complete . fellatio and does not require emission of semen...." General Statutes § 53a-65(2). When analyzing our Penal Code's definition of penetration, our Supreme Court has observed: " 'Penetration' is defined as 'the act or process of penetrating,' and 'penetrate' means 'to pass into or through' or 'to extend into the interior of .' " (Emphasis in original.) State v. Scott , 256 Conn. 517, 532, 779 A.2d 702 (2001). Thus, to prove sexual assault based on fellatio, "it is necessary for the state to establish that the defendant intended to insert his penis into the victim's mouth." (Emphasis in original.) Id., at 533, 779 A.2d 702. Sexual acts that do not involve the defendant's penis entering the victim's mouth, such as the act of licking a penis, are insufficient to prove penetration because licking "involves extending the tongue from the mouth, not inserting the penis into the mouth." (Emphasis in original.) Id. We conclude that the state presented sufficient evidence to prove that the defendant's penis entered into the victim's mouth to some degree, however slight. The victim testified that the defendant "asked [her] to do oral sex," i.e., "he forced [her] to put [her] mouth on his penis," and she responded affirmatively when the prosecutor asked her if, in doing so, the defendant's penis penetrated her lips. On the basis of this testimony, the jury reasonably could have concluded that the victim performed fellatio on the defendant and that during the course of performing fellatio the defendant's penis passed into her mouth. The defendant disagrees, arguing that the victim's testimony that his penis did not penetrate her mouth rendered her testimony concerning penetration too ambiguous as a matter of law to support his conviction. In particular, the defendant relies on State v. Hicks , 319 N.C. 84, 90, 352 S.E.2d 424 (1987). In that North Carolina Supreme Court case, the defendant was charged, inter alia, with a first degree sexual offense on the basis of his alleged anal penetration of the victim. Id., at 89-90, 352 S.E.2d 424. At trial, the only evidence of anal penetration was the seven year old victim's testimony that the defendant " 'put his penis in the back of me.' " Id., at 90, 352 S.E.2d 424. Although a physical examination of the victim "revealed a broken hymen and a genital rash that appeared to be a yeast infection"; id., at 86, 352 S.E.2d 424 ; the examining physician testified that he found no evidence of anal intercourse. Id., at 90, 352 S.E.2d 424. The North Carolina Supreme Court concluded: "Given the ambiguity of [the victim's] testimony as to anal intercourse, and absent corroborative evidence (such as physiological or demonstrative evidence) that anal intercourse occurred, we hold that as a matter of law the evidence was insufficient to support a verdict ." Id. The defendant argues that this case is analogous to Hicks because the victim's negative response to the prosecutor's question about whether "he actually penetrate[d] your mouth" and affirmative response to the prosecutor's question-"How about your lips?"-rendered her testimony concerning penetration too ambiguous as a matter of law to support his conviction. We disagree. The victim, who was testifying with the assistance of a Spanish interpreter, might simply have misunderstood the prosecutor's first question, and her misapprehension might have been apparent in her demeanor, as observed by the jury, when responding to the prosecutor's questions. In reviewing sufficiency of the evidence claims, "[w]e do not sit as a thirteenth juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record.... Rather, we must defer to the jury's assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude." (Internal quotation marks omitted.) State v. Morgan , 274 Conn. 790, 800, 877 A.2d 739 (2005). "It is . the absolute right and responsibility of the jury to weigh conflicting evidence and to determine the credibility of the witnesses.... [T]he [jury] can . decide what-all, none or some-of a witness' testimony to accept or reject.... A trier of fact is free to reject testimony even if it is uncontradicted . and is equally free to reject part of the testimony of a witness even if other parts have been found credible." (Internal quotation marks omitted.) State v. Francione , 136 Conn.App. 302, 311-12, 46 A.3d 219, cert. denied, 306 Conn. 903, 52 A.3d 730 (2012). On the basis of its firsthand observation of the victim's conduct, demeanor, and attitude when answering the prosecutor's questions, the jury reasonably could have construed any ambiguity in the victim's testimony concerning penetration against the defendant. In addition, the state elicited more details from the victim about fellatio than were elicited from the seven year old victim in Hicks about the alleged anal sex. Prior to responding to the prosecutor's questions about penetration, the victim testified that the defendant "asked me to do oral sex" and that "he forced me to put my mouth on his penis." The jurors, on the basis of their common sense and life experiences, could have reasonably inferred that the seventeen year old victim understood what oral sex under these circumstances ordinarily involves, i.e., a man's penis entering someone's mouth. The jurors also reasonably could have inferred that when she stated that she put her mouth on the defendant's penis-in direct response to the prosecutor's request for specific details about the time she performed oral sex on the defendant-that she did more than simply place the lips of her mouth against the defendant's penis. That is, she placed her mouth on the defendant's penis in a manner that caused his penis to enter into her mouth. Accordingly, we conclude that there was sufficient evidence presented at trial to support the defendant's conviction of sexual assault in the second degree based on fellatio. B The defendant next claims that there was insufficient evidence presented at trial to support his conviction of three counts of criminal violation of a restraining order because the state failed to prove (1) that the restraining orders applied to the victim or (2) that he knew the parameters of the restraining orders. The defendant further claims that the state failed to prove that he sent the victim a letter while either of the restraining orders were in effect. The following additional facts are relevant to these claims. The defendant was in Guatemala from January, 2012, into early March, 2012. On March 2, 2012, A.N. was issued an ex parte restraining order against the defendant in anticipation of his imminent return to the United States. The ex parte restraining order identified A.N. as the "Protected Person" and prohibited the defendant from, inter alia, contacting "the protected person in any manner, including by written, electronic or telephone contact ." With respect to the couple's minor children, the ex parte restraining order (1) stated that "[t]his order also protects the protected person's minor children"; (2) awarded temporary custody of the couple's minor children to A.N.; and (3) denied the defendant visitation rights. The order listed the names and birthdays of the couple's five minor children residing in the United States, including the victim. The order also stated that a hearing was scheduled for March 15, 2012, at 9:30 a.m., the same day that the ex parte restraining order expired. The defendant received in-hand marshal service of the ex parte restraining order on March 5, 2012. On March 15, 2012, A.N. was issued a temporary restraining order against the defendant after a hearing. The temporary restraining order identified the protected person as A.N. and prohibited the defendant, inter alia, from contacting "the protected person in any manner, including by written, electronic or telephone contact ." With respect to the couple's minor children, the temporary restraining order stated that (1) "[t]his order also protects the protected person's minor children," and (2) the defendant may have "[w]eekly supervised visits with [the] children." The terms of the temporary restraining order were reviewed with the parties during the temporary restraining order hearing. Specifically, at the temporary restraining order hearing, the defendant was present and represented by Attorney Thomas Wolff. At the beginning of the hearing, the defendant consented to having an employee from the department serve as a Spanish language interpreter. Additionally, Wolff informed the court that he was fluent in Spanish and that he would ensure that his client, the defendant, understood what was being said during the proceeding. Wolff then stated that he and the victim advocate had reviewed the proposed temporary restraining order with the defendant and that they had answered all of the defendant's questions about the proposed order. Wolff represented that the defendant was no longer contesting the temporary restraining order. Thereafter, the court engaged in the following colloquy with the victim advocate: "The Court: I told you what was going to be the tenor of my orders, and I asked you to see if you could work out particulars just so that I don't enter something impractical for the parties. Were you able to do that? "The Victim Advocate: Yes, Your Honor. "The Court: Okay. Why don't you tell me the essence of what you've worked out. "The Victim Advocate: What we've agreed upon is that it would be considered a no contact restraining order. "The Court: As far as mom is concerned? "The Victim Advocate: As far as mom is concerned. "The Court: Right. "The Victim Advocate: Contact with the kids [will ] be limited to weekly supervised visits. "The Court: Contact with minor children weekly, supervised. Yes . "The Victim Advocate: He would like to visit them as soon as possible, so next week would be the only option available. I provided him with the number, and they both agreed on third party contact regarding the children be made through either [S.G.] or [C.T.]." (Emphasis added.) After further discussion concerning the terms of the order, Wolff agreed with the terms of the order as summarized by the victim advocate. He also reminded the court that the order would pertain only to the defendant and A.N.'s children who resided in the United States, and the court agreed that it had no jurisdiction over the children in Guatemala. The court then instructed the defendant as follows: "So, with that in mind, I am going to order a temporary restraining order. Now, as to [A.N.] and the five children, sir, you are not to assault, threaten, abuse, harass, follow, interfere with or stalk. You are to stay away from the home of [A.N.], or wherever she's residing, and you're not to contact her in any manner. As far as the children are concerned, you can have contact with your children, but for now we need it supervised. It's to be weekly and supervised . Any contact that you need to have with your wife, or that your wife needs to have with you, will go through a third party, either [S.G.] or [C.T.]." (Emphasis added.) Thereafter, the defendant began supervised visits with all of his American children except the victim, who refused to attend these visits. The victim testified that the defendant persisted in his attempts to contact her, however, by phone and by sending her messages through her siblings. In the operative restraining order information, the defendant was charged with three counts of criminal violation of a restraining order. Count one alleged, in relevant part: "[The defendant] contacted [the victim] in violation of a restraining order . [The defendant] had knowledge of the restraining order and contacted [the victim] by text message on March 28, 2012 ." Count two alleged, in relevant part: "[The defendant] contacted [the victim] in violation of a restraining order . [The defendant] had knowledge of the restraining order and contacted [the victim] by text message on April 10, 2012 ." Count three alleged, in relevant part: "[The defendant] contacted [the victim] in violation of a restraining order . [The defendant] had knowledge of the restraining order and contacted [the victim] by letter between March 5, 2012, and April 10, 2012 ." At trial, the ex parte restraining order, the temporary restraining order, and a redacted portion of the transcript from the temporary restraining order hearing were entered into evidence. The victim testified that after the restraining orders were issued, the defendant continued to call her and send her text messages on a regular basis but she typically ignored his calls and deleted his text messages. She stated that she specifically recalled receiving a text message from the defendant in March, 2012, because she reported that text message to the police. The victim further explained that she eventually changed her cell phone number in order to avoid the defendant's attempts to contact her. In April, 2012, however, the victim stated that one of her brothers brought her a letter and a new cell phone from the defendant. The victim identified the handwriting in the letter as the defendant's handwriting. She also stated that she received a text message from the defendant on the cell phone that he provided her on April 10, 2012. Lara, the family's intensive family preservation clinician, also testified concerning the defendant's efforts to contact the victim while the temporary restraining order was in effect. Lara stated that on March 28, 2012, she went with the victim to the police station to report a text message the defendant sent the victim earlier that day. In addition, Lara testified that when she went with the victim and A.N. to the police station to report the defendant's sexual abuse on April 9, 2012, they brought the letter that the defendant sent the victim, which she translated from Spanish into English at the police station. In the translated letter, which was admitted into evidence, the defendant references watching the victim leave church and go to "Denis dinner" with her friends. The defendant warns the victim that her church friends are taking advantage of her. He repeatedly pleads with the victim to call him, text message him, or meet with him, and he references providing her with a new cell phone. The defendant also states: "I don't have any issues with you, all the nice things you used to say and now you are saying other things." The defendant proceeds to ask the victim "to forgive me, if you want to be in God's mercy forgive me, and if not go ahead and live with resentment." To convict a defendant of criminal violation of a restraining order, the state must prove beyond a reasonable doubt that a restraining order was issued against the defendant and that the defendant, having knowledge of the terms of the order, contacted a person in violation of the order. General Statutes § 53a-223b(a)(2)(B) ; State v. Carter , 151 Conn.App. 527, 534-35, 95 A.3d 1201 (2014), appeal dismissed, 320 Conn. 564, 132 A.3d 729 (2016) (certification improvidently granted). The defendant claims that the state failed to prove that the restraining orders applied to the victim, that he knew that the restraining orders prohibited him from contacting the victim, and that he sent the victim the letter during the effective periods of the restraining orders. We address each claim in turn. The defendant first claims that the state failed to prove that the restraining orders applied to the victim. We disagree. Although the restraining orders identified A.N. as the protected person, they also stated that the order "protects the protected person's minor children," i.e., the victim and her American siblings. In addition, at the temporary restraining order hearing, the court specifically informed the defendant that, although he could have some contact with his children, that contact was going to be limited to weekly, supervised visits. Viewing this evidence as we must, in a light most favorable to sustaining the verdict, we conclude that there was sufficient evidence presented at trial to prove that the restraining orders prohibited the defendant from contacting the victim outside of their weekly, supervised visits. The defendant next claims that there was no evidence presented at trial that he knew the terms of the restraining orders because they were in English and he speaks Spanish. We conclude that there is sufficient evidence to prove that the defendant knew the terms of the temporary restraining order, and, as a result, there was sufficient evidence presented at trial to support the defendant's conviction of three counts of criminal violation of a restraining order. At the temporary restraining order hearing, Wolff represented that he was fluent in Spanish and that he and the victim advocate had reviewed the terms of the proposed order with the defendant and answered all of his questions concerning its terms. In addition, the court advised the defendant through the agreed upon Spanish language interpreter that his contact with his children would be limited to weekly, supervised visits for the time being. Finally, the fact that the defendant asked the victim's brother to bring her the letter and new cell phone rather than delivering these items to the victim himself suggests that the defendant knew that he could not have contact with the victim outside of their weekly, supervised visits, which the victim was refusing to attend. As a result, the jury reasonably could have concluded that the defendant knew that the temporary restraining order prohibited him from contacting the victim outside of their weekly, supervised visits. It is unclear, however, whether there was sufficient evidence presented at trial to prove beyond a reasonable doubt that the defendant knew that the terms of the ex parte restraining order prohibited him from contacting the victim. On the one hand, the defendant appears to have understood the ex parte restraining order enough to know that he needed to attend the March 15, 2012 hearing; in fact, he brought counsel to that hearing. On the other hand, there was no evidence presented at trial that the defendant, a Guatemalan native, was able to read and write in English. Indeed, throughout the restraining order and criminal proceedings, the defendant required the assistance of a Spanish language interpreter. The defendant's text messages that were entered into evidence were all in Spanish, and the victim testified that the defendant only "knew a little bit" of English. In addition, there was no evidence presented at trial that Wolff or anyone else translated the terms of the ex parte restraining order for the defendant. Nevertheless, even if there were an inadequate evidentiary basis for determining that the defendant knew the terms of the ex parte restraining order, we would still conclude that there was sufficient evidence presented at trial to support the defendant's conviction. Counts one and two of the restraining order information pertain to conduct that occurred during the effective period of the temporary restraining order, not the ex parte restraining order. The conduct alleged in count three does encompass the effective periods of both restraining orders, but there was sufficient evidence presented at trial to prove that the defendant sent and the victim received the letter during the effective period of the temporary restraining order. First, the defendant sent the victim the letter through her brother. The defendant was not authorized to visit his children after the ex parte restraining order was issued and before the temporary restraining order authorized supervised visits. Therefore, the jury reasonably could have concluded that the victim's brother obtained the letter from the defendant during one of their supervised visits after the temporary restraining order was issued. In addition, the victim testified that she received the letter from her brother around April, 2012, and the jury could have reasonably inferred from that that the victim's brother, who lived with the victim, provided the victim with the letter shortly after receiving it. It also was established at trial that, after the temporary restraining order was issued, the victim refused to attend her supervised visits with the defendant and changed her cell phone number to stop the defendant from contacting her. In his letter, the defendant repeatedly pleads with the victim to contact or meet with him, and, with the letter, the defendant sent the victim a new cell phone. The jury reasonably could have inferred that these pleas were in direct response to the victim's refusal to answer his calls and text messages or to attend their supervised visits. Similarly, the jury reasonably could have inferred that the reason the defendant was providing the victim with a new cell phone was that he was presently unable to reach her by phone because he did not have her new cell phone number. Mindful as we are that in determining the sufficiency of the evidence we must consider its cumulative effect and construe the evidence in the light most favorable to sustaining the verdict, we determine that there was sufficient evidence presented at trial to support the defendant's conviction of criminal violation of a restraining order. II We next address the defendant's claims of prosecutorial impropriety. The defendant claims that the prosecutor improperly bolstered the credibility of two state's witnesses on direct examination and redirect examination. The defendant also claims that during closing argument the prosecutor improperly vouched for the credibility of the victim, attempted to create sympathy for the victim and thereby injected extraneous matters into the trial, and referred to facts not in evidence. We review claims of prosecutorial impropriety under a two step analytical process. "We first examine whether prosecutorial impropriety occurred.... Second, if an impropriety exists, we then examine whether it deprived the defendant of his due process right to a fair trial.... In other words, an impropriety is an impropriety, regardless of its ultimate effect on the fairness of the trial. Whether that impropriety was harmful and thus caused or contributed to a due process violation involves a separate and distinct inquiry." (Citations omitted.) State v. Fauci , 282 Conn. 23, 32, 917 A.2d 978 (2007). Specifically, in analyzing harm, "we ask whether the prosecutor's conduct so infected the trial with unfairness as to make the resulting conviction a denial of due process.... We do not, however, focus only on the conduct of the state's attorney. The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial [impropriety]. . "To determine whether . [an] impropriety deprived the defendant of a fair trial, we must examine it under each of the Williams factors. . Specifically, we must determine whether (1) the impropriety was invited by the defense, (2) the impropriety was severe, (3) the impropriety was frequent, (4) the impropriety was central to a critical issue in the case, (5) the impropriety was cured or ameliorated by a specific jury charge, and (6) the state's case against the defendant was weak due to a lack of physical evidence." (Citations omitted; footnote added; internal quotation marks omitted.) Id., at 50-51, 917 A.2d 978. A We begin with the defendant's claims that the prosecutor improperly bolstered the credibility of two state's witnesses on direct examination and redirect examination. The defendant claims that the prosecutor improperly asked the victim on direct examination, "are you making this stuff up," and, "[h]as anybody put you up to testifying the way that you have testified here today in court?" The defendant also claims that the prosecutor improperly asked Pastor Lopez on redirect examination whether she was telling the truth about why she talked to the victim about her relationship with the defendant on April 8, 2012. We conclude that these claims are evidentiary in nature and, therefore, unreviewable under the prosecutorial impropriety framework. The following additional facts are relevant to these claims. The defense's theory of the case at trial was that the victim fabricated the sexual abuse allegations because A.N. had a new boyfriend and wanted to divorce the defendant, because the victim resented the defendant asking her to babysit her younger siblings and to perform household chores, and to obtain "U-Visas" for herself, A.N., and her Guatemalan siblings. At the end of direct examination, the prosecutor engaged in the following colloquy with the victim: "[The Prosecutor]: [A ]re you making this stuff up? "[The Victim]: No. "[The Prosecutor]: Has anybody put you up to testifying the way that you have testified here today in court? "[The Victim]: No. "[The Prosecutor]: In your own words, why are you doing it? "[The Victim]: Because I wanted to get out of the life that I had with him." (Emphasis added.) The following day, Pastor Lopez testified about her relationship with the victim and the victim's disclosure that the defendant was sexually abusing her. On direct examination, Lopez testified that she planned to ask the victim about her home life prior to seeing the victim crying after church on April 8, 2012, because she and her husband were troubled by the victim's behavior. Lopez explained that she specifically chose to approach the victim on April 8, 2012, "[b]ecause I realized that she was very weak, and I felt that that was the right time to talk to her and see if we could help her out." On cross-examination, defense counsel confronted Lopez concerning the reason she decided to talk to the victim about her father. In relevant part, defense counsel engaged in the following colloquy with Lopez: "[Defense Counsel]: And you said this was a decision on your own [i.e., to talk to the victim about her father]? "[Lopez]: Oh, you're just trying to confuse me. "[Defense Counsel]: Do you know a woman named Altagracia-Altagracia Lara? "[Lopez]: Yes. When she called me just to-asking me that, that was a confirmation of what I already observed based on [the victim's] attitude. But that didn't have anything to do with the church.... "[Defense Counsel]: It was Altagracia Lara who asked you to ask [the victim] about if anything was happening with her dad. Isn't that true? "[Lopez]: Yes. "[Defense Counsel]: And that is, in fact, why you asked [the victim] about whether anything was happening with her father. True? "[Lopez]: Yes." On redirect examination, the prosecutor engaged in the following colloquy with Lopez concerning her decision to talk to the victim about her father: "[The Prosecutor]: You were asked a series of questions about a conversation you had with Altagracia Lara. Do you recall those? "[Lopez]: It was just a phone call. "[The Prosecutor]: And Alta [Lara] asked you to do something, didn't she? "[Lopez]: She only said to me that since I was closer to [the victim], probably I should ask her about what was going on with her and her dad. "[The Prosecutor]: So, when you asked [the victim] about what was happening, in your mind, when you asked that question, you had planned to ask that question. Correct? "[Lopez]: Yes. "[The Prosecutor]: And you said earlier you chose that moment because you felt she was weak? "[Lopez]: Yes. "[The Prosecutor]: In addition to Altagracia [Lara] telling you to ask that question, did you have any intention on asking that question yourself? "[Lopez]: Yes. "[The Prosecutor]: Is that the truth? "[Lopez]: Yes.... "[The Prosecutor]: Were you considering asking [the victim] even before Alta [Lara] called you? "[Lopez]: Yes. "[The Prosecutor]: And why was-why were you intending to do that? "[Lopez]: Because of the way [the victim] was behaving." (Emphasis added.) Defense counsel did not object to any of those questions. On appeal, the defendant claims that the three emphasized aforementioned questions constituted improper attempts by the prosecutor to bolster the credibility of his witnesses. "Evidence accrediting or supporting a witness's honesty or integrity is not admissible until after the witness's credibility has first been attacked." C. Tait & E. Prescott, Connecticut Evidence (5th Ed. 2014) § 6.27.2 (a), p. 380; accord State v. Suckley , 26 Conn.App. 65, 72, 597 A.2d 1285, cert. denied, 221 Conn. 901, 600 A.2d 1028 (1991) ; see also Conn. Code Evid. § 6-6(a) and 6-11(b). Once the credibility of a witness has been attacked on cross-examination, however, a party is permitted to rehabilitate that witness' credibility during redirect examination. Relying on these evidentiary principles and our holdings in State v. Juan V. , 109 Conn.App. 431, 441, 951 A.2d 651, cert. denied, 289 Conn. 931, 958 A.2d 161 (2008), and State v. Albino , 130 Conn.App. 745, 774-75, 24 A.3d 602 (2011), aff'd on other grounds, 312 Conn. 763, 97 A.3d 478 (2014), the defendant argues that the disputed questions rose to the level of prosecutorial impropriety. Whether these claims constitute unpreserved evidentiary claims or reviewable claims of prosecutorial impropriety bears scrutiny. In State v. Juan V. , supra, 109 Conn.App. at 440, 951 A.2d 651, the defendant claimed that the trial court abused its discretion when it allowed the prosecutor, over his objection, to ask the four year old victim-" 'Did you know you were supposed to tell the truth to [the forensic interviewer]?' "-because this question constituted an impermissible attempt by the state to bolster the victim's credibility before the defense put it at issue on cross-examination. Id., at 440-41, 951 A.2d 651. We rejected the defendant's evidentiary claim, holding that "it is reasonable to conclude that the state was attempting to lay a proper foundation for admissibility of the videotape [of the victim's forensic interview]. Shortly after the court permitted the question at issue, the state concluded its direct examination of [the victim] and informed the court that it was going to seek to introduce portions of the videotaped interview under the Whelan and the past recollection recorded exceptions to the rule against hearsay. Both of these exceptions to the rule against hearsay require the moving party to show that the out-of-court statements were reliable. Consequently, it was reasonable for the court to conclude that the state's question was not intended to bolster the veracity of [the victim] but, instead, was part of the state's effort to lay the requisite foundation for admissibility of the videotaped interview." (Footnotes altered.) Id. In State v. Albino , supra, 130 Conn.App. at 774-75, 24 A.3d 602, we addressed several claims of prosecutorial impropriety, including whether the prosecutor improperly bolstered the credibility of three state's witnesses by asking them if they were telling the truth or if they were prepared to tell the truth on direct examination and on redirect examination. After reviewing the aforementioned evidentiary principles and our holding in Juan V. , we stated in Albino : "Our review of these questions leads us to the conclusion that the prosecutor improperly attempted to bolster the credibility of several of the state's witnesses." Id., at 775, 24 A.3d 602. We did not analyze further the role that each witness played in that case or whether their credibility was, or was likely to be, attacked on cross-examination. Indeed, Albino contains no analysis of why the prosecutor's questions rose to the level of prosecutorial impropriety, even though the defendant did not object to them at trial and two of the disputed questions occurred on redirect examination. Because Juan V. was addressing an evidentiary claim, not a claim of prosecutorial impropriety, our reliance on that case in Albino is problematic. It is well established "that [a]lthough . unpreserved claims of prosecutorial impropriety are to be reviewed under the Williams factors, that rule does not pertain to mere evidentiary claims masquerading as constitutional violations.... Evidentiary claims do not merit review pursuant to [State v. ] Golding [213 Conn. 233, 567 A.2d 823 (1989) ]... because they are not of constitutional magnitude. [R]obing garden variety [evidentiary] claims . in the majestic garb of constitutional claims does not make such claims constitutional in nature.... Putting a constitutional tag on a nonconstitutional claim will no more change its essential character than calling a bull a cow will change its gender." (Internal quotation marks omitted.) State v. Alex B. , 150 Conn.App. 584, 589, 90 A.3d 1078, cert. denied, 312 Conn. 924, 94 A.3d 1202 (2014) ; accord State v. Elias V. , 168 Conn.App. 321, 341-44, 147 A.3d 1102, cert. denied, 323 Conn. 938, 151 A.3d 386 (2016) ; State v. Devito , 159 Conn.App. 560, 574, 124 A.3d 14, cert. denied, 319 Conn. 947, 125 A.3d 1012 (2015) ; State v. Cromety , 102 Conn.App. 425, 431, 925 A.2d 1133, cert. denied, 284 Conn. 912, 931 A.2d 932 (2007) ; see State v. Rowe , 279 Conn. 139, 151-52, 900 A.2d 1276 (2006). Stated simply, "a defendant may not transform an unpreserved evidentiary claim into one of prosecutorial impropriety to obtain review of that claim ." (Internal quotation marks omitted.) State v. Devito , supra, at 574, 124 A.3d 14. Albino did not analyze whether or why the defendant's claim was not, in fact, an attempt to transform an unpreserved evidentiary claim into one of prosecutorial impropriety to obtain review of that claim. As a result, we conclude that Albino does not control because we conclude that the defendant in the present case is attempting to transform his unpreserved evidentiary claims, challenging the admission of testimony, into constitutional claims of prosecutorial impropriety. Consistent with our well established precedent, we decline to review such unpreserved evidentiary claims under the prosecutorial impropriety framework. B We next address the defendant's claims that during closing argument the prosecutor improperly vouched for the credibility of the victim, attempted to create sympathy for the victim and thereby inject extraneous matters into the trial, and referred to facts not in evidence. We conclude that no improprieties occurred during closing argument. The following additional facts are relevant to these claims. During closing argument, both parties focused on the victim's credibility and motivation in making these allegations. In relevant part, the prosecutor made the following remarks during his opening argument, the emphasized portions of which the defendant now challenges: "So, I'm making the argument to you that the attacks on her credibility fall flat. And this creates a problem for the defense. What it does is sort of this, you have this original statement by her, this story which is a compelling story. And then you look to undermine it. And when you look to undermine it what you find out is that the attacks don't really hold much weight. So we engage this thought exercise assuming that he's-that she's dishonest but we find out she's really not based upon her analysis of the evidence. "So the failure of those-the failure of-we can sort of rule out dishonesty. We've sort of done that. The fabrications-what I'm trying to say is that if we can rule out dishonesty and we can rule out all of those things this sort of strengthening her claim that this [is] a true claim, because that's the only thing that's left. There's an old problem-solving rule it's called Occam's razor, but what it says is, when you have competing hypotheses to try to explain something the simplest explanation is always the best. Why complicate it, why not take [the victim's] words at their face value? She is saying that she is the victim of incest because she was the victim of incest. It's not complicated, it's simple. It is just what it appears to be. We don't have to engage in these convoluted attacks on her credibility in order to establish the basic premise. "Consider this, if a young girl such as [the victim ] wanted to fabricate a lie, is this the lie they would fabricate? I would submit to you that there is no young girl that wants to fabricate an untruth of this extent and this magnitude. Incest is an issue of the utmost indiscernible), and I'd ask you to give it your due consideration; but don't complicate it, see it as simply as the evidence shows that [the victim] seat it-saw it.... "Just in conclusion, ladies and gentlemen, I-remember what the judge says about credibility. You [have ] seen how a young woman who makes up a claim of sexual assault kind of has to come through and run the legal gauntlet. Even the members of her family can testify against her. But I think the evidence shows you that [the victim's] testimony has endured, it's remained intact in the core. When the defense was questioning [the victim], and this is important, when they questioned her, and they cross-examined her for [a] long time, they asked her not one question about the events in this house. You got to ask yourself, why did they do that? "I would submit to you and I would construct the argument that they knew to stay away from that information because that information is radioactive. Once they got into that information, you would see her break down and that's why they stayed away from it. So, what do you do? You do what they did, you attack on the periphery, death by a thousand cuts, death by a thousand suggestions. I would submit to you that these assaults were real. I think the core of her testimony remains intact. She told the story [to] Lourdes Lopez. She told it to her mom. She told it to the police. She told it to Dr. Veronica [Ron-Priola, a forensic pediatrician]. She told it to Julia Jiminez [the victim's school guidance counselor], and she told it to this jury. "Remember what she's had to do. She's went through counseling. She's went through medical exams. She's went through interviews. She's went through court appearances. And she's gone through cross-examination. And after all that, I am arguing to you that this evidence shows she's not fabricating these things. Defense focused on all of the supposed reasons she's fabricating these claims except for one. There's one they left out. And [the victim ] was asked about this, she was asked, [the victim ], she was sort of asked, you know, why are you saying these things about your father. And here's what she said, 'I had to get out of the life I had with him.' If you were in her position would you feel the same way? This is exactly what a person would say that was in this position. "I want to just thank you for your attention. And I, remember-I want you to sort of fix in your mind the image of [the victim] and the type of person she was, and the credibility she ejected as a human being. And I want you to fix that in your mind and think about what the judge has to say about the credibility. And while you're reflecting on her as a young lady, I want you to consider her honesty as it appears through her testimony and the way she testified." (Emphasis added.) Defense counsel began his closing remarks by returning to his theme that the victim fabricated these allegations because A.N. had a new boyfriend and wanted to divorce the defendant, because the victim resented the defendant asking her to babysit her younger siblings and to perform household chores, and to obtain U-Visas for herself, A.N., and her Guatemalan siblings. Defense counsel also argued extensively about why, on the basis of the evidence presented at trial, the jury should not credit the testimony of the victim and other state's witnesses. During rebuttal argument, the prosecutor briefly responded to various points made by defense counsel. He then concluded his argument by making the following remark, the emphasized portion of which the defendant now challenges: "Fabrication, this is how it works; once again, we get right back to the ultimate issue is, are they [the victim and A.N.] telling the truth or are they fabricating this? I would argue to you that they were truthful when they testified here. Thank you, ladies and gentlemen." (Emphasis added.) "[P]rosecutorial [impropriety] of a constitutional magnitude can occur in the course of closing arguments.... [B]ecause closing arguments often have a rough and tumble quality about them, some leeway must be afforded to the advocates in offering arguments to the jury in final argument. [I]n addressing the jury, [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument." (Internal quotation marks omitted.) State v. Elias V. , supra, 168 Conn.App. at 347, 147 A.3d 1102. The defendant raises various challenges to the emphasized portions of the prosecutor's closing argument. We address each category of impropriety in turn. 1 The defendant first claims that the prosecutor improperly vouched for the credibility of the victim during closing argument by making the following remarks: (1) the victim "is saying that she is the victim of incest because she was the victim of incest"; (2) "I would submit to you these assaults were real"; (3) "[a]nd while you're reflecting on her testimony as a young lady, I want you to consider her honesty as it appears through her testimony and the way she testified"; and (4) "I would argue to you that they [the victim and A.N.] were truthful when they testified here." The state responds that when these remarks are read in the context of the prosecutor's and defense counsel's entire closing arguments, they are not improper. We agree with the state. "The parameters of the term zealous advocacy are also well settled. The prosecutor may not express his own opinion, directly or indirectly, as to the credibility of the witnesses.... Nor should a prosecutor express his opinion, directly or indirectly, as to the guilt of the defendant.... Such expressions of personal opinion are a form of unsworn and unchecked testimony, and are particularly difficult for the jury to ignore because of the prosecutor's special position.... Moreover, because the jury is aware that the prosecutor has prepared and presented the case and consequently, may have access to matters not in evidence . it is likely to infer that such matters precipitated the personal opinions." (Internal quotation marks omitted.) State v. Warholic , 278 Conn. 354, 363, 897 A.2d 569 (2006). "We have held, however, that [i]t is not improper for the prosecutor to comment [on] the evidence presented at trial and to argue the inferences that the jurors might draw therefrom . We must give the jury the credit of being able to differentiate between argument on the evidence and attempts to persuade them to draw inferences in the state's favor, on one hand, and improper unsworn testimony, with the suggestion of secret knowledge, on the other hand." (Internal quotation marks omitted.) State v. Fauci , supra, 282 Conn. at 36, 917 A.2d 978. Our Supreme Court previously "has concluded that the state may argue that its witnesses testified credibly, if such an argument is based on reasonable inferences drawn from the evidence.... Specifically, the state may argue that a witness has no motive to lie.... In addition, jurors, in deciding cases, 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.... Therefore, it is entirely proper for counsel to appeal to a jury's common sense in closing remarks." (Citations omitted; internal quotation marks omitted.) State v. Warholic , supra, 278 Conn. at 365, 897 A.2d 569. Having reviewed the disputed remarks in the context of the prosecutor's entire closing argument, we conclude that the prosecutor did not improperly express his personal belief or opinion that the victim was credible. During his closing argument, the prosecutor argued in detail why the substance of the victim's testimony, her demeanor on the witness stand, and the sum of the evidence presented at trial supported a finding that the victim was not fabricating these allegations as the defendant suggested. In making these arguments, the prosecutor repeatedly admonished the jurors to listen carefully to the court's instruction on credibility and to rely on their common sense, their life experiences, and the evidence presented at trial when making their credibility determinations. When the disputed remarks are viewed in the context of the prosecutor's entire argument, therefore, it becomes clear that the prosecutor was not expressing his personal opinion about the victim's credibility with these remarks but rather was appealing to the jurors' common sense and inviting them to draw the conclusion on the basis of a rational appraisal of the evidence presented at trial that the victim was not fabricating these allegations. Accordingly, we conclude that the prosecutor did not express an improper personal opinion concerning the victim's credibility. 2 The defendant next challenges three remarks that the prosecutor made during his opening argument that he claims were improper attempts to create sympathy for the victim and thereby inject extraneous matters into the trial. The state responds that "the prosecutor's comments constituted a fair argument to the jury that they should reject the defendant's challenge to the victim's credibility," not to generate sympathy for the victim. We agree with the state. Our Supreme Court "has recognized on numerous occasions that [a] prosecutor may not appeal to the emotions, passions and prejudices of the jurors.... [S]uch appeals should be avoided because they have the effect of diverting the [jurors'] attention from their duty to decide the case on the evidence.... When the prosecutor appeals to emotions, he invites the jury to decide the case, not according to a rational appraisal of the evidence, but on the basis of powerful and irrelevant factors which are likely to skew that appraisal." (Internal quotation marks omitted.) State v. Long , 293 Conn. 31, 54, 975 A.2d 660 (2009). An improper appeal to the jurors' emotions can take the form of "a plea for sympathy for the victim ." Id., at 59, 975 A.2d 660. The defendant first challenges two remarks by the prosecutor that, when assessing the credibility of the victim and her motivation for testifying, the jury should consider the hardships the victim has had to endure since making her allegations. We conclude that these remarks did not constitute an invitation by the prosecutor for the jurors to decide the case on the basis of their emotions. Instead, the prosecutor was asking the jurors to use their common sense to infer that the victim's testimony was more credible because of the hardships she has endured as a result of bringing and maintaining her allegations against the defendant, such as invasive medical examinations and embarrassing conversations with strangers and family members about being sexually assaulted on several occasions by her father. Our Supreme Court has repeatedly recognized that this type of argument is permissible and does not constitute an improper appeal to emotions. E.g., State v. Felix R. , 319 Conn. 1, 10, 124 A.3d 871 (2015) ("statements wherein the prosecutor recounted the difficulties that the victim faced during the investigation and trial" not improper appeals to emotions); State v. Long , supra, 293 Conn. at 48, 975 A.2d 660 ("the comments in which the prosecutor asked the jurors to use their common sense to infer that [the victim's] complaint was more credible because it required her to undergo an uncomfortable medical examination and embarrassing conversations with both her family members and complete strangers, also were proper"); State v. Warholic , supra, 278 Conn. at 377-78, 897 A.2d 569 (asking jurors, particularly male jurors, to assess victim's credibility by recognizing emotional difficulty victim subjected himself to by making allegations of sexual assault not improper appeal to emotions), citing State v. Rose , 353 N.W.2d 565, 568 (Minn. App. 1984) (asking jurors to assess credibility of thirteen year old victim by identifying with difficulty she must have experienced in testifying about sexual assault allegations not improper appeal to emotions), review denied (Minn. September 12, 1984). The defendant also contends that the prosecutor injected extraneous matters into the trial by remarking that "if a young girl such as [the victim] wanted to fabricate a lie, is this the lie they would fabricate? I would submit to you that there is no young girl that wants to fabricate an untruth of this extent and this magnitude." This remark was clearly designed to rebut defense counsel's various theories for why the victim was fabricating her allegations of sexual assault by calling upon the jury to apply its common sense and life experiences when evaluating the victim's credibility. See, e.g., State v. Warholic , supra, 278 Conn. at 365-66, 897 A.2d 569 (asking "jury to consider, in its assessment of [the victim's] credibility, why he would put himself in a position to have to explain to his father that he had performed oral sex on an adult male" constituted proper appeal to jurors' common sense and experience in evaluating victim's testimony). Accordingly, we conclude that this remark was not improper. 3 Finally, the defendant claims that during closing argument the prosecutor improperly referred to facts not in evidence when he stated that the victim told her school guidance counselor, Jiminez, that the defendant sexually abused her because Jiminez never testified at trial. We conclude that the prosecutor did not improperly refer to facts not in evidence during closing argument. The following additional facts are relevant to this claim. Although Jiminez never testified at trial, she was mentioned during the testimony of the victim and Detective Rachael Halas. In particular, during cross-examination, defense counsel engaged in the following colloquy with the victim concerning her allegations of sexual abuse: "[Defense Counsel]: And then on April 8 [2012] is when you reported the allegations to your pastor [Lopez]? "[The Victim]: Yes. "[Defense Counsel]: And on April 9th you reported to a social worker named Altagracia Lara? "[The Victim]: Yes. "[Defense Counsel]: And that same day, April 9th, you provided the police with that notebook handwritten statement? Correct? "[The Victim]: Yes. "[Defense Counsel]: And then on April 13th you go back, and you provide another verbal statement to the police? "[The Victim]: I don't remember that too well. "[Defense Counsel]: Do you remember when your guidance counselor from Danbury High School brought you back to Detective Halas and went over some additional questions? "[The Victim]: Yes. "[Defense Counsel]: And do you remember talking to Mrs. Jiminez, the guidance counselor, in Spanish on that day? "[The Victim]: Yes. "[Defense Counsel]: About the allegations? "[The Victim]: Yes. " (Emphasis added.) The victim explained later in her testimony that the reason she had to provide an additional statement on April 13, 2012, was so that the police had more details about her allegations against the defendant. On direct examination, the prosecutor discussed Jiminez with Detective Halas. In particular, Halas testified that she believed that another officer fluent in Spanish and "Julia Jiminez, from Danbury High School," who is "a school counselor" and fluent in Spanish, assisted Halas in taking A.N.'s statement because Halas was not fluent in Spanish. Halas also confirmed on direct and cross-examination that she asked the victim to provide a supplemental statement on April 13, 2012. She explained that she interviewed the victim through a translator and, with the assistance of that translator, wrote the victim's supplemental statement in English. Halas stated that this second interview lasted approximately one and one-half hours. It is axiomatic that in closing argument parties are permitted to rely on the evidence presented at trial and to argue the reasonable inferences that the jurors might draw therefrom. State v. O'Brien-Veader , 318 Conn. 514, 547, 122 A.3d 555 (2015) ("[i]t is not improper for the prosecutor to comment upon the evidence presented at trial and to argue the inferences that the jurors might draw therefrom" [internal quotation marks omitted] ); State v. Camacho , 282 Conn. 328, 377, 924 A.2d 99 ("[a]s a general matter a prosecutor may use any evidence properly admitted at trial"), cert. denied, 552 U.S. 956, 128 S.Ct. 388, 169 L.Ed.2d 273 (2007) ; State v. Arline , 223 Conn. 52, 58, 612 A.2d 755 (1992) ("[c]ounsel may comment upon facts properly in evidence and upon reasonable inferences to be drawn from them" [emphasis omitted; internal quotation marks omitted] ). Although Jiminez did not testify at trial, it was established through the testimony of the victim and Halas that Jiminez was present for, and indeed served as a translator during, the victim's one and one-half hour interview with Halas on April 13, 2012, during which she provided the police with more details about the defendant's sexual abuse. From that testimony, the jury reasonably could have concluded that the victim "told her story" to Jiminez. Therefore, the prosecutor's reference to Jiminez was based on facts in evidence and not improper. The judgments are affirmed. In this opinion PELLEGRINO, J., concurred. In addition to his nine children with A.N., the defendant has two additional biological children and one adopted child with another woman in Connecticut. The police officer who interviewed the victim also testified that the victim came to the police station on March 28, 2012, that she showed him the text message from the defendant, and that the text message at issue was time-stamped from earlier that day. In April, 2012, the victim's American brothers were between the ages of five and ten, and lived in the same household as her. The victim did not identify which of her brothers delivered the letter. Although the defendant did not object to all of the improprieties claimed on appeal, they are nevertheless reviewable. "We previously have recognized that a claim of prosecutorial impropriety, even in the absence of an objection, has constitutional implications and requires a due process analysis ." (Internal quotation marks omitted.) State v. Gibson, 302 Conn. 653, 658-59, 31 A.3d 346 (2011). See State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987). At trial, evidence was presented that "U-Visas" are visas that are available to victims of criminal activity and their qualifying family members. See State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S.Ct. 597, 93 L.Ed.2d 598 (1986). Before asking the disputed question in Juan V., the prosecutor asked the victim: "And the things that you told [the forensic interviewer], were they true?" (Internal quotation marks omitted.) State v. Juan V., supra, 109 Conn.App. at 439, 951 A.2d 651. The defendant objected, on the ground that the state was improperly attempting to bolster the victim's credibility, and the court agreed to strike the question and the victim's affirmative answer. Id. In dicta in Juan V., we also observed that the disputed question of whether the victim understood that she was supposed to tell the truth during the interview was "readily distinguishable from the impermissible and previously stricken question of whether she was, in fact, telling the truth [during the interview]. The latter is an improper invasion of the province of the jury, as it seeks to bolster [the victim's] credibility before it has come under attack." Id., at 441, 951 A.2d 651. It appears that the prosecutor asked these questions without objection from defense counsel. See State v. Albino, supra, 130 Conn.App. at 774 n.6, 24 A.3d 602 (providing excerpts from the disputed examinations). Although we conducted a due process analysis of the prosecutorial improprieties that occurred at trial, the focus of our due process analysis was on the impact of the prosecutor's repeated and improper use of the words, "victim," "murder," and "murder weapon" during the evidentiary phase of trial and throughout closing argument. State v. Albino, supra, 130 Conn.App. at 759, 24 A.3d 602. Even if we were to conclude that the disputed questions rose to the level of prosecutorial impropriety, considering these improprieties within the framework of the entire trial, and after giving due consideration to the factors identified in State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987), we would still conclude that the defendant was not denied a fair trial, and, therefore, reversal of the defendant's convictions would be unwarranted. First, the defendant challenges the prosecutor's remark: "Remember what she's had to do. She's went through counseling. She's went through medical exams. She's went through interviews. She's went through court appearances. And she's gone through cross-examination. And after all that, I am arguing to you that this evidence shows she's not fabricating these things. Defense focused on all of the supposed reasons she's fabricating these claims except for one. There's one they left out. And [the victim] was asked about this, she was asked, [the victim], she was sort of asked, you know, why are you saying these things about your father. And here's what she said, I had to get out of the life I had with him. If you were in her position, would you feel the same way? This is exactly what a person would say that was in this position." Second, the defendant challenges the prosecutor's argument: "You [have] seen how a young woman who makes up a claim of sexual assault kind of has to come through and run the legal gauntlet. Even the members of her family can testify against her." The defendant appears to argue that the prosecutor's reference to the victim making reports of sexual abuse to Jiminez and Dr. Ron-Priola were improper because it violated the court's constancy of accusation order. We first observe that the court never precluded the admission of constancy of accusation testimony; it merely ordered that such testimony had to be admitted in accordance with our rules on the admissibility of constancy evidence. In addition, the state never offered any constancy evidence. Nonetheless, to the extent that the defendant attempts to raise a separate claim of prosecutorial impropriety on the basis of the prosecutor's purported violation of an evidentiary ruling by the court, we conclude that such a claim is inadequately briefed. See State v. Buhl, 321 Conn. 688, 724, 138 A.3d 868 (2016).

12491007

STATE of Connecticut v. Michael PELELLA

State v. Pelella

2017-10-10

SC 19760.

647

662

170 A.3d 647

170

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

2021-08-27T20:57:26.796983+00:00

Fastcase

STATE of Connecticut v. Michael PELELLA

STATE of Connecticut v. Michael PELELLA SC 19760. Supreme Court of Connecticut. Argued December 5, 2016 Officially released October 10, 2017 Mitchell S. Brody, senior assistant state's attorney, with whom, on the brief, were Stephen J. Sedensky III, state's attorney, and Edward L. Miller, deputy assistant state's attorney, for the appellant (state). Mary Boehlert, assigned counsel, for the appellee (defendant). Palmer, Eveleigh, McDonald, Espinosa and Robinson, Js. Opinion The listing of justices reflects their seniority status on this court as of the date of oral argument.

7691

47344

PALMER, J. The defendant, Michael Pelella, was arrested following an altercation with his brother and charged with two counts of threatening in the second degree, one for threatening to commit a crime of violence with intent to terrorize under General Statutes (Rev. to 2013) § 53a-62 (a) (2), and the other for threatening to commit a crime of violence in reckless disregard of the risk of causing terror under General Statutes (Rev. to 2013) § 53a-62 (a) (3). The defendant subsequently filed a motion to dismiss the charges "for lack of sufficient evidence or cause," and the trial court granted the motion and rendered judgment dismissing the charges, concluding that the state would be unable to demonstrate that the statement by the defendant on which the charges were based constituted a " 'true threat,' " a form of speech that is not protected by the first amendment to the United States constitution. Thereafter, the trial court granted the state's motion for permission to appeal, and the state now claims that the trial court improperly granted the defendant's motion to dismiss after (1) incorrectly determining that an expression of an intent to cause harm to another cannot constitute a true threat unless the contemplated harm is imminent or immediate, and (2) improperly viewing the evidence before it in the light most favorable to the defendant. We agree with both of these contentions, and, therefore, we also agree that the trial court improperly granted the defendant's motion to dismiss the charges. Accordingly, we reverse the judgment of the trial court and remand the case to that court with direction to deny the motion to dismiss. The following facts and procedural history are relevant to this appeal. According to a police report submitted by both parties, on January 20, 2014, police officers responded to 22 Fairlawn Avenue in the city of Danbury to investigate the report of a domestic disturbance at that residence. When they arrived, the officers discovered the thirty-one year old defendant, along with his twenty-two year old brother, Francis Pelella, and their mother, Linda Pelella, all three of whom resided at 22 Fairlawn Avenue. According to all three parties, the disturbance arose out of a disagreement between Francis, who wanted to move into the attic of the house, and the defendant, who had "some of his stuff up there" and objected to the move. The defendant told the officers that, faced with their opposition, Francis became angry and started yelling and cursing. The mother added that Francis "got into her face." Francis, meanwhile, reported to the police that the defendant had told him, " 'if you go into the attic I will hurt you.' " Francis added that he felt threatened and feared for his safety because the defendant had physically harmed him in the past. The defendant and the mother admitted that the defendant had said that he would hurt Francis if he moved into the attic, but both claimed that the defendant had made the statement to the mother, not to Francis. The defendant claimed that he felt he had a right to protect his belongings. Both men attempted to play for the officers recordings that they had made of the encounter. Francis played a video recording on his cell phone that showed Francis standing at the top of a staircase and the defendant and the mother downstairs; the mother's voice could be heard, apparently on the telephone with the police, saying that the defendant had threatened to hurt Francis. Although the defendant also attempted to play for the officers an audio recording of the incident on his computer, the recording was unintelligible. Both the defendant and Francis were arrested for their participation in the altercation, the defendant for threatening and Francis for disorderly conduct. After the state filed a substitute information charging the defendant with two counts of threatening in the second degree, the defendant filed a pretrial motion to dismiss for insufficient evidence or cause pursuant to Practice Book § 41-8(5). In support of his motion, the defendant claimed that the allegedly threatening statement was merely "a spontaneous outburst rooted in his anger and frustration with his brother," and not an unprotected " 'true threat,' " as described by this court in State v. Krijger , 313 Conn. 434, 450, 97 A.3d 946 (2014). See id. (true threat must be "on its face and in the circumstances in which it is made . so unequivocal, unconditional, immediate and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution" [internal quotation marks omitted] ). The defendant argued that the alleged threat was conditional and not subject to an "imminent prospect of execution," and that it was "nonspecific as to what would be done," including whether the threatened response would be physical in nature. He further maintained, incorrectly, that there was "nothing to indicate [that] the threat was made directly to Francis." In opposing the defendant's motion, the state maintained that the defendant's statement fit squarely within the objective standard articulated in Krijger , namely, "whether a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of intent to harm or assault." (Internal quotation marks omitted.) State v. Krijger , supra, 450. In the state's view, the statement was an explicit threat notwithstanding its conditional nature. The state noted that this court had previously found the statement, " '[t]his is for you if you bother me anymore,' " to be a threat. State v. Cook , 287 Conn. 237, 240, 255, 947 A.2d 307 (defendant was simultaneously brandishing table leg), cert. denied, 555 U.S. 970, 129 S.Ct. 464, 172 L.Ed.2d 328 (2008). The state also asserted that Francis' claim that the defendant had hurt him physically in the past removed any ambiguity about the nature of the threat and distinguished the present case from Krijger , in which the defendant's relationship with the alleged victim had previously been "cordial ." State v. Krijger , supra, at 454. After considering the parties' arguments, the trial court issued a memorandum of decision in which it granted the defendant's motion to dismiss. The court commenced its analysis of the defendant's claim by characterizing the issue as whether the state could establish that the defendant's words amounted to a true threat or "were instead either part of a discourse, or were merely words uttered as an 'unplanned [and] spontaneous reaction to the upset and anger [he] felt' . and carried no immediate plan to harm." (Citation omitted.) The court then noted that, under State v. Krijger , supra, 313 Conn. at 460, 97 A.3d 946, "the state must do more than demonstrate that a statement could be interpreted as a threat." (Emphasis in original; internal quotation marks omitted.) Rather, the state must show that "a reasonable listener, familiar with the entire factual context of the defendant's statements, would be highly likely to interpret them as communicating a genuine threat of violence rather than protected expression, however offensive or repugnant." (Internal quotation marks omitted.) The court further explained that the statement at issue was " 'susceptible of varying interpretations, at least one of which [was] nonthreatening,' " and suggested that it may simply have been "an expression of how strongly [the defendant] felt about Francis' plan to move into the attic" or "an appeal to the mother to arbitrate the dispute." In light of the factual context, including the lack of evidence that the defendant approached Francis or took other steps to carry out his threat, the court determined that the state "would be unable to show that a reasonable listener, fully familiar with the facts, would be 'highly likely ' to interpret them as a genuine threat of violence rather than protected expression," as Krijger requires. (Emphasis in original.) The court finally concluded that, because the state would be unable to sustain its burden of establishing that the statement constituted a true threat, the defendant was entitled to a dismissal of the charges. On appeal, the state renews its claim that the defendant's statement bore the necessary hallmarks of an unprotected true threat and that the trial court therefore improperly granted the defendant's motion to dismiss on first amendment grounds. The state contends, first, that the trial court incorrectly interpreted Krijger as requiring that a threat must be imminent to constitute a true threat. According to the state, the purported imminence requirement in Krijger constitutes dictum, runs counter to prior cases of this court that have explicitly relied on the opposite proposition, and ignores the fact that threats may be effective-that is, they may convey a serious intent to cause harm-regardless of whether they will be imminently executed. The state also asserts that the trial court's ruling is flawed because the court improperly viewed the evidence before it in the light most favorable to the defendant and that it should have considered that evidence in the light most favorable to the state. Finally, the state claims that, considering all the relevant circumstances presented to the court in that light, a jury reasonably could find that the defendant's statement constituted an unprotected true threat. The defendant maintains that the trial court did not, in fact, rely on an "imminence requirement" in dismissing the charges and, instead, considered the threats "in light of their entire factual context," noting only that the imminence of the harm "must be considered." (Internal quotation marks omitted.) The defendant further claims that the trial court correctly concluded, upon consideration of the totality of the evidence presented, that the state cannot prove that the defendant's statement was a true threat. Because this appeal challenges the propriety of the trial court's decision to grant the defendant's motion to dismiss, we review de novo the trial court's ultimate determination as to whether the defendant's statement constituted a true threat. Thus, we need not decide whether the court relied on the imminence of the alleged threat in making its determination. Nonetheless, we take this opportunity to clarify the apparent inconsistency in our precedents. We conclude that imminence, at least in the sense of immediacy, is only one factor to be considered in determining whether a statement constitutes a true threat under our law, not a requirement. Our plenary review of the state's claim also makes it unnecessary to determine whether the trial court viewed the evidence in the light most favorable to the defendant. As we explain more fully hereinafter, for purposes of the present case, the proper analytical approach is to evaluate the evidence in the light most favorable to the state. Having considered the evidence in that light, we are persuaded, contrary to the conclusion of the trial court, that a jury reasonably could find that the defendant's statement was an unprotected true threat prohibited by § 53a-62 (a). "The [f]irst [a]mendment [to the United States constitution], applicable to the [s]tates through the [due process clause of the] [f]ourteenth [a]mendment, provides that 'Congress shall make no law . abridging the freedom of speech.' The hallmark of the protection of free speech is to allow 'free trade in ideas'-even ideas that the overwhelming majority of people might find distasteful or discomforting." Virginia v. Black , 538 U.S. 343, 358, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003). "The protections afforded by the [f]irst [a]mendment, however, are not absolute, and . the government may regulate certain categories of expression consistent with the [c]onstitution.... The [f]irst [a]mendment permits restrictions [on] the content of speech in a few limited areas, which are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." (Citation omitted; internal quotation marks omitted.) Id., at 358-59, 123 S.Ct. 1536. True threats comprise one such unprotected category of speech. See, e.g., id., at 359, 123 S.Ct. 1536. "True threats encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.... The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats protect[s] individuals from the fear of violence and from the disruption that fear engenders, in addition to protecting people from the possibility that the threatened violence will occur." (Citations omitted; internal quotation marks omitted.) Id., at 359-60, 123 S.Ct. 1536. As a result, "we must distinguish between true threats, which, because of their lack of communicative value, are not protected by the first amendment, and those statements that seek to communicate a belief or idea, such as political hyperbole or a mere joke, which are protected." State v. DeLoreto , 265 Conn. 145, 155, 827 A.2d 671 (2003). "In the context of a threat of physical violence, [w]hether a particular statement may properly be considered to be a threat is governed by an objective standard-whether a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of intent to harm or assault." (Internal quotation marks omitted.) Id., at 156, 827 A.2d 671. In DeLoreto , we further concluded that a "threat need not be imminent to constitute a constitutionally punishable true threat." Id., at 159, 827 A.2d 671. In one incident described in that case, the defendant, Dante DeLoreto, followed a police officer out of a convenience store and said to the officer, "I'm going to kick your punk ass" and "I'll kick your ass ." (Internal quotation marks omitted.) Id., at 150, 158, 827 A.2d 671. We concluded that the fact that the officer was on duty and armed "[did] not lessen the impact of the threat; it just made it more difficult for [DeLoreto] to carry out his threat immediately." Id., at 158, 827 A.2d 671. "Imminence," we stated, "is not a requirement under the true threats doctrine." Id. Thereafter, in State v. Cook , supra, 287 Conn. at 257, 947 A.2d 307, we reached the same conclusion. In that case, the defendant, Daniel Cook, had been involved in a long-standing dispute with his neighbor, whom he eventually threatened with a wooden table leg, which he waved in the air while stating, " '[t]his is for you if you bother me anymore.' " Id., at 238, 240, 947 A.2d 307. Cook claimed that he was entitled to a judgment of acquittal because the state failed to prove that his threatened use of the table leg "constituted a present threat, rather than a future threat ." Id., at 256, 947 A.2d 307. We rejected the claim, concluding that neither the statute under which Cook was charged nor the true threats doctrine required proof of imminence. Id., at 256-57, 947 A.2d 307. Most recently, in State v. Krijger , supra, 313 Conn. 434, 97 A.3d 946, we reiterated our objective standard for evaluating true threats, that is, whether the statement at issue reasonably would be interpreted as a serious expression of intent to harm, noting that "[a]lleged threats should be considered in light of their entire factual context, including the surrounding events and reaction of the listeners." (Internal quotation marks omitted.) Id., at 450, 97 A.3d 946. We further stated, however, that "[p]rosecution under a statute prohibiting threatening statements is constitutionally permissible [as] long as the threat on its face and in the circumstances in which it is made is so unequivocal, unconditional, immediate and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution . United States v. Malik , 16 F.3d 45, 51 (2d Cir.), cert. denied, 513 U.S. 968, 115 S.Ct. 435, 130 L.Ed.2d 347 1994)." (Emphasis added; internal quotation marks omitted.) State v. Krijger , supra, 450. The state contends that this language is dictum and inconsistent with relevant precedent. To the extent that the challenged language can be read to suggest that a true threat must be subject to immediate execution unburdened by any conditions, we agree with the state. We agree, first of all, that the disputed language in Krijger relating to imminence was not essential to our holding. In that case, the defendant, Stephen Jason Krijger, was involved in an ongoing zoning dispute with the town of Waterford. Id., at 436, 97 A.3d 946. Following a hearing on the matter, Krijger followed the town attorney out of the courtroom, "express[ing] his anger over the town's decision to seek fines [against him] and call[ing] [the attorney] a liar and an asshole." (Internal quotation marks omitted.) Id., at 439, 97 A.3d 946. Upon exiting the courthouse, Krijger "appeared angry; his face was red and there was [saliva] in the corner of his mouth. [Krijger] then stated to [the attorney], [m]ore of what happened to your son is going to happen to you, to which [the attorney] replied, [w]hat did you say? . [Krijger] responded, I'm going to be there to watch it happen." (Internal quotation marks omitted.) Id., at 440, 97 A.3d 946. Krijger's statement alluded to a serious car accident several years earlier that had left the attorney's only son with debilitating injuries. Id., at 440 and n.6, 97 A.3d 946. Krijger was convicted, following a jury trial, of threatening in violation of General Statutes (Rev. to 2007) § 53a-62 (a) (3) and breach of the peace in violation of General Statutes § 53a-181(a)(3), and, following Krijger's appeal, the Appellate Court affirmed the judgment of conviction. See id., at 437, 97 A.3d 946. After granting Krijger's petition for certification to appeal, we held that the defendant's statements did not, on their face, unambiguously constitute true threats; see id., at 452, 97 A.3d 946 ; and that a "more plausible" interpretation was that Krijger "merely was expressing the view that what goes around, comes around ." (Internal quotation marks omitted.) Id., at 456, 97 A.3d 946. We observed that Krijger was "angry, but not physically aggressive"; id., at 456, 97 A.3d 946 ; that the record was devoid of evidence that he had threatened the attorney in the past or was even "capable of carrying out such a threat"; id. ; that Krijger and the attorney previously had had a "long-standing" and "cordial" working relationship; id., at 454, 97 A.3d 946 ; and that Krijger apologized for his behavior to the attorney's associate only moments after the incident. See id., at 457-58, 97 A.3d 946. As a result, we concluded that the state had failed to meet "its burden of removing the ambiguity inherent in [Krijger's] remarks"; id., at 458, 97 A.3d 946 ; in order to demonstrate that they "were anything other than a spontaneous outburst, rooted in [his] anger and frustration"; (emphasis in original) id., at 459, 97 A.3d 946 ; and reversed the judgment of the Appellate Court. Id., at 461, 97 A.3d 946. Thus, rather than simply observing that the state had presented no evidence that Krijger was capable of imminently orchestrating a car accident; id., at 456 n.11, 97 A.3d 946 ; we undertook a thorough, context-specific analysis of the statement, concluding that the threat's lack of immediacy was only one factor in the considerably broader analysis of whether Krijger's statements constituted a true threat. In DeLoreto and Cook , by contrast, our explicit determination that imminence was not a requirement under the true threats doctrine was integral to the outcome of each case. In DeLoreto , we acknowledged that the context made it unlikely that DeLoreto would carry out the threat immediately but found it to be a true threat nonetheless. See State v. DeLoreto , supra, 265 Conn. at 158-59, 827 A.2d 671. In Cook , we rejected Cook's contention that a threat of "future" action at some indeterminate point in time-expressed by the conditional " 'if you bother me anymore' "-could not constitute a true threat. State v. Cook , supra, 287 Conn. at 240, 256-58, 947 A.2d 307. Rather than imminence, at least in the sense of temporal immediacy, the critical consideration in DeLoreto , Cook and Krijger was the seriousness of purpose attributable to each defendant's statement or statements. See State v. Krijger , supra, 313 Conn. at 454-58, 97 A.3d 946 ; State v. Cook , supra, at 255-56, 947 A.2d 307 ; State v. DeLoreto , supra, at 157-59, 827 A.2d 671 ; see also State v. Carter , 141 Conn.App. 377, 401, 61 A.3d 1103 (2013) ("prospective nature" of statements made by hand-cuffed defendant did not necessarily make statements "merely repugnant acts of puffery" rather than true threats), aff'd, 317 Conn. 845, 120 A.3d 1229 (2015). It is doubtful, in fact, that even the Second Circuit Court of Appeals, from which we appropriated the language under consideration, actually requires that a true threat be imminent. In United States v. Kelner , 534 F.2d 1020 (2d Cir.), cert. denied, 429 U.S. 1022, 97 S.Ct. 639, 50 L.Ed. 2d 623 (1976), the original source of the requirement, a concurring judge asserted that "the proposed requirement that the threat be of immediate, imminent and unconditional injury" was dictum and not required by the first amendment. Id., at 1029 (Mulligan, J., concurring); see also United States v. Turner , 720 F.3d 411, 423-24 (2d Cir. 2013) (citing with approval Judge Mulligan's concurrence in Kelner ), cert. denied, - U.S. -, 135 S.Ct. 49, 190 L.Ed.2d 29 (2014) ; cf. Harrell v. State , 297 Ga. 884, 887, 778 S.E.2d 196 (2015) citing Turner for proposition that "[a] 'true threat' may be conditional, need not be explicit, and the threatened violence need not be imminent"). In addition, in United States v. Malik , supra, 16 F.3d 45, the immediate source of the challenged language in Krijger , the Second Circuit did not rely on proof of imminence; rather, it upheld the defendant's conviction "for writing two letters, while incarcerated , that threatened violence ." (Emphasis added.) United States v. Voneida , 337 Fed.Appx. 246, 249 (3d Cir. 2009). This is consistent with the Fifth Circuit's appraisal of Kelner , which equated that case's imminence requirement with "clarity of purpose ." Shackelford v. Shirley , 948 F.2d 935, 939 (5th Cir. 1991). Indeed, logic and reason dictate that a threat-for example, "if you report me to the police, I'll kill your family"-need not be imminent to be outside the protections of the first amendment. Imminence is not a requirement because "a prohibition on true threats protect[s] individuals from the fear of violence and from the disruption that fear engenders, in addition to protecting people from the possibility that the threatened violence will occur." (Internal quotation marks omitted.) Virginia v. Black , supra, 538 U.S. at 360, 123 S.Ct. 1536. Indeed, "[t]hreatening speech . works directly the harms of apprehension and disruption, whether the apparent resolve proves bluster or not and whether the injury is threatened to be immediate or delayed. Further, the social costs of a threat can be heightened rather than dissipated if the threatened injury is promised for some fairly ascertainable time in the future . for then the apprehension and disruption directly caused by the threat will continue for a longer rather than a shorter period." Planned Parenthood of Columbia/Willamette, Inc . v. American Coalition of Life Activists , 290 F.3d 1058, 1107 (9th Cir. 2002) (Berzon, J., dissenting), cert. denied, 539 U.S. 958, 123 S.Ct. 2637, 156 L.Ed.2d 655 (2003). Though relevant, the primary focus of our inquiry is not immediacy but whether the threat "convey[s] a gravity of purpose and likelihood of execution ." (Internal quotation marks omitted.) United States v. Dillard , 795 F.3d 1191, 1199 (10th Cir. 2015) ; see also United States v. Vaksman , 472 Fed.Appx. 447, 449 (9th Cir.) (no requirement of imminent action), cert. denied, 568 U.S. 1056, 133 S.Ct. 777, 184 L.Ed.2d 514 (2012). We next turn to the state's claim that the trial court improperly viewed the evidence before it in the light most favorable to the defendant in granting the motion to dismiss. The state argues, more specifically, that the trial court improperly determined that the evidence was insufficient to prove that the defendant's statement was a true threat because the opposite conclusion was "equally feasible ." The defendant responds that, "[e]ven . if . the trial court should have viewed the evidence underlying the motion to dismiss in a light most favorable to the state, the error would be harmless" because "the state could not demonstrate that a reasonable listener would find the statement to be a genuine threat of violence rather than protected speech." We agree with the state that the trial court was obliged to consider the evidence before it in the light most favorable to the state and, furthermore, that, when the evidence is viewed in such a light, the state may be able to prove at trial that the defendant's statement constituted a true threat. In order to demonstrate the existence of a true threat at trial, "the state must do more than demonstrate that a statement could be interpreted as a threat. When . a statement is susceptible of varying interpretations, at least one of which is nonthreatening, the proper standard to apply is whether an objective listener would readily interpret the statement as a real or true threat; nothing less is sufficient to safeguard the constitutional guarantee of freedom of expression. To meet this standard . the state [is] required to present evidence demonstrating that a reasonable listener, familiar with the entire factual context of the defendant's statements, would be highly likely to interpret them as communicating a genuine threat of violence rather than protected expression, however offensive or repugnant." (Emphasis in original.) State v. Krijger , supra, 313 Conn. at 460, 97 A.3d 946. The standard to be applied in determining whether the state can satisfy this burden in the context of a pretrial motion to dismiss under General Statutes § 54-56 and Practice Book § 41-8(5) is no different from the standard applied to other claims of evidentiary sufficiency. General Statutes § 54-56 provides that "[a]ll courts having jurisdiction of criminal cases shall at all times have jurisdiction and control over informations and criminal cases pending therein and may, at any time, upon motion by the defendant, dismiss any information and order such defendant discharged if, in the opinion of the court, there is not sufficient evidence or cause to justify the bringing or continuing of such information or the placing of the person accused therein on trial." "When assessing whether the state has sufficient evidence to show probable cause to support continuing prosecution [following a motion to dismiss under § 54-56 ], the court must view the proffered proof, and draw reasonable inferences from that proof, in the light most favorable to the state. State v. Kinchen , 243 Conn. 690, 702, 707 A.2d 1255 (1998) ; State v. Morrill , 193 Conn. 602, 611, 478 A.2d 994 (1984). The quantum of evidence necessary to [overcome a motion to dismiss] . is less than the quantum necessary to establish proof beyond a reasonable doubt at trial . In [ruling on the defendant's motion to dismiss], the court [must] determine whether the [state's] evidence would warrant a person of reasonable caution to believe that the [defendant had] committed the crime.... State v. Patterson , 213 Conn. 708, 720, 570 A.2d 174 (1990)." (Internal quotation marks omitted.) State v. Cyr , 291 Conn. 49, 55-56, 967 A.2d 32 (2009). Thus, the trial court must ask whether the evidence would allow a person of reasonable caution, viewing the evidence presented in the light most favorable to the state , to believe that the statement at issue was highly likely to be perceived by a reasonable person as a serious threat of physical harm. If that evidence would support such a finding-regardless of whether it might also support a different conclusion-then the motion to dismiss must be denied. With these principles in mind, we consider the merits of the state's claim, turning first to the language of the defendant's allegedly unlawful statement. According to Francis, the defendant told him, " 'if you go into the attic I will hurt you." As the trial court recognized, such words are "clearly capable of being a true threat ." Indeed, unlike the precatory statements at issue in Krijger -for example, " 'I'm going to be there [when you get hurt]' "; State v. Krijger , supra, 313 Conn. at 440, 97 A.3d 946 ; the statement in the present case unambiguously communicated not a wish but an ultimatum. Nonetheless, the defendant and his mother claimed that the defendant's statement about hurting Francis was made not to Francis directly but to the mother. See United States v. Dinwiddie , 76 F.3d 913, 925 (8th Cir.) (considering "whether the threat was communicated directly to [the] victim"), cert. denied, 519 U.S. 1043, 117 S.Ct. 613, 136 L.Ed.2d 538 (1996). As a result, the trial court in the present case determined that, although the statement "might have been made with the purpose that [Francis] would hear it and be afraid, the method of delivery equally supports the thesis that the statement was not a true threat but a communication of just how important the issue was to the defendant. It might even have been an appeal to the mother to arbitrate the dispute." (Emphasis in original.) Viewing the evidence in the light most favorable to the state, however, we are required to credit Francis' account-that the defendant made the statement directly to Francis. Considered in that light, the defendant's statement appears less like an entreaty to his mother than the expression of an intention to harm Francis. We must also consider the parties' prior relationship. See State v. Krijger , supra, 313 Conn. at 454, 97 A.3d 946 ("[w]hen the alleged threat is made in the context of an existing or increasingly hostile relationship, courts are more apt to conclude that an objectively reasonable speaker would expect that the statement would be perceived by the listener as a genuine threat"). In this case, police officers were called to the scene of the dispute, a location to which they previously had responded "numerous times," and Francis told officers at the scene that the defendant's statement had caused him to fear for his safety because the defendant had physically hurt him in the past. At a hearing on his disorderly conduct charges, Francis later stated that he hoped "that, in other cases, similar to mine, there's more investigation into the civility of the household, as a whole, and the person doing all the antagonizing, like who it really is." His attorney confirmed that "[i]t's a difficult family situation ." Viewed in the light most favorable to the state, therefore, we are bound to conclude that at least one previous encounter between the defendant and his brother was physical in nature and sufficiently serious to cause Francis to fear for his safety if he crossed the defendant. This context significantly increases the likelihood that an objective listener would perceive the defendant's statement as a serious threat to perpetrate physical harm. The immediate circumstances surrounding the defendant's statement, including Francis' reaction, are also relevant. See State v. Krijger , supra, 313 Conn. at 454, 97 A.3d 946. It is true, as the trial court observed, that Francis neither fled nor called the police, opting instead to record the encounter. Nor is there any evidence that the defendant approached Francis or otherwise physically engaged him during the altercation. Nonetheless, the very fact that the defendant's mother, who was intimately familiar with the history between the brothers, found it necessary to call the police to the scene, and could be heard on the phone saying that the defendant had threatened Francis, suggests that the defendant's mother believed that the threat might imminently result in physical harm. In any event, as we have explained, the mere possibility that a threat will not be executed immediately does not resolve whether it constitutes a true threat . See, e.g., State v. DeLoreto , supra, 265 Conn. at 159, 827 A.2d 671 ; see also State v. Cook , supra, 287 Conn. at 255, 947 A.2d 307 (statement may have constituted true threat even though victim's reaction to defendant's conduct, despite their volatile history, "suggest[ed] that he was not genuinely concerned for his safety"). Irrespective of the threat's "imminence," the first amendment was not intended to protect speech lacking in any communicative purpose other than to prevent others from doing what they have a lawful right to do. See Shackelford v. Shirley , supra, 948 F.2d at 938 ("The notion that some expression may be regulated consistent with the first amendment . starts with the already familiar proposition that expression has special value only in the context of dialogue: communication in which the participants seek to persuade, or are persuaded; communication [that] is about changing or maintaining beliefs, or taking or refusing to take action on the basis of one's beliefs . It is not plausible to uphold the right to use words as projectiles [when] no exchange of views is involved." [Internal quotation marks omitted.] ), quoting L. Tribe, American Constitutional Law (2d Ed. 1988) § 12-8, pp. 836-37; see also In re M.S. , 10 Cal.4th 698, 714, 896 P.2d 1365, 42 Cal.Rptr.2d 355 (1995) ("Violence and threats of violence . fall outside the protection of the [f]irst [a]mendment because they coerce by unlawful conduct , rather than persuade by expression, and thus play no part in the 'marketplace of ideas.' . As long as the threat reasonably appears to be a serious expression of intention to inflict bodily harm . and its circumstances are such that there is a reasonable tendency to produce in the victim a fear the threat will be carried out . the fact [that] the threat may be contingent on some future event [e.g., 'If you don't move out of the neighborhood by Sunday, I'll kill you'] does not cloak it in constitutional protection." [Citations omitted; emphasis in original.] ). The limited facts in the record make for a very close case. On the one hand, we are committed to "ensur[ing] that only serious expressions of an intention to commit an act of unlawful violence are punished ." (Emphasis in original.) State v. Krijger , supra, 313 Conn. at 460, 97 A.3d 946. On the other hand, "[when] there is sufficient evidence to support a reasonable inference that the defendant intended to commit the crime charged, whether such an inference should be drawn is properly a question for the jury to decide." State v. Morrill , supra, 193 Conn. at 609, 478 A.2d 994 ; see also United States v. Dillard , supra, 795 F.3d at 1199 ("If there is no question that a defendant's speech is protected by the [f]irst [a]mendment, the court may dismiss the charge as a matter of law.... But, [in the absence of] an unusual set of facts, the question whether statements amount to true threats is a question generally best left to a jury." [Citation omitted; internal quotation marks omitted.] ). The present case, unlike Krijger , involves a direct threat of harm arising out of the context of a difficult family relationship and prior use of physical force on the part of the defendant. In light of the mother's apparent concern, and viewing the evidence in the light most favorable to the state, we cannot say that the state, following a trial, would be unable to convince a person of reasonable caution that the defendant's statement was "highly likely" to be perceived as a serious expression of an intent to harm. State v. Krijger , supra, 460. Rather, we believe that the issue is one that is properly left for a jury to decide. See, e.g., State v. Cook , supra, 287 Conn. at 255-56, 947 A.2d 307 (concluding that, when evidence could equally support finding that statement was true threat or finding that it was "mere puffery," evidence was sufficient for jury to determine whether statement constituted true threat). We emphasize, however, that the facts and inferences most favorable to the state may not be borne out at trial, and we express no view as to whether the defendant's statement would, following an independent review of a full trial record, constitute a true threat. The judgment is reversed and the case is remanded with direction to deny the defendant's motion to dismiss and for further proceedings according to law. In this opinion the other justices concurred. General Statutes (Rev. to 2013) § 53a-62 (a) provides in relevant part: "A person is guilty of threatening in the second degree when . (2) such person threatens to commit any crime of violence with the intent to terrorize another person, or (3) such person threatens to commit such crime of violence in reckless disregard of the risk of causing such terror." Hereinafter, all references to § 53a-62 are to the 2013 revision unless otherwise noted. As we discuss more fully hereinafter, a "true threat" is "a serious expression of an intent to commit an act of unlawful violence against another"; (internal quotation marks omitted) State v. Cook, 287 Conn. 237, 239, 947 A.2d 307, cert. denied, 555 U.S. 970, 129 S.Ct. 464, 172 L.Ed.2d 328 (2008) ; and is not protected by the first amendment. The state, on the granting of permission, appealed to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199(c) and Practice Book § 65-1. The defendant claimed that the mother also objected to the move. Francis subsequently pleaded guilty to the charge of disorderly conduct and received an unconditional discharge, but his arrest and conviction also constituted a parole violation for which, along with other parole violations, he was sentenced to five months of incarceration. Practice Book § 41-8 provides in relevant part: "The following defenses or objections, if capable of determination without a trial of the general issue, shall, if made prior to trial, be raised by a motion to dismiss the information: "(5) Insufficiency of evidence or cause to justify the bringing or continuing of such information or the placing of the defendant on trial ." As we discuss more fully hereinafter, General Statutes § 54-56 also provides for a pretrial motion to dismiss on grounds of evidentiary insufficiency in language nearly identical to that in Practice Book § 41-8(5). Upon agreement of the parties, the trial court based its decision on a limited record, which, in its entirety, consisted of a police report concerning the January 20, 2014 incident and the transcript of a hearing regarding Francis' charges for disorderly conduct and violation of probation. In Krijger, we stated that, "[w]hen . a statement is susceptible of varying interpretations, at least one of which is nonthreatening, the proper standard to apply is whether an objective listener would readily interpret the statement as a real or true threat ." (Emphasis added.) State v. Krijger, supra, 313 Conn. at 460, 97 A.3d 946. We acknowledge, however, that there is a split of authority as to whether the proper standard involves an objective listener or an objective speaker; see, e.g., United States v. Saunders, 166 F.3d 907, 913 n.6 (7th Cir. 1999) ; and, in fact, this court has previously used language suggesting that the proper test contemplates the perspective of an objective speaker. See, e.g., State v. DeLoreto, 265 Conn. 145, 156, 827 A.2d 671 (2003) ("[w]hether a particular statement may properly be considered to be a threat is governed by an objective standard-whether a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of intent to harm or assault" [internal quotation marks omitted] ). Because that issue has not been raised in this case, however, we do not address it. "A motion to dismiss . properly attacks the jurisdiction of the court, essentially asserting that the [state] cannot as a matter of law and fact state a cause of action that should be heard by the court . Accordingly, [o]ur review of the trial court's ultimate legal conclusion and resulting [decision to grant] . the motion to dismiss will be de novo." (Citation omitted; internal quotation marks omitted.) State v. Cyr, 291 Conn. 49, 56, 967 A.2d 32 (2009). We note, as well, that the trial court was not required to make any credibility or other factual findings for purposes of ruling on the motion to dismiss. See footnote 7 of this opinion. The trial court in the present case uses "imminent" interchangeably with "immediate," as have certain decisions of this court. See, e.g., State v. Cook, supra, 287 Conn. at 256-57, 947 A.2d 307 ; State v. DeLoreto, 265 Conn. 145, 158-59, 827 A.2d 671 (2003). Although "imminence" may also be used to convey a sense of inevitability uncoupled from temporal proximity; see Webster's Third New International Dictionary (2002) p. 1130 (defining "imminent" as both "ready to take place" and "hanging threateningly over one's head"); we use the term in this opinion as we did in DeLoreto and Cook, that is, as tending to suggest that the threat will be executed immediately. Subsequently, in State v. Moulton, 310 Conn. 337, 78 A.3d 55 (2013), the defendant, Diana L. Moulton, a postal worker, called her place of employment by telephone and stated to an employee: " '[T]he shootings, you know, the shootings [that recently occurred] in California. I know why she [the perpetrator of those shootings] did that. They are doing the same thing to me that they did to her, and I could do that, too.' [Moulton] was referring to an incident that took place approximately five days prior when a postal employee in California shot and killed several postal workers inside the . facility where [the employee] worked." Id., at 343, 78 A.3d 55. In that case, we noted that Moulton had "couched her alleged threat in conditional terms, stating that she ' "could" ' engage in violent conduct similar to that which had occurred several days earlier in California, and that she would be calling back in a few days." Id., at 369 n.26, 78 A.3d 55. We expressly declined, however, to "suggest that [such statements] were not sufficiently direct or immediate" for a jury to determine that they constituted a true threat. Id. Krijger was found not guilty of intentional threatening; instead, he was found guilty under the reckless disregard provision of General Statutes (Rev. to 2007) § 53a-62 (a) (3). State v. Krijger, supra, 313 Conn. at 451, 97 A.3d 946. General Statutes § 53a-181(a) provides in relevant part: "A person is guilty of breach of the peace in the second degree when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, such person . (3) threatens to commit any crime against another person or such other person's property ." State v. Moulton, 310 Conn. 337, 78 A.3d 55 (2013), is consistent with these cases. Although we indicated in Moulton that a true threat must be "direct" and "immediate," the alleged threat at issue was conditional, made over the telephone, and tempered by the promise that Moulton would call back in a few days. Id., at 369 n.26, 78 A.3d 55. Despite this lack of imminence, we declined to hold that the statements were protected as a matter of law. See id., 369 and n.26, 78 A.3d 55. We also clarify that true threats need not be unconditional; cf. State v. Krijger, supra, 313 Conn. at 450, 97 A.3d 946 (true threat must be "so unequivocal, unconditional, immediate and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution" [internal quotation marks omitted] ); a threat may still be a true threat even if it is presented in conditional terms such that the listener can escape from physical violence by fulfilling certain demands or directives. Thus, we agree with the Second Circuit Court of Appeals that "a conditional threat-e.g., 'your money or your life'-is nonetheless a threat ." (Citation omitted.) United States v. Malik, supra, 16 F.3d at 49 ; see United States v. Schneider, 910 F.2d 1569, 1570 (7th Cir. 1990) ("[m]ost threats are conditional; they are designed to accomplish something; the threatener hopes that [he] will accomplish it, so that he won't have to carry out the threats" [emphasis in original] ); see also United States v. Dillard, 795 F.3d 1191, 1200 (10th Cir. 2015) ("[the court's] cases make clear that a statement may constitute a true threat even if it is conditional"); United States v. Clemens, 738 F.3d 1, 8 (1st Cir. 2013) (rejecting requirement that threats be "unequivocal, unconditional, and specific" [internal quotation marks omitted] ); State v. Moulton, 310 Conn. 337, 369 n.26, 78 A.3d 55 (2013) ; (conditional nature of threat would not necessarily prevent it from being considered true threat); State v. Cook, supra, 287 Conn. at 257, 947 A.2d 307 ("a threat, by definition, is an expression of an intent to cause some future harm"). To the extent that a threat's conditionality is relevant, we look to whether the threat nonetheless constitutes a serious expression of intent to harm. Cf. Watts v. United States, 394 U.S. 705, 707, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969) (statement is not true threat when conditioned on event speaker proclaimed would never happen); see also Planned Parenthood of Columbia/Willamette, Inc. v. American Coalition of Life Activists, supra, 290 F.3d 1058, 1111 n.14 (Berzon, J., dissenting) (" '[u]nconditional' refers to the degree of determination contained in the threat, not whether it is 'conditioned' in the sense that the target could avoid the harm by bowing to the speaker's will"). See also Practice Book § 41-8(5) ; footnote 6 of this opinion. Although the trial court found only that the police were called "by the defendant and/or his mother," the police report states that the mother was talking with the police on her cell phone and told them that the defendant threatened Francis. In any event, viewing the evidence in the light most favorable to the state, we assume, for purposes of the motion to dismiss, that the mother called the police.

12491000

LUONGO CONSTRUCTION AND DEVELOPMENT, LLC v. James MACFARLANE

Luongo Constr. v. Macfarlane

2017-09-12

(AC 38185).

57

73

170 A.3d 57

170

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:26.796983+00:00

Fastcase

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

LUONGO CONSTRUCTION AND DEVELOPMENT, LLC v. James MACFARLANE

LUONGO CONSTRUCTION AND DEVELOPMENT, LLC v. James MACFARLANE (AC 38185). Appellate Court of Connecticut. Argued April 17, 2017 Officially released September 12, 2017 Frank P. Cannatelli, for the appellants (plaintiff and counterclaim defendant). Vincent T. McManus, Jr., for the appellee (defendant). DiPentima, C.J., and Lavine and Flynn, Js.

7341

45381

DiPENTIMA, C.J. The plaintiff, Luongo Construction and Development, LLC (Luongo LLC), and the counterclaim defendant, Michael Luongo (Luongo), appeal from the judgment of the trial court rendered in favor of the defendant and counterclaim plaintiff, James MacFarlane (MacFarlane). On appeal, Luongo LLC and Luongo (Luongo parties) claim that the court improperly (1) denied their motions to dismiss, which were based on the prior pending action doctrine, (2) denied their motion for summary judgment and (3) awarded an excessive amount of punitive damages. We disagree and, accordingly, affirm the judgment of the trial court. The following facts and procedural history are necessary to understand the history of this case, which the trial court aptly described as "unnecessarily protracted and convoluted." The proceedings originated in the Middlesex judicial district when Luongo LLC filed an application for a prejudgment remedy against MacFarlane. The court granted the application in the amount of $20,000. The prejudgment attachment was dismissed on June 29, 2012, and Luongo LLC's subsequent efforts to attach MacFarlane's property proved to be unsuccessful. Luongo LLC commenced the present action and filed an amended complaint on August 13, 2013. It alleged that Luongo LLC and MacFarlane had entered into a contract regarding the construction of a modular home. It further claimed that Luongo LLC had performed its obligations under the contract, including the completion of the items contained on a "punch list ." Luongo LLC contended that MacFarlane had failed to pay the balance of $20,000 owed under the terms of the contract. Over the course of several months, MacFarlane cited in Luongo as a counterclaim defendant, filed an answer to the amended complaint and brought a counterclaim against the Luongo parties. In his amended counterclaim, MacFarlane alleged breach of contract, a violation of the New Home Construction Contractors Act, General Statutes § 20-417a et seq., violations of the new home express and implied warranties as set forth in General Statutes § 47-117, 47-118 and 47-121, a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., and a violation of General Statutes § 21-86, and he sought recovery from Luongo, who allegedly was personally in charge of the construction of MacFarlane's home, for negligent and unworkmanlike construction. Following a two day trial, the court issued a memorandum of decision on June 17, 2015, and found the following facts. On November 24, 2010, MacFarlane agreed to pay Luongo LLC $247,915 in exchange for the "delivery and installation" of a modular home with a three car garage. Luongo LLC contracted to perform the work in a substantially workmanlike manner and in accordance with the drawing and specifications provided. MacFarlane called Steven Rocco, an expert with thirty-five years experience as an architect and twenty-five years experience as a builder, as a witness. Rocco inspected the property several times, interviewed MacFarlane, examined photographs taken during the construction, and reviewed the "site assembly handbook" provided by the modular home's manufacturer. In Rocco's opinion, the two steel beams which ran end to end down the center line of the basement had been installed in a "haphazard" manner, and this error compromised the rest of the construction of the home. Rocco further testified that because the steel beams ran uphill to the center column, there was "a very visible ridge down the center of the floor, as well as the opposing slopes of the ceiling in the [basement]. Between the high point in the center, and the exaggerated variances [on] the top of the foundation walls, the wood modular boxes above are subject to twists and turns, which causes the plethora of cracks throughout the house." (Emphasis omitted.) The trial court stated in its memorandum of decision that Rocco "further testified that at the place where the two halves of the modular home meet, the ceiling is visibly sagging and also rotating. [He] further opined that the sagging and rotation of the beams was caused by [Luongo's] failure to bolt the beams or brace them in some other fashion. The torque created by the unbolted beams causes cracks in the house, which will continue to occur unless the beams are bolted." Rocco also indicated that, as a result of the error by Luongo LLC in placing the stairs that connected the cellar and garage, the space to park a vehicle was decreased, and thus, MacFarlane did not receive a three car garage. Rocco also provided his opinions as to how to remedy the various problems in the home. One option was to tear down the home and have a new one installed correctly. Rocco noted a less costly alternative, but this option required, among other things, the removal of all appliances, cabinets, wiring and plumbing in the kitchen, as well as refinishing the subfloor and floor. Further, this would require that the home be vacant for thirty days. The court rejected the claim of the Luongo parties that a check and letter sent by Amy Coppola, who lived with MacFarlane at the time, indicated MacFarlane's satisfaction with the home after the "punch list" had been completed. It further concluded that Luongo LLC had failed to perform its work in accordance with the drawings and specifications provided, as well as in a workmanlike manner. "This court finds that [Luongo LLC] has already been paid far too much for its work and is not entitled to receive its claimed balance of $18,959. Judgment enters on the amended complaint in favor of . MacFarlane." The court then found in favor of MacFarlane on his claim of breach of contract against Luongo LLC as a result of its failure to perform work in a proper, workmanlike manner. It awarded $61,938.43 in damages, which was comprised of the $6072.43 that MacFarlane had paid to repair various items and $55,866, which he will have to spend to repair the defects. The court also awarded consequential damages in the amount of $6000 for room and board costs that MacFarlane will incur during the repairs, as well as $40,000 for the diminution in value of the home even after the repairs have been made. The actual damages, therefore, awarded to MacFarlane totaled $107,938.43. This figure, however, was adjusted by the amount not paid by MacFarlane ($18,959) and the fact that MacFarlane had paid $1200 for blueprints that he never received. The final total of the actual damages awarded for the first count of the counterclaim was $90,179.43. The court further found that, aside from providing MacFarlane with a copy of Luongo LLC's registration certificate, "[t]here was no evidence that [the Luongo parties] complied with the balance of [General Statutes] § 20-417d. Had they done so, then MacFarlane could have had some opportunity to determine something about the qualifications of [the Luongo parties] and determine whether they had ever constructed/installed a modular home before. The violation of § 20-417d is a violation of CUTPA. The fourth count of the counterclaim alleges a violation of CUTPA." Relying on precedent from our Supreme Court, namely, Ulbrich v. Groth , 310 Conn. 375, 78 A.3d 76 (2013), the trial court noted that punitive damages and attorney's fees could be awarded, in the court's discretion, under CUTPA. In considering the propriety of these awards in the present case, the court stated: "Mere negligent workmanship might not justify an award of punitive damages. However, in this case [the Luongo parties] disregarded the modular home manufacturer's instructions and recommended installation methods. . The construction of the house described by . Rocco as 'shocking' combined with the failure to comply with . § 20-417d justify the conclusion that the conduct of Luongo LLC was reckless within the meaning of CUTPA, and that punitive damages should be awarded by the court." The court awarded $15,025 for expert witness fees incurred by MacFarlane, as well as reasonable attorney's fees to be determined at a later date. Additionally, it awarded $150,000 in punitive damages, which, as the court noted, was greater than 1.5 times the actual damages of $90,179.43, but less than double the actual damages. The court also found that Luongo LLC had breached its express warranty, pursuant to § 47-117, and implied warranty, pursuant to § 47-118, but that MacFarlane failed to demonstrate a violation of § 47-121, which creates a warranty when a certificate of occupancy issues. The court then determined that MacFarlane had abandoned his claim regarding § 21-86. With respect to the sixth count of the counterclaim, the court found that Luongo was personally liable. "In this case, Luongo LLC contracted with MacFarlane, but the negligent and inept conduct of . Luongo created the massive defects in the house. There was substantial evidence that Luongo supervised the placing of the beams and most other aspects of the construction on the property." In conclusion, the court rendered judgment in favor of MacFarlane and against the Luongo parties in the amount of $255,204.43 plus subsequently determined attorney's fees. This appeal followed. Additional facts will be set forth as needed. I The Luongo parties first claim that the court improperly denied their two motions to dismiss MacFarlane's counterclaim, which were based on the prior pending action doctrine. They appear to claim that the court failed to review its arguments that the counterclaim should be dismissed pursuant to the prior pending action doctrine and that this failure constituted an abuse of discretion. The following additional facts are necessary for our resolution of this claim. After Luongo LLC filed its application for a prejudgment remedy in Middlesex judicial district, MacFarlane initiated a separate action against Luongo LLC and Apex Homes, the manufacturer of the modular home in the New Haven judicial district. In the Middletown case, MacFarlane filed a motion to dismiss on the basis of the prior pending action doctrine. Specifically, he claimed that the New Haven case had been filed first and involved the same parties and issues as the Middletown case. On December 27, 2012, the court, Morgan, J. , issued a memorandum of decision denying MacFarlane's motion. The court determined that the writ of summons and complaint were served one month earlier in the New Haven action. It further concluded that the New Haven action included a defendant, Apex Homes, Inc., that was not part of the Middletown case and that the claims asserted in each were sufficiently different. Thus, the court exercised its discretion and concluded that the prior pending action doctrine did not warrant the dismissal of the Middletown case. In the New Haven action, MacFarlane filed a motion to cite in Luongo as a defendant. This motion was filed on December 12, 2013. Luongo LLC objected, and the court considered these matters in the context of the prior pending action doctrine. The court, Wilson, J. , issued a memorandum of decision on January 17, 2014, noting that MacFarlane's counterclaim in the Middletown action had been served on Luongo on October 30, 2013. As Luongo had not yet been served in the New Haven action, the court determined that the Middletown action had been commenced first. It further determined that the two actions were virtually alike and, therefore, sustained the objection to MacFarlane's motion to cite in Luongo. We now turn to the two motions to dismiss, filed by the Luongo parties in the Middletown action, that are the subject of this appeal. The Luongo parties filed the first motion to dismiss on December 23, 2013, and sought to have MacFarlane's counterclaim dismissed in its entirety. The Luongo parties argued, inter alia, that the counterclaim should be dismissed because the New Haven action was pending and it involved the same parties. MacFarlane filed his objection on January 7, 2014, arguing that the two cases were different and that Luongo had not yet been cited into the New Haven case. On February 10, 2014, the court, Aurigemma, J. , denied the motion to dismiss with a one sentence order. On May 12, 2015, approximately three weeks after the trial had concluded, but prior to the release of the court's decision on the merits, Luongo LLC again moved to dismiss MacFarlane's counterclaim on the basis of the prior pending action doctrine. This motion was filed more than one year after the New Haven action had been withdrawn by MacFarlane. It argued that MacFarlane had the opportunity to litigate the matters raised in the counterclaim in the New Haven action, as well as a claim that Judge Wilson's decision constituted the law of the case. MacFarlane opposed this motion, arguing in part that it had been filed untimely. On June 22, 2015, Judge Aurigemma issued an order denying the motion on the ground that it should have been raised before the trial was completed. As an initial matter, we set forth the relevant legal principles and our standard of review with respect to claims regarding the prior pending action doctrine. "[T]he prior pending action doctrine permits the court to dismiss a second case that raises issues currently pending before the court. The pendency of a prior suit of the same character, between the same parties, brought to obtain the same end or object, is, at common law, good cause for abatement. It is so, because there cannot be any reason or necessity for bringing the second, and, therefore, it must be oppressive and vexatious. This is a rule of justice and equity, generally applicable, and always, where the two suits are virtually alike, and in the same jurisdiction.... The policy behind the doctrine is to prevent unnecessary litigation that places a burden on crowded court dockets.... "[T]he trial court must determine in the first instance whether the two actions are: (1) exactly alike, i.e., for the same matter, cause and thing, or seeking the same remedy, and in the same jurisdiction; (2) virtually alike, i.e., brought to adjudicate the same underlying rights of the parties, but perhaps seeking different remedies; or (3) insufficiently similar to warrant the doctrine's application. In order to determine whether the actions are virtually alike, we must examine the pleadings . to ascertain whether the actions are brought to adjudicate the same underlying rights of the parties.... The trial court's conclusion on the similarities between the cases is subject to our plenary review.... "Following that initial determination, the court must proceed to a second step. If the court has concluded that the cases are exactly alike or insufficiently similar, the court has no discretion; in the former situation, it must dismiss the second action, and in the latter, it must allow both cases to proceed.... Where actions are virtually, but not exactly alike, however, the trial court exercises discretion in determining whether the circumstances justify dismissal of the second action." (Citation omitted; internal quotation marks omitted.) MacDermid, Inc. v. Cookson Group, PLC , 149 Conn.App. 571, 576-77, 89 A.3d 447, cert. denied, 312 Conn. 914, 93 A.3d 597 (2014) ; see also Bayer v. Showmotion, Inc. , 292 Conn. 381, 395-98, 973 A.2d 1229 (2009) ; Selimoglu v. Phimvongsa , 119 Conn.App. 645, 650 n.4, 989 A.2d 121, cert. denied, 296 Conn. 902, 991 A.2d 1103 (2010). Although the prior pending action doctrine properly is raised via a motion to dismiss, "it does not truly implicate subject matter jurisdiction [and] may not, therefore, as is true in the case of classic subject matter jurisdiction, always be raised at any time." (Internal quotation marks omitted.) Geremia v. Geremia , 159 Conn.App. 751, 762 n.10, 125 A.3d 549 (2015) ; see also 710 Long Ridge Operating Co. II, LLC v. Stebbins , 153 Conn.App. 288, 293-94, 101 A.3d 292 (2014) ; Travelers Casualty & Surety Co. of America v. Caridi , 144 Conn.App. 793, 804 n.9, 73 A.3d 863 (2013). A In light of these principles, we first consider the denial of the motion to dismiss filed on December 23, 2013. The Luongo parties argue that the one sentence denial established that Judge Aurigemma failed to perform the "required legal analysis ." In essence, the Luongo parties ask this court to presume error on the part of Judge Aurigemma. We decline to do so. At the outset, we note that the Luongo parties failed to seek an articulation of the order denying their December 23, 2013 motion to dismiss. In this instance, the court was not required to issue a memorandum of decision setting forth its reasoning as to each claim of law raised by the parties and the factual basis thereof. See Practice Book § 6-1 and 64-1. The Luongo parties, nonetheless, were obligated to provide this court with an adequate record to review their claim pertaining to the denial of the motion to dismiss. See Practice Book § 61-10 (a). Although the court did not state the rationale for its denial of the motion to dismiss, we note that at the time of the filing of this motion, and the court's decision, the parties were not the same in the two actions as a result of the denial of MacFarlane's motion to cite in Luongo in the New Haven case. The Luongo parties ask that we assume that the court failed to apply the proper analytical framework and "abused [its] discretion in simply not entertaining said motion to dismiss ." This request runs afoul of our established law. "Unless the contrary appears in the record, we will presume that the trial court acted properly and considered applicable legal principles." (Internal quotation marks omitted.) Rozbicki v. Gisselbrecht , 155 Conn.App. 371, 379, 110 A.3d 458, cert. denied, 317 Conn. 905, 114 A.3d 1221 (2015) ; see also Sosin v. Sosin , 300 Conn. 205, 244, 14 A.3d 307 (2011) (in absence of articulation, Supreme Court will presume trial court acted properly). Stated slightly differently, this court does not presume error by the trial court where the party challenging the court's ruling failed to satisfy its burden of demonstrating that it was factually or legally untenable. Kindred Nursing Centers East, LLC v. Morin , 125 Conn.App. 165, 174, 7 A.3d 919 (2010). We conclude, therefore, that the court properly denied the December 23, 2013 motion to dismiss the Middletown action, which was based on the prior pending action doctrine. B We next consider the claim regarding the motion to dismiss filed by Luongo LLC on May 12, 2015. Luongo LLC argued that MacFarlane's counterclaims should be dismissed on the basis of the prior pending action doctrine because he "had [a] full opportunity to litigate, and chose not do so," in the New Haven action prior to its withdrawal on April 15, 2014. To be clear on the time line of events, this motion was filed after the conclusion of the trial in the Middletown action, but prior to the release of Judge Aurigemma's decision on the merits. MacFarlane filed his objection to the motion to dismiss on June 23, 2015, five days after Judge Aurigemma issued her memorandum of decision on the merits of the Middletown action. The court denied Luongo LLC's motion to dismiss on June 22, 2015. It concluded that the motion "should have been raised at trial and was filed on May 12, 2015, after the trial was complete." On appeal, Luongo LLC claims that the court "never properly entertained" this motion to dismiss. We conclude that this argument is without merit. As noted previously, the prior pending action doctrine does not truly implicate the subject matter jurisdiction of the trial court and thus may not be raised at any time. 710 Long Ridge Operating Co. II, LLC v. Stebbins , supra, 153 Conn.App. at 294, 101 A.3d 292. Additionally, the policy underlying this doctrine is to relieve the burden of unnecessary litigation. Lodmell v. LaFrance , 154 Conn.App. 329, 333, 107 A.3d 975 (2014), cert. denied, 315 Conn. 921, 107 A.3d 959 (2015). The goal of the doctrine is not served when the second action, i.e., the case filed in New Haven, has been withdrawn and is no longer crowding a busy court docket. See id. Finally, this court has concluded that once a second action has been withdrawn, "there is no action pending to implicate the prior pending action doctrine." 710 Long Ridge Operating Co. II, LLC v. Stebbins , supra, at 293 n.7, 101 A.3d 292 ; see also Kleinman v. Chapnick , 140 Conn.App. 500, 505, 59 A.3d 373 (2013) (doctrine permits court to dismiss second action that raises issues currently pending before court); Stephenson v. Shelton , Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-09-5009876, 2009 WL 2962131, *1 (August 7, 2009) (same). For these reasons, we conclude that the court properly denied the motion to dismiss filed by Luongo LLC on May 12, 2015. II The Luongo parties next claim that the court improperly denied their motion for summary judgment with respect to MacFarlane's counterclaim. Specifically, they argue that the court, Domnarski, J. , failed to properly analyze and consider the claim regarding the applicability of the prior pending action doctrine and that MacFarlane failed to submit evidence that created a genuine issue of material fact. We are not persuaded. On April 14, 2014, the Luongo parties filed a motion for summary judgment pursuant to Practice Book § 17-44 et seq. They argued that no genuine issues of material fact existed and that, on the basis of Judge Wilson's opinion in the New Haven action denying the motion to cite in Luongo, MacFarlane's counterclaim in the Middletown action violated the prior pending action doctrine. Finally, they also raised the defenses of waiver and equitable estoppel. On June 4, 2014, Judge Domnarski issued an order denying the motion for summary judgment. The court stated: "After careful consideration of the briefs and arguments, the court concludes there are genuine issues of material fact pertaining to both the plaintiff's claims against the defendant and the defendant's claims against the plaintiff. These issues revolve around the actions and statements of both the plaintiff and the defendant pertaining to this construction dispute." On June 24, 2014, Luongo LLC filed a motion to reargue and reconsider, which the court denied on July 3, 2014. "The standard of review of motions for summary judgment is well settled. 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." (Internal quotation marks omitted.) Abendroth v. Moffo , 156 Conn.App. 727, 730-31, 114 A.3d 1224, cert. denied, 317 Conn. 911, 116 A.3d 309 (2015). A On appeal, the Luongo parties again assert that the court failed to perform the proper analysis of the claim regarding MacFarlane's counterclaim and the prior pending action doctrine. Judge Domnarski stated that he had considered the arguments of the parties and concluded that genuine issues of material fact existed, precluding him from granting the motion for summary judgment. We disagree, therefore, with the bald assertion offered by the Luongo parties that the court did not consider the claim regarding the prior pending action doctrine. As we noted in part I A of this opinion, we do not presume error on the part of the trial court. See, e.g., Brett Stone Painting & Maintenance, LLC v. New England Bank , 143 Conn.App. 671, 681, 72 A.3d 1121 (2013) ("[i]n Connecticut, our appellate courts do not presume error on the part of the trial court"). Accordingly, we are not persuaded that the court improperly denied the motion for summary judgment filed by Luongo LLC. B The Luongo parties also argue that the court improperly denied their motion for summary judgment, which raised the defenses of waiver and estoppel. Specifically, they contend that MacFarlane failed to submit evidence demonstrating the existence of a genuine issue of material fact, and therefore, the court should have granted their motion for summary judgment. We are not persuaded. In the motion for summary judgment, Luongo LLC argued that Coppola had sent a letter detailing a "punch list" of items that needed to be completed, along with a check for $20,000. This document also requested that Luongo provide a final balance. Luongo LLC also submitted a letter dated August 1, 2011, that informed MacFarlane and Coppola that the final balance owed was $18,959. Luongo LLC also attached an affidavit from Luongo in which he claimed that he had made the repairs indicated on the "punch list," and that MacFarlane had "sign[ed] off" on the repairs. Luongo further indicated that upon completing the requests on the "punch list," he had completed the contract and was entitled to the balance of $18,959. As a result, Luongo claimed that any claims not contained in the "punch list" were waived and that MacFarlane was estopped from pursuing an action. The Luongo parties assume that the burden of establishing that there was no genuine issue of material fact with respect to waiver and estoppel had been met. They then contend that MacFarlane did not provide any evidence that created a genuine issue of material fact; thus, the Luongo parties were entitled to summary judgment. We reject this argument for two reasons. First, the court did not determine that the Luongo parties had, in fact, met their burden of demonstrating the absence of a genuine issue of material fact with respect to waiver and estoppel. As stated in the order, the court considered the briefs and arguments of the parties and concluded that genuine issues of material fact remained. Unless and until the Luongo parties, as the parties moving for summary judgment, met their burden of establishing that no genuine issue of material fact existed, MacFarlane, the nonmoving party, had no obligation to submit evidence establishing the existence of such an issue. See, e.g., Capasso v. Christmann , 163 Conn.App. 248, 257, 135 A.3d 733 (2016) ; see also Allstate Ins. Co. v. Barron , 269 Conn. 394, 405, 848 A.2d 1165 (2004) (when documents submitted in support of motion for summary judgment fail to establish absence of genuine issue of material fact, nonmoving party has no obligation to submit documents establishing existence of such issue); Mott v. Wal-Mart Stores East, LP , 139 Conn.App. 618, 627, 57 A.3d 391 (2012) (same). Second, we note that "[o]ur Supreme Court had held that absent exceptional circumstances, a denial of a motion for summary judgment is not appealable where a full trial on the merits produces a verdict against the moving party.... The rationale for this rule is that a decision based on evidence presented at trial precludes review of a decision made on less summary judgment evidence." (Citations omitted; internal quotation marks omitted.) Brown v. State Farm Fire & Casualty Co. , 150 Conn.App. 405, 410, 90 A.3d 1054, cert. denied, 315 Conn. 901, 104 A.3d 106 (2014) ; see also Smith v. Greenwich , 278 Conn. 428, 464-65, 899 A.2d 563 (2006) ; Greengarden v. Kuhn , 13 Conn.App. 550, 552, 537 A.2d 1043 (1988). In the memorandum of decision on the merits, after hearing all of the evidence in this case, the court rejected the claims of waiver and estoppel raised by Luongo LLC. Under the circumstances of this case, there is no reason to depart from the general rule that a denial of a motion for summary judgment need not be reviewed following a subsequent trial and decision on the merits. Accordingly, we conclude that the court properly denied the motion for summary judgment. III Finally, the Luongo parties claim that the court improperly awarded punitive damages to MacFarlane. Specifically, they challenge the court's finding of recklessness with respect to the construction of the house. They further argue that absent this reckless conduct, punitive damages were not warranted. We disagree that the court's finding of recklessness was improper, and, therefore, conclude that the court did not abuse its discretion by awarding punitive damages. In count two of the counterclaim, MacFarlane alleged that Luongo LLC had held itself out as a new home contractor and that the house had not been completed as represented in the plan and specifications. Further, MacFarlane claimed that Luongo had represented that "he would personally supervise the contractors and subcontractors in connection with the construction of the house, yet the finished house contained numerous defects in material and workmanship resulting in leaks, heaving floors, and a [G]erry-rigged heating system, to name a few, all to [MacFarlane's] loss and damage." MacFarlane also claimed that these actions, standing alone and as result of violating § 20-417d through 20-417g, constituted a violation of CUTPA. The court found that the Luongo parties had violated § 20-417d and thus violated CUTPA. It then turned to the issue of punitive damages under CUTPA. "Mere negligent workmanship might not justify an award of punitive damages. However, in this case [the Luongo parties] disregarded the modular home manufacturer's instructions and recommended installation methods. According to . Rocco, those instructions were not complex, but, rather, were consistent with good construction practice. A contractor with the experience and integrity that Luongo, LLC held itself out to be would surely have insured that the beams running through the first floor of the house were straight and would have bolted roof beams so that the walls in the house were not under constant torque, which made the drywall crack. The construction of the house described by . Rocco as 'shocking' combined with the failure to comply with . § 20-417d justify the conclusion that the conduct . was reckless within the meaning of CUTPA, and that punitive damages should be awarded by the court." Our Supreme Court has stated that "[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.... 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.... In fact, the flavor of the basic requirement to justify an award of punitive damages is described in terms of wanton and malicious injury, evil motive and violence." (Citation omitted; internal quotation marks omitted.) Ulbrich v. Groth , supra, 310 Conn. at 446, 78 A.3d 76 ; see also Votto v. American Car Rental, Inc. , 273 Conn. 478, 486, 871 A.2d 981 (2005) (trial court exercises discretion to award punitive damages under CUTPA after finding party acted recklessly); Bridgeport Harbour Place I, LLC v. Ganim , 131 Conn.App. 99, 139-40, 30 A.3d 703 (under CUTPA, punitive damages awarded in amounts equal to or multiples of actual damages and are focused on deterrence rather than compensation), cert. granted, 303 Conn. 904, 905, 31 A.3d 1179, 1180 (2011) (appeals withdrawn January 26 and 27, 2012). Rocco, MacFarlane's expert, noted in his report that the steel beams and lolly columns that supported the home were not installed properly. It would have been "very easy" to check the elevation and the beam's level with a laser transit, and it was "enormously important" to do so; nevertheless, the Luongo parties failed to do so. (Emphasis omitted.) Compounding these errors was the failure to secure the beams and columns to prevent the beams from shifting. Rocco described the construction as "haphazard" and stated that it led to a "domino effect" of problems in the house. Rocco further noted the errors of Luongo LLC to follow the plans leading to the issues with the placement of the cellar stairs, resulting in a smaller usable space in the garage than MacFarlane had bargained for. These facts support the court's determination that the Luongo parties had failed to follow the specifications of the home manufacturer and performed the "crucial" work of setting the foundation and beams in a "shockingly" poor manner. The attempts to place blame on third parties for the substandard construction work ignores the contractual responsibility of Luongo LLC to provide MacFarlane with a completed modular home with a three car garage. The contract further required that all work was "guaranteed to be as specified and . performed in accordance with the drawing and specifications provided . [and] completed in a substantial workman-like manner ." (Emphasis omitted.) On the basis of the record before us, we cannot conclude that the court abused its discretion in awarding punitive damages. A flood of defects cascaded as a result of the "shockingly" poor installation of the beams and columns and failure to follow the specifications and recommended installation methods of the home manufacturer. This conduct, coupled with the failure to comply with the requirements of § 20-417d, led the court to conclude that there had been recklessness within the meaning of CUTPA and thus punitive damages were appropriate. "Punitive damages are awarded when the evidence shows a reckless indifference to the rights of others or an intentional and wanton violation of those rights." (Internal quotation marks omitted.) Tessmann v. Tiger Lee Construction Co. , 228 Conn. 42, 54-55, 634 A.2d 870 (1993) (no abuse of discretion to award punitive damages under CUTPA where contractors' numerous derelictions included representation that it would do work using its own employees but in fact relied on subcontractors, driveway not constructed to afford easy access to kitchen to accommodate plaintiff's medical condition, driveway leaked water into basement, skylight leaked and contractor refused to correct it, claiming it was merely condensation and poor grading caused water to leak into basement near electrical panel); see also Ulbrich v. Groth , supra, 310 Conn. at 446-47, 78 A.3d 76. Accordingly, we disagree that the court abused its discretion in awarding punitive damages under CUTPA. The judgment is affirmed. In this opinion LAVINE, J., concurred. "The New Home Construction Contractors Act, which took effect on October 1, 1999, regulates the activities of new home construction contractors. The act requires a contractor to obtain a certificate of registration from the commissioner of consumer protection (commissioner) before he or she may engage in the business of new home construction or hold himself or herself out as a new home construction contractor . The act also specifies the circumstances under which the commissioner may revoke, suspend or refuse to issue or renew a certificate of registration. . Other provisions of the act affirmatively regulate the conduct of new home construction contractors, prohibit new home construction contractors from engaging in certain activities and set forth various requirements as to the format and content of new home construction contracts. "The act further provides three distinct penalties for a violation of its provisions. First, the act empowers the commissioner to impose a civil penalty on, among others, any person who engages in or practices the work for which a certificate of registration is required by [the act] . without having first obtained such a certificate of registration or any person who violates any of the provisions of [the act] . Second, the act provides that any person who violates any provision of subsection (d) of section 20-417d shall be guilty of a class A misdemeanor. . Finally, the act provides that a violation of any of its provisions shall be deemed an unfair or deceptive trade practice under subsection (a) of section 42-110b...." (Citations omitted; emphasis added; footnotes omitted; internal quotation marks omitted.) D'Angelo Development & Construction Co. v. Cordovano, 278 Conn. 237, 243-45, 897 A.2d 81 (2006). General Statutes § 21-86 provides: "No person shall sell at retail a new mobile manufactured home or a new modular or prefabricated home in this state without a written manufacturer's warranty to the buyer containing the following terms: "(1) That such home is free from any substantial defects in materials or workmanship in the structure, plumbing, heating and electrical systems and all appliances and other equipment installed or included therein or thereon by the manufacturer. "(2) That the seller or manufacturer shall take appropriate corrective action at the site of such home in instances of substantial defects in materials or workmanship which become evident within one year from the date of delivery of such home to the buyer, provided the buyer gives written notice of such defects to the seller, manufacturer or dealer at his business address as soon as such defects become evident. The warranty provided herein shall be in addition to and not in derogation of any other right or privilege which the buyer may have as otherwise provided by law or instrument. The seller or manufacturer shall not require the buyer to waive his rights under this chapter and any waiver shall be deemed contrary to public policy and shall be void and unenforceable. Any action instituted by a buyer for failure of the manufacturer to comply with the provisions of this chapter shall allow the recovery of court costs and reasonable attorney's fees." Punitive damages awarded as a result of a violation of CUTPA focus on deterrence, rather than compensation and often are awarded as a multiple of actual damages. See, e.g., Bridgeport Harbour Place I, LLC v. Ganim, 131 Conn.App. 99, 144-45, 30 A.3d 703, cert. granted, 303 Conn. 904, 905, 31 A.3d 1179, 1180 (2011) (appeals withdrawn January 26 and 27, 2012). On July 27, 2015, the court awarded MacFarlane $47,359 in attorney's fees. The Luongo parties have not challenged the awarding of attorney's fees in the case. We note that as a result of Judge Wilson's subsequent order denying the motion to cite in, Luongo was not added as a party in the New Haven action. "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 . may treat that [prior] 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." (Internal quotation marks omitted.) Brown v. Otake, 164 Conn.App. 686, 702-703, 138 A.3d 951 (2016). The Luongo parties also suggested that MacFarlane had a fair opportunity to litigate the claims set forth in the counterclaim in the Middletown case in his action filed in New Haven. In other words, they insinuate that the doctrine of collateral estoppel was intertwined with the claim of the prior pending actions doctrine. "Under Connecticut law, [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.... 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.... The doctrine of collateral estoppel 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." (Internal quotation marks omitted.) Gateway, Kelso & Co. v. West Hartford No. 1, LLC, 126 Conn.App. 578, 583-84, 15 A.3d 635, cert. denied, 300 Conn. 929, 16 A.3d 703 (2011). To the extent that they have advanced a claim of collateral estoppel, we decline to consider it because it was not raised in the trial court, addressed by the trial court, or briefed adequately. We may affirm a proper result of the trial court for a different reason. Rafalko v. University of New Haven, 129 Conn.App. 44, 51 n.3, 19 A.3d 215 (2011). "[A] waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. An effective waiver presupposes full knowledge of the right or privilege allegedly [being] waived and some act done designedly or knowingly to relinquish it.... Moreover, the waiver must be accomplished with sufficient awareness of the relevant circumstances and likely consequences." (Internal quotation marks omitted.) Chang v. Chang, 170 Conn.App. 822, 830, 155 A.3d 1272, cert. denied, 325 Conn. 910, 158 A.3d 321 (2017). "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, 135 Conn.App. 329, 334-35, 41 A.3d 1126 (2012). Specifically, the court stated: "[Luongo LLC] has argued that this payment and letter from . Coppola evidenced MacFarlane's satisfaction with the house. The court does not agree with this characterization. In July, 2011, [MacFarlane] had not yet retained any experts to assess [Luongo LLC's] work and had no idea about the major errors in workmanship which had occurred. He knew the house had cracks, but did not know that due to improper bolting of the ceiling beams, the drywall in the house would continue to crack for years. He knew that there was a huge ridge running through the first floor of his house, but did not know that this was due to the failure to use any effort to make sure that the beams were set level." The Luongo parties do not challenge the amount of punitive damages awarded in the present case. We note that our Supreme Court has instructed that "CUTPA is, on its face, a remedial statute that broadly prohibits unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.... [CUTPA] provides for more robust remedies than those available under analogous common-law causes of action, including punitive damages . and attorney's fees and costs, and, in addition to damages or in lieu of damages, injunctive or other equitable relief." (Internal quotation marks omitted.) Artie's Auto Body, Inc. v. Hartford Fire Ins. Co., 317 Conn. 602, 623, 119 A.3d 1139 (2015). Rocco described the home manufacturer's instructions and recommended installation methods as "not complex" and "consistent with good construction practice."

12490419

Tinesse TILUS v. COMMISSIONER OF CORRECTION

Tilus v. Comm'r of Corr.

2017-08-08

AC 39275.

1136

1152

167 A.3d 1136

167

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.022978+00:00

Fastcase

Tinesse TILUS v. COMMISSIONER OF CORRECTION

Tinesse TILUS v. COMMISSIONER OF CORRECTION AC 39275. Appellate Court of Connecticut. Argued May 17, 2017 Officially released August 8, 2017 Vishal K. Garg, for the appellant (petitioner). Emily D. Trudeau, assistant state's attorney, with whom, on the brief, was John. C. Smriga, state's attorney, for the appellee (respondent). Lavine, Mullins and Beach, Js. Opinion

8017

49809

LAVINE, J. The petitioner, Tinesse Tilus, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court improperly concluded that his state and federal constitutional rights to (1) conflict free counsel and (2) the effective assistance of counsel were not violated. We affirm the judgment of the habeas court. In 2012, following a jury trial, the petitioner was convicted of one count of robbery in the first degree, in violation of General Statutes § 53a-134(a)(2), for his participation in the robbery of the Caribbean-American Grocery and Deli in Bridgeport on December 28, 2011. State v. Tilus , 157 Conn.App. 453, 455, 117 A.3d 920 (2015), appeal dismissed, 323 Conn. 784, 151 A.3d 382 (2016). The trial court, Kavanewsky, J. , sentenced the petitioner to twelve years of incarceration, execution suspended after eight years, followed by four years of probation. Id., at 460, 117 A.3d 920. The petitioner's conviction was affirmed by this court on direct appeal. Id., at 489, 117 A.3d 920. On July 8, 2015, our Supreme Court granted the petitioner certification to appeal limited, in part, to the following issue: "Did the Appellate Court properly determine that the trial court secured a valid waiver of the [petitioner's] constitutional right to conflict free representation?" State v. Tilus , 317 Conn. 915, 117 A.3d 854 (2015). The Supreme Court subsequently dismissed the petitioner's direct appeal from the Appellate Court's judgment. State v. Tilus , supra, 323 Conn. 784, 151 A.3d 382. The following facts, as set forth by this court in resolving the petitioner's direct appeal, provide the context for the claims he raises in the present appeal. At approximately 8 p.m. on December 28, 2011, Rene Aldof and Ramon Tavares were tending Aldof's store on Wood Avenue in Bridgeport, "when four men entered the store. One of the men was the [petitioner], whom Aldof recognized as 'Tinesse,' a regular customer of the store. Aldof also recognized a second man, Jean Barjon, but did not recognize either of the two other men. One of the unknown men pulled out a handgun and demanded that Aldof give him the money, while the other three men, including the [petitioner], 'encased' him in an effort to prevent his escape. Aldof was able to push past the men and exit the store, pursued by one of the men, who unsuccessfully attempted to restrain him by grabbing his coat. Aldof ran into a nearby laundromat, where he held the door shut to prevent his pursuer from coming in behind him." State v. Tilus , supra, 157 Conn.App. at 455-56, 117 A.3d 920. Tavares was stationed in a plexiglass booth with the cash register and remained there after Aldof left the store. Id., at 456, 117 A.3d 920. A man pointing a gun at Tavares approached the booth and ordered him to open the door. Id. The man entered the booth when Tavares opened the door and turned Tavares to face the wall, held the gun to his head, and took Tavares' cell phone, wallet and the money in the cash register. Id. Outside, Bridgeport Police Officer Elizabeth Santora was driving her police cruiser on Wood Avenue when Aldof exited the laundromat and flagged her down. Id. Aldof told Santora that he had been robbed at gunpoint and pointed to one of his assailants who was walking down Wood Avenue. Id., at 456-57, 117 A.3d 920. Santora followed the suspect and saw him stop next to several trash cans on Sherwood Avenue. Id., at 457, 117 A.3d 920. She exited her police cruiser, ordered the suspect to stop, apprehended him, and pulled him toward her cruiser. Id. "As Santora approached the cruiser with the suspect in tow, she observed a white Nissan Altima that had been parked on Sherwood Avenue begin 'pulling off' into the street. Aldof, then positioned on the corner of Wood and Sherwood Avenues, told Santora that the three men in the Altima had also been involved in the robbery. Santora flagged down the vehicle and told its driver to stop the car and give her the keys. The driver obeyed. The first suspect and the three men in the Altima were detained for questioning. The [four] men were later identified as Guillatemps Jean-Philippe, Jean Louis, Barjon, and the [petitioner]. Aldof confirmed that the detainees were the same four men who had robbed his store." Id. The petitioner was arrested and charged with conspiracy to commit robbery in the first degree and robbery in the first degree. Id., at 458, 117 A.3d 920. He pleaded not guilty and testified at trial that on the night of the robbery, "his friend, Barjon, had come to his house at about 7 p.m. and asked him if he would like to take a ride to New Haven. When he agreed to do so, he got in Barjon's car, where Jean-Philippe and another man he did not know were seated in the rear passenger seat. The [petitioner] was told that Barjon had agreed to drive the two men to the train station in New Haven. Instead, however, Barjon drove to Aldof's store and parked his car on the corner of Wood and Sherwood Avenues. The [petitioner] testified that once they arrived at the store, Jean-Philippe, 'with no mention, nothing,' got out of the car and entered the store. The [petitioner] and the other two men remained in the parked car ." Id., at 458-59, 117 A.3d 920. The following undisputed procedural history is relevant to the present appeal. At his arraignment on December 29, 2011, the petitioner was represented by a public defender. Id., at 460-61, 117 A.3d 920. Barjon also was arraigned that day, and he, too, was represented by a public defender. Id., at 461, 117 A.3d 920. On January 31, 2012, Eroll Skyers, an attorney, filed an appearance on behalf of the petitioner and Barjon. Id. On February 7, 2012, the petitioner entered a plea of not guilty before the court, Devlin, J. Id. Skyers informed Judge Devlin that he represented both the petitioner and Barjon. Id. On April 9, 2012, the petitioner and Skyers appeared before Judge Devlin. Id. The petitioner rejected the state's plea offer, and the case was placed on the trial list. Id. On October 2, 2012, Skyers and Barjon appeared before Judge Devlin. Id. Skyers represented to the court that Barjon intended to plead guilty under the Alford doctrine to the charge of conspiracy to commit robbery in the first degree. Id."Barjon failed his plea canvass, however, and thus the court vacated his guilty plea. Because, at that time, it was clear that both Barjon and the [petitioner] intended to proceed to trial, [Judge Devlin] raised with Skyers the potential conflict of interest presented by his continued representation of both men. In this regard, the court focused initially on problems associated with Skyers' continued representation of Barjon. Skyers responded by stating for the record that when Barjon and the [petitioner] first came to him seeking joint representation, he had informed them that there could be a potential conflict if both cases proceeded to trial. Although both men persisted in their desire to have him represent them, they agreed that Barjon would retain other counsel if his case was not resolved by entering a guilty plea." (Footnote omitted.) Id., at 461-62, 117 A.3d 920. The prosecutor questioned whether, given the circumstances, Skyers' continued representation of the petitioner was advisable and identified scenarios that presented a potential conflict of interest. Id., at 462, 117 A.3d 920. Judge Devlin asked Skyers whether he had discussed the matter with the petitioner. Id. The petitioner was in the courtroom and came forward to answer questions from Judge Devlin. Id. The court explained the attorney-client privilege to the petitioner and potential conflict that could arise as a result of Skyers' having represented both the petitioner and Barjon. Id., at 463, 117 A.3d 920. The following colloquy occurred. "The Court: So . I don't know what Mr. Barjon [is] going to do. I assume he's going to hire his own lawyer, and whatever happens with that case, happens with that case. I'm more concerned with yours because I think I'm going to let Mr. Skyers out of Mr. Barjon's case. But with respect to you, do you still wish to have Mr. Skyers as your lawyer under those circumstances? "[The Petitioner]: Yes. "The Court: Would you like to consult with another lawyer, a different lawyer about this, you know, before we go forward with your case? "[The Petitioner]: No.... "The Court: Okay. All right. And, Attorney Skyers, from your point of view, have I correctly framed the issue as far as-is there more that should be put on the record here? "[Skyers]: Absolutely have, Your Honor. Yes." (Internal quotation marks omitted.) Id., at 464, 117 A.3d 920. On direct appeal, the petitioner claimed that Judge Devlin's "failure to secure a valid waiver violated his constitutional right to conflict free representation." Id., at 460, 117 A.3d 920. He argued that "Skyers' joint representation of [him] and Barjon in the pretrial phase of the proceedings gave rise to a conflict of interest which jeopardized the [petitioner's] sixth and fourteenth amendment right to counsel. He further argue[d] that [Judge Devlin's] inquiry into the matter was not adequate to apprise him of the risks of continued representation by Skyers and, thus, no valid waiver was obtained." Id., at 464, 117 A.3d 920. This court disagreed; id., at 460, 117 A.3d 920 ; stating that "the record shows that the court explored the potential conflict of interest when the issue was raised by the prosecutor. The court heard from Skyers and the [petitioner]. Skyers represented to the court that he had discussed the potential conflict of interest with the [petitioner]. The court then informed the [petitioner] of the risks attendant to Skyers' representation of him, namely, Skyers' continuing obligations to Barjon and the ethical barrier to using any information that he had acquired as a result of representing Barjon. The [petitioner] confirmed that he was aware of Skyers' obligations to Barjon, and he expressed his desire to proceed with his retained counsel." Id., at 467-68, 117 A.3d 920. This court observed that "[i]n any case involving a possible conflict of interest, the court must be mindful of the defendant's constitutional right to the counsel of his choice . when making a determination as to the soundness of the defendant's determination to move forward with his present counsel despite the potential risks. [O]ur chosen system of criminal justice is built on a truly equal and adversarial presentation of the case, and upon the trust that can exist only when counsel is independent of the [g]overnment. Without the right, reasonably exercised, to counsel of choice, the effectiveness of that system is imperiled." (Citation omitted; internal quotation marks omitted.) Id., at 471-72, 117 A.3d 920. This court concluded that the petitioner "persisted in his desire to proceed to trial with the assistance of [Skyers,] his chosen counsel. In light of the fact that the only anticipated impediment to Skyers' continued representation of the [petitioner] was the possibility that Barjon would choose to testify on the [petitioner's] behalf, which the court correctly deemed unlikely given Barjon's decision to proceed to trial, it properly deferred to the [petitioner's] expressed desire to proceed, notwithstanding the potential conflict." Id., at 472, 117 A.3d 920. This court rejected the petitioner's remaining claims and affirmed the petitioner's judgment of conviction. Id., at 489, 117 A.3d 920. The petitioner filed a petition for certification to appeal, which was granted. While his direct appeal was pending in this court, the self-represented petitioner filed a petition for a writ of habeas corpus in January, 2014. On March 19, 2015, the petitioner's appointed habeas counsel filed an amended petition for a writ of habeas corpus, alleging that the petitioner's right to conflict free counsel was violated (count one) and that he received ineffective assistance of trial counsel (count two). The respondent, Commissioner of Correction, denied the material allegations of the amended petition and asserted a special defense that count one of the petition was not ripe for adjudication, as the claim regarding the claim of waiver as to conflict free counsel was still pending and therefore not ripe for adjudication. In the alternative, the respondent alleged that once this court had adjudicated the waiver claim, the issue would be res judicata and barred from further litigation. The petitioner replied to the respondent's return, alleging that count one was ripe pursuant to the prudential ripeness doctrine, that he had suffered actual injury due to his trial counsel's conflict of interest, and that his claim was not contingent on this court's resolution of his direct appeal. Moreover, the petitioner alleged that even if this court concluded that count one required factual development, the claim was not barred by the doctrine of res judicata. This court affirmed the petitioner's conviction on May 26, 2015, concluding in relevant part that Judge Devlin did not violate the petitioner's constitutional right to conflict free counsel by failing to secure a valid waiver of that right. Id., at 460, 117 A.3d 920. Our Supreme Court granted certification to appeal. The parties appeared before the habeas court for trial on July 20 and 21, 2015. The habeas court asked the parties to brief the impact of the pending certified appeal on the petitioner's claim of conflict free counsel. The habeas court issued a memorandum of decision on January 11, 2016, in which it concluded that the doctrine of prudential ripeness warranted dismissal of count one while the question of whether the petitioner validly had waived his right to conflict free representation was pending in our Supreme Court. With respect to count two, the habeas court found that Skyers' representation was deficient in that he failed to timely and adequately investigate the charges against the petitioner. The court concluded, however, that the petitioner failed to prove that he was prejudiced by Skyers' deficient performance. See Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984) (to prevail, deficient performance must result in prejudice). The court dismissed without prejudice count one of the amended petition and denied the claims in count two. On January 15, 2016, the petitioner filed a motion to reargue the habeas court's decision to dismiss count one on the ground of prudential ripeness. The habeas court granted the motion to reargue, and the parties appeared before the court for further argument on February 23, 2016. As a consequence of the parties' arguments, on May 9, 2016, the court issued an amended memorandum of decision in which it denied count one, after it concluded that the petitioner failed to prove that any potential conflict created by Skyers' having represented both the petitioner and Barjon was prejudicial to him. Thereafter, the court granted the petitioner's petition for certification to appeal from the denial of his petition for a writ of habeas corpus. The petitioner appealed to this court. Additional facts will be set forth as needed. I The petitioner claims that his constitutional right to conflict free counsel, as provided by the sixth and fourteenth amendments to the United States constitution and article first, § 8 and 9, of the constitution of Connecticut, was violated by Skyers' having represented both the petitioner and Barjon prior to the petitioner's criminal trial. We disagree. "The sixth amendment to the United States constitution as applied to the states through the fourteenth amendment, and article first, § 8, of the Connecticut constitution, guarantee to a criminal defendant the right to effective assistance of counsel.... Where a constitutional right to counsel exists, our [s]ixth [a]mendment cases hold that there is a correlative right to representation that is free from conflicts of interest." (Citations omitted; footnote omitted; internal quotation marks omitted.) State v. Crespo , 246 Conn. 665, 685, 718 A.2d 925 (1998), cert. denied, 525 U.S. 1125, 119 S.Ct. 911, 142 L.Ed. 2d 909 (1999). Conflicts of interest usually arise when counsel undertakes to represent multiple codefendants "where the attorney adduces evidence or advances arguments on behalf of one defendant that are damaging to the interests of the other defendant." (Internal quotation marks omitted.) State v. Cruz , 41 Conn.App. 809, 812, 678 A.2d 506, cert. denied, 239 Conn. 908, 682 A.2d 1008 (1996). "A conflict of interest also arises if trial counsel simultaneously represents the defendant and another individual associated with the incident and that representation inhibits counsel's ability to represent the defendant." Id. "Whether the circumstances of pretrial counsel's representation, as found by the habeas court, amount to an actual conflict of interest is a question of law of which our review is plenary." Shefelbine v. Commissioner of Correction , 150 Conn.App. 182, 193, 90 A.3d 987 (2014). In count one of his amended petition for a writ of habeas corpus, the petitioner alleged, in relevant part, that Skyers simultaneously represented Barjon and him for approximately ten months between January, 2012, and October, 2012. The charges against the petitioner and Barjon arose from a single incident in which they allegedly were both involved, and therefore the petitioner's case and Barjon's case were factually related. The petitioner also alleged that Skyers had an actual conflict of interest that adversely affected his representation of the petitioner because Skyers made no attempt to negotiate a plea offer that would have allowed the petitioner to receive a favorable sentence in his case in exchange for his testifying against Barjon. At the hearing on his motion to reargue, the petitioner emphasized that his claim centered on how Skyers' alleged conflict of interest negatively impeded his ability to negotiate a plea agreement in exchange for a favorable disposition of the charges against him. The habeas court found the following facts relevant to the adjudication of the petitioner's claim. From his first meeting with Skyers through his criminal trial, the petitioner's version of the events that took place on December 28, 2011, remained unchanged. The petitioner told Skyers that he knew Barjon and merely agreed to take a ride with Barjon, who was driving the other two men to the train station in New Haven. He did not know the other men in the car when Barjon picked him up. Instead of going to the train station, Barjon drove to Aldof's store and parked. The petitioner and Barjon remained in Barjon's car when Jean-Philippe got out of the car and went into the store. The petitioner did not know of a plan to rob the store or Aldof. The petitioner stated to Skyers that Barjon would corroborate his version of the events and was willing to sign a statement consistent with what the petitioner had told Skyers. Two or three weeks after the petitioner had retained him, Skyers met with Barjon, who confirmed the petitioner's version of events. Skyers believed that both the petitioner and Barjon were in the same position and agreed to represent Barjon as well. Although he intended to have the petitioner and Barjon sign waivers of any potential conflicts, he failed to do so. The petitioner and Barjon knew that Skyers was representing them simultaneously. Before the petitioner's case went to trial, Barjon agreed to plead guilty under the Alford doctrine. See footnote 4 of this opinion. Although he disputed the state's version of his involvement in the underlying crime, Barjon was willing to accept legal responsibility for his part in the robbery and to testify at the petitioner's trial that the petitioner was not involved in the robbery. When it came time for Barjon to enter his guilty plea, however, he changed his mind. Skyers withdrew from representing Barjon. Judge Devlin then canvassed the petitioner about the fact that Skyers may have a conflict in representing him at trial because he could not be adverse to Barjon either in questioning or by using confidential information Skyers had received from Barjon. "In a case of a claimed conflict of interest . in order to establish a violation of the sixth amendment the defendant has a two-pronged task. He must establish (1) that counsel actively represented conflicting interests and (2) that an actual conflict of interest adversely affected his lawyer's performance.... Where there is an actual conflict of interest, prejudice is presumed because counsel [has] breach[ed] the duty of loyalty, perhaps the most basic of counsel's duties. Moreover, it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests.... Accordingly, an ineffectiveness claim predicated on an actual conflict of interest is unlike other ineffectiveness claims in that the petitioner need not establish actual prejudice.... "An actual conflict of interest is more than a theoretical conflict. The United States Supreme Court has cautioned that the possibility of conflict is insufficient to impugn a criminal conviction.... A conflict is merely a potential conflict of interest if the interests of the defendant may place the attorney under inconsistent duties at some time in the future.... To demonstrate an actual conflict of interest, the petitioner must be able to point to specific instances in the record which suggest impairment or compromise of his interests for the benefit of another party . A mere theoretical division of loyalties is not enough.... If a petitioner fails to meet that standard, for example, where only a potential conflict of interest has been established, prejudice will not be presumed and the familiar Strickland prongs will apply." (Citations omitted; emphasis altered; internal quotation marks omitted.) Anderson v. Commissioner of Correction , 127 Conn.App. 538, 549-50, 15 A.3d 658 (2011), aff'd, 308 Conn. 456, 64 A.3d 325 (2013). In the present case, the habeas court determined that there was no actual conflict of interest between the petitioner and Barjon. The court found that both Barjon and the petitioner told Skyers the same version of events, i.e., that they remained in the car and did not go into the store, and that they had nothing to do with the robbery. The court also found that there was no evidence that the petitioner ever said or did anything to suggest that he had information that would implicate Barjon, which might be used to secure a favorable plea deal from the state. The court found it ironic that it was Barjon who agreed to implicate himself and to plead guilty so that he could then testify in support of the petitioner's defense. Even at the time of his unsuccessful Alford plea, Barjon insisted that he and the petitioner never went into the store, but remained in the car. Before Skyers withdrew from representing Barjon, he had negotiated a plea for Barjon that would have required him to plead guilty to one count of conspiracy to commit robbery in the first degree, and after pleading guilty, to assist in the petitioner's defense. There was no impairment or compromise of the petitioner's interests for the benefit of Barjon or any of the other codefendants. The habeas court found that the petitioner had failed to prove a single, specific instance in which Skyers' representation of him was compromised by the alleged conflict. The petitioner's hypotheses of what might have happened in plea negotiations had Skyers not also represented Barjon are theoretical and speculative. At most, the petitioner demonstrated that Skyers had a potential conflict of interest and, therefore, the petitioner had to meet both prongs of Strickland to prevail. "To prevail on a claim of ineffective assistance of counsel, a habeas petitioner generally must show that counsel's performance was deficient and that the deficient performance prejudiced the defense. See Strickland v. Washington , [supra, 466 U.S. [at] 687 [104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ] ]." Ortiz v. Commissioner of Correction , 92 Conn.App. 242, 244, 884 A.2d 441, cert. denied, 276 Conn. 931, 889 A.2d 817 (2005). The habeas court did not address the performance prong of Strickland because the petitioner failed to prove any prejudice due to a potential conflict of interest. The court found no evidence that the petitioner was ever interested in a plea agreement. Moreover, the evidence established that it is likely that the state would have seen little value in any cooperation from the petitioner. Aldof told the police, and later testified, that four men entered the store and participated in the robbery. He specifically identified the petitioner, whom he knew, as being in the store and part of the robbery. The petitioner's version of events, in which he remained in the car while Jean-Philippe went into the store, was inconsistent with Aldof's version, and would have been of little use to the state in a trial against Barjon. The only testimony that the petitioner could have given that would have been of use to the state was testimony that corroborated Aldof's, but the petitioner was never willing to incriminate himself. The court also found that the petitioner's story of events never changed from when he was arrested, to his criminal trial, to his habeas trial. There was no evidence that the petitioner knew anything that Skyers could have used to negotiate a favorable plea agreement for him. The habeas court, therefore, concluded that the petitioner failed to prove that any potential conflict created by Skyers' joint representation of the petitioner and Barjon prejudiced him. On the basis of our review of the briefs of the parties and their oral arguments in this court, we conclude that the habeas court properly determined, in a detailed and well reasoned decision, that no actual conflict of interest between the petitioner and Barjon existed and that the petitioner had failed to prove that he was prejudiced by any potential conflict created by Skyers' joint representation of him and Barjon. II The petitioner's second claim is that the habeas court improperly determined that his constitutional right to the effective assistance of counsel pursuant to the sixth and fourteenth amendments to the federal constitution and article first, § 8 and 9 of the constitution of Connecticut, was not violated. We do not agree. "In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner's constitutional right to effective assistance of counsel is plenary.... To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington , [supra, 466 U.S. [at] 687 [104 S.Ct. 2052] ]." (Citation omitted; internal quotation marks omitted.) Mukhtaar v. Commissioner of Correction , 158 Conn.App. 431, 437, 119 A.3d 607 (2015). "[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 must be considered sound trial strategy." (Internal quotation marks omitted.) Id., at 438, 119 A.3d 607. In his amended petition for a writ of habeas corpus, the petitioner alleged ten ways in which Skyers' representation was deficient. The habeas court, however, found that the petitioner abandoned five of them by failing to brief them and by presenting little or no evidence as to them. Consequently, the habeas court addressed only the claims alleging that Skyers' representation was deficient in that he failed to conduct an adequate and timely investigation, failed to present evidence that a firearm recovered near the scene of the robbery was not connected to the petitioner and his codefendants, failed to present evidence that the amount of money recovered from the petitioner and his codefendants was inconsistent with the amount of money alleged to have been taken, presented the testimony of Jean-Philippe, which he knew, or should have known, would be damaging to the petitioner's defense, and failed to present the testimony of Margarita Azcalt. The habeas court grouped the petitioner's claims for purposes of analysis. The petitioner alleged that Skyers' representation was deficient because he failed to conduct a timely investigation, which resulted in Skyers' (1) failing to have Azcalt testify for the defense and (2) having Jean-Philippe testify for the defense. The court agreed that Skyers' representation was deficient for failing to conduct a timely investigation, but that the petitioner was not prejudiced by Skyers' deficient performance. A The habeas court made the following additional findings of fact. The petitioner was arrested on or about December 28, 2011, and after posting bond, met with Skyers on or about December 31, 2011. The petitioner then spoke with Barjon, a friend and codefendant, who was willing to speak with Skyers and provide a supporting statement for the petitioner. As discussed previously, Skyers also undertook to represent Barjon. On the basis of what the petitioner and Barjon told him, Skyers viewed their defenses as the same and not to be in conflict. In part because Barjon was willing to give a statement on the petitioner's behalf, Skyers negotiated a plea arrangement for Barjon. When Barjon and Skyers appeared before Judge Devlin, Barjon's plea canvass failed and his case was placed on the trial list. Skyers withdrew as Barjon's counsel, and Barjon obtained different counsel. Contrary to their original plan, Barjon exercised his right under the fifth amendment and would not testify at the petitioner's trial. Jury selection in the petitioner's criminal case was to begin in early October, 2012. Skyers only began to discuss the defense investigation with Joseph Marchio, then with JBM Private Investigations and Security, LLC (JBM firm), during jury selection. By October 4, 2012, six jurors and a number of alternates had been selected for the petitioner's case. Judge Kavanewsky advised Skyers that he should be prepared to present defense witnesses at 10 a.m. on October 17, 2012, and the matter was continued to October 16, 2012, for the presentation of the state's case. On October 10, 2012, Skyers hired the JBM firm to investigate the petitioner's case. Julio Ortiz, an investigator with the JBM firm, prepared a memorandum detailing his investigation efforts from October 10 through October 18, 2012. Ortiz did not provide portions of his report to Skyers while he was conducting his investigation, but did provide Skyers with the entire report on October 18, 2012. The court found that by October 18, 2012, it was too late. The state had presented its case from October 16, 2012, into the next day, and Skyers presented defense witnesses from October 17, 2012, into the next day. Both the state and Skyers had rested and presented their closing arguments on October 18, 2012, before Skyers ever saw Ortiz' report. Skyers' focus for both the petitioner and Barjon was the pretrial phase, which included efforts to resolve both of his clients' cases via plea agreement. His strategy was to have Barjon plead guilty and then testify on behalf of the petitioner. That strategy unraveled when Judge Devlin vacated Barjon's guilty plea, and Barjon obtained substitute counsel and declined to testify in support of the petitioner's defense. Although Skyers reviewed police reports, statements, and other related documents, and spoke to potential witnesses the petitioner identified, the court found no evidence that he conducted any other investigation prior to October 10, 2012. According to Skyers, his practice with regard to pretrial investigations is case dependent. In some cases he waits to the onset of trial to begin investigating. The short notice that is given when a case is called for trial is a factor that affects the timing of an investigation. Other factors that affect his investigations are the severity of the criminal charges and the likelihood the matter will be settled by a plea agreement. In the petitioner's case, Skyers thought the investigation would be relatively simple. Although he thought it important to have the results of the investigation before he presented the petitioner's case, he did not receive the results of the investigation until after he had made his final argument. Aside from the jury's rendering its verdict, the trial was over. The court found that because the petitioner and Barjon were in similar positions and their defenses were essentially identical, Skyers never considered that an investigation might uncover information that was helpful to one of his clients but not the other. He ignored that possibility despite the fact that the petitioner never indicated any interest in resolving the matter by way of a plea agreement. The petitioner intended to go to trial, which Skyers knew from the beginning of his representation of the petitioner. Nevertheless, Skyers acted as if his primary duty was to resolve the criminal case by means of a plea agreement because he thought that was in the petitioner's best interest. The court was familiar with the standards applicable to claims that counsel rendered ineffective assistance for failing to conduct an adequate investigation. "[I]t is well established that [a] criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings." (Internal quotation marks omitted.) Gaines v. Commissioner of Correction , 306 Conn. 664, 677, 51 A.3d 948 (2012), quoting Strickland v. Washington , supra, 466 U.S. at 686, 104 S.Ct. 2052. "To establish ineffective assistance of counsel under the Strickland standard, the claim must be supported by evidence establishing that (1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance." (Internal quotation marks omitted.) Taft v. Commissioner of Correction , 159 Conn.App. 537, 544, 124 A.3d 1, cert. denied, 320 Conn. 910, 128 A.3d 954 (2015). "Inadequate pretrial investigation can amount to deficient performance, satisfying prong one of Strickland , as [c]onstitutionally adequate assistance of counsel includes competent pretrial investigation.... Although [courts] acknowledge that counsel need not track down each and every lead or personally investigate every evidentiary possibility before choosing a defense and developing it . [e]ffective assistance of counsel imposes an obligation [on] the attorney to investigate all surrounding circumstances of the case and to explore all avenues that may potentially lead to facts relevant to the defense of the case.... In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision to make particular investigations unnecessary." (Citations omitted; internal quotation marks omitted.) Id., at 546-47, 124 A.3d 1. The habeas court applied the foregoing factors to the petitioner's claims against Skyers for failing to timely and adequately investigate the petitioner's case, and concluded that Skyers' representation was deficient. From the outset, the petitioner claimed that he was innocent and that he wanted to go to trial. Although such a claim of innocence could eventually result in a guilty plea, a reasonably competent criminal defense attorney would have conducted an investigation into the defense well before trial. The benefit of an investigation could have been used in attorney-client discussions, plea negotiations, and trial preparation. Had Skyers investigated earlier, he may have garnered information that the petitioner's and Barjon's defenses were not as aligned as he initially thought. The same duty that Skyers thought obligated him to pursue plea negotiations should also have compelled him to investigate the matter earlier in his representation of the petitioner. The court found no reasonable strategic reason for Skyers to have delayed investigating and no reasonable decision that made the investigation unnecessary. The court, therefore, found that the petitioner had met the first prong of Strickland. B The court then analyzed the second, or prejudice, prong of Strickland . The petitioner alleged that he was prejudiced because Skyers (1) did not call Azcalt to testify at the criminal trial and (2) presented damaging testimony from Jean-Philippe. The court found, however, that the petitioner failed to demonstrate that he was prejudiced by Skyers' alleged deficient performance. "To prove prejudice, a petitioner must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland v. Washington , supra, 466 U.S. at 694, 104 S.Ct. 2052. In a habeas corpus proceeding, the petitioner's burden of proving that a fundamental unfairness had been done is not met by speculation . but by demonstrable realities." (Internal quotation marks omitted.) Taft v. Commissioner of Correction , supra, 159 Conn.App. at 553-54, 124 A.3d 1. 1 The petitioner claims that he was prejudiced by Skyers' failure to call Azcalt as a witness for the defense. We agree with the habeas court that the failure to call Azcalt did not undermine the jury's verdict. The court found the following facts. Azcalt was working in the laundromat where Aldof ran when he left the store and she saw him bar the door to the man who was chasing him. As to his investigation, Ortiz met with Azcalt at 7 p.m., on October 18, 2012, while the jury was deliberating, and stated that she was working in the laundromat and monitoring the surveillance camera. She noticed Aldof walking on the sidewalk when he ran into the laundromat and held the door shut to prevent a single black man from entering. Aldof asked her to call the police because he was being robbed. Azcalt only saw one man trying to get into the laundromat and did not see a weapon. Azcalt did not testify at the habeas corpus proceeding, and therefore the only evidence the petitioner presented of what she may have testified to was in Ortiz' summary. Azcalt's statement to Ortiz was consistent with Aldof's testimony that he fled to the laundromat and held the door closed to prevent one man from entering. Notably, Aldof did not testify that the four men in the store followed him. Santora testified that she saw only one man fleeing on foot when Aldof flagged her down. Azcalt's testimony, therefore, would not have undermined Aldof's testimony about what happened in the store, a place she had never been. Skyers was concerned, however, about the statement Azcalt gave to the police in which she stated that she saw three men outside the laundromat, which conflicted with the petitioner's and Barjon's version of events that they remained in the car. The court concluded that even if Skyers had called Azcalt to testify at the criminal trial, and she testified in accord with the statement she gave Ortiz, she would not have undermined Aldof's testimony regarding the events that took place in his store. The court therefore concluded that the petitioner failed to prove prejudice. Having undertaken a plenary review of the petitioner's claim, we agree with the court's well reasoned analysis. 2 The petitioner also claims that the habeas court improperly concluded that he was not prejudiced by Skyers' calling Jean-Philippe as a defense witness at trial. We disagree. The court found that Skyers was obtaining authorization for Ortiz to interview Jean-Philippe on October 12, 2012. Ortiz met with Jean-Philippe on October 15, 2012, at which time Jean-Philippe gave him a written statement. In his statement, Jean-Philippe stated that he entered the store alone and unarmed to collect money he had won on a bet. On October 17, 2012, Jean-Philippe testified at the petitioner's criminal trial that he got out of the car alone and went into the store to collect his winnings, and that the petitioner remained in the car, which was consistent with the petitioner's version of events. The damaging part of Jean-Philippe's testimony occurred on cross-examination when he testified that he was from New Jersey and that he had a criminal record. The court found that the petitioner exaggerated the harm he attributes to Jean-Philippe's testimony. The jury obviously credited Aldof's version of the robbery that four men entered his store and that he identified the petitioner, whom he knew, as one of those men. The court found that Jean-Philippe's testimony did not undermine its confidence in the outcome of the criminal trial. It therefore concluded that the petitioner had failed to demonstrate that he had been prejudiced by Jean-Philippe's testifying as a result of the untimely investigation Skyers initiated. The petitioner therefore failed to meet the second prong of Strickland . We have reviewed the record, including Jean-Philippe's statement and his testimony at the petitioner's criminal trial, and agree with the habeas court's conclusion. Although Jean-Philippe testified on cross-examination that he was from New Jersey and that he had a criminal record, which was not helpful to the petitioner, he testified that he alone entered the store, which was consistent with the petitioner's version of events. Counsel was faced with a difficult problem given Aldof's testimony that he recognized the petitioner as one of the four men who entered the store. We agree with the habeas court that the petitioner was not prejudiced by Skyers presenting Jean-Philippe's testimony because he knew or should have known it would have been damaging to the petitioner. Jean-Philippe testified in accordance with the petitioner's theory of the crime. The judgment is affirmed. In this opinion the other judges concurred. Although our Supreme Court dismissed the petitioner's direct appeal prior to oral argument on the petitioner's habeas corpus appeal, neither party brought that fact to this court's attention. The petitioner raised four claims in his direct appeal, including a claim that "the trial court [Devlin, J. ] violated his sixth amendment right to conflict free counsel by inadequately canvassing him as to his desire to proceed with retained counsel who had previously represented both him and one of his codefendants in the case ." State v. Tilus, supra, 157 Conn.App. at 455, 117 A.3d 920. We note that the name of the robbery victim has been spelled inconsistently, e.g., Rene Aldof and Rene Adolph. The indictment filed against the petitioner states-in relevant part: "stole certain property from one RENE ADOLPH." In the transcript of the petitioner's criminal trial, the victim's name is denominated Rene Aldof, which is the denomination used by this court in its decision adjudicating the petitioner's direct appeal. See State v. Tilus, supra, 157 Conn.App. at 455, 117 A.3d 920. In its memorandum of decision, the habeas court identified the victim as Rene Aldof. In this court's decision regarding the direct appeal of the petitioner's codefendant Jacques Louis, however, the robbery victim is identified as Rene Adolph. See State v. Louis, 163 Conn.App. 55, 134 A.3d 648, cert. denied, 320 Conn. 929, 133 A.3d 461 (2016). For consistency with respect to the petitioner's criminal trial, direct appeal, and habeas case, we denominate the victim of the robbery Rene Aldof. In this court's decision in State v. Louis, 163 Conn.App. 55, 134 A.3d 648, cert. denied, 320 Conn. 929, 133 A.3d 461 (2016), two of the robbery suspects were identified differently, namely, Jean Louis and Guillatemps Jean-Philippe were introduced as Jacques Louis and Guailletemps Jean-Philippe. See id., at 57-58, 134 A.3d 648. See North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 27 L.Ed. 2d 162 (1970). Our Supreme Court certified two issues for appeal, but only the issue "(1) Did the Appellate Court properly determine that the trial court secured a valid waiver of the [petitioner's] constitutional right to conflict free representation"; State v. Tilus, supra, 317 Conn. 915, 117 A.3d 854 ; is relevant in this appeal. Our Supreme Court eventually dismissed the petitioner's appeal entirely. See State v. Tilus, supra, 323 Conn. at 785, 151 A.3d 382. The habeas court reasoned that having our Supreme Court decide the certified claim of waiver "will increase the chance that the proper law is applied to the petitioner's claim . promote judicial economy by not having this court and the Appellate Court in the probable appeal from this court's decision address a claim that may turn out to be unnecessary, and the petitioner will not be harmed by a dismissal without prejudice." At the hearing on the motion to reargue, the petitioner conceded that any conflict before Judge Devlin could only be prospective. The habeas court concluded that the petitioner's prewaiver claim of conflict that affected Skyers' representation is outside the scope of any such waiver and was not addressed by this court and was not before our Supreme Court. The habeas court did not amend its decision with respect to count two, in which the petitioner alleged the ineffective assistance of trial counsel. We note that a plea agreement between a defendant and the state is not binding on the judicial authority that sentences a defendant who has pleaded guilty pursuant to a negotiated plea agreement. See, e.g., Alexander v. Commissioner of Correction, 103 Conn.App. 629, 638, 930 A.2d 58, cert. denied, 284 Conn. 939, 937 A.2d 695 (2007) ; State v. McCulloch, 24 Conn.App. 146, 148, 585 A.2d 1271 (1991). We are mindful that the right to be represented by counsel of one's choosing is a constitutional right. See Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 77 L.Ed. 158 (1932) ; State v. Peeler, 265 Conn. 460, 470, 828 A.2d 1216 (2003), cert. denied, 541 U.S. 1029, 124 S.Ct. 2094, 158 L.Ed. 2d 710 (2004). The habeas court's revised memorandum of decision contains the following footnote. "[S]ubsequent to [the] original memorandum of decision, but prior to this revised memorandum of decision, the Appellate Court released its decision in another of the codefendant's direct appeals. See State v. Louis, 163 Conn.App. 55, [134 A.3d 648, cert. denied, 320 Conn. 929, 133 A.3d 461] (2016). The facts as found by the jury in that trial, conducted subsequent to the petitioner's and in which Jean Louis and Barjon were tried together, are consistent with those from the petitioner's jury trial.... Louis' theory of defense was that he was merely present at the time of the robbery and that [Adolf's] testimony was not believable. Barjon also claimed that he merely was present at the time of the robbery, that [Adolf] was not credible, and that Jean-Philippe acted alone in order to collect an unpaid debt from [Adolf], who allegedly ran an illegal lottery from the market.... The Appellate Court in a footnote noted that [t]he jury found Barjon guilty of all four charges against him. In a separate trial, a jury found [the petitioner] guilty of robbery in the first degree.... Prior to [Louis'] trial, Jean-Philippe pleaded guilty to both robbery in the first degree and conspiracy to commit robbery in the first degree." (Citations omitted; internal quotation marks omitted.) The habeas court found that the petitioner abandoned his claims that Skyers failed to cross-examine or otherwise challenge adequately Aldof's testimony, failed to cross-examine or otherwise challenge adequately Tavares' testimony, failed to obtain and present exculpatory video surveillance evidence, prepared a defense that relied on the testimony of a witness who would invoke his right not to testify; and, during sentencing, failed to inform the trial court of the sentence imposed on a codefendant who was more culpable than the petitioner. The petitioner abandoned this claim on appeal. The state presented evidence that the firearm that was recovered near the scene was connected to an earlier crime in New Jersey. The statement Ortiz obtained did not indicate that Jean-Philippe was from New Jersey or that he had a criminal history. The petitioner also claims that Jean-Philippe's testimony was harmful because it disclosed that the firearm was traced to New Jersey. That evidence, however, was presented in the state's case-in-chief. "A nine millimeter pistol was discovered on the ground in the vicinity of the trash cans where Santora had apprehended the fleeing suspect. The pistol was taken into evidence and later sent to the firearm and toll mark division of the state forensic science laboratory for testing and analysis. The pistol was examined, test fired and found to be operable. A search of a national database revealed that the pistol had been used in a recent incident in New Jersey." State v. Tilus, supra, 157 Conn.App. at 457-58, 117 A.3d 920.

12490416

Richard BUEHLER v. Lilach BUEHLER

Buehler v. Buehler

2017-08-08

AC 38740.

1108

1112

167 A.3d 1108

167

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.022978+00:00

Fastcase

Richard BUEHLER v. Lilach BUEHLER

Richard BUEHLER v. Lilach BUEHLER AC 38740. Appellate Court of Connecticut. Argued April 19, 2017 Officially released August 8, 2017 Lilach Buehler, self-represented, the appellant (defendant). Jon T. Kukucka, with whom, on the brief, were Campbell D. Barrett and Johanna S. Katz, for the appellee (plaintiff). Alvord, Prescott and Mullins, Js.

2081

12874

PER CURIAM. The defendant, Lilach Buehler, appeals from the postjudgment order of the trial court denying in part her motion for contempt against the plaintiff, Richard Buehler, after concluding that she had failed to prove by clear and convincing evidence that the plaintiff had wilfully and intentionally violated a clear and unambiguous order regarding payment for their children's extracurricular activities. On appeal, the defendant claims that the court improperly determined that the extracurricular expenses were unreasonable because there had been no meaningful discussion between the parties prior to the incurrence of those costs. We conclude that the record is inadequate for our review, and, accordingly, we decline to review this claim and affirm the judgment of the trial court. The record contains the following relevant facts and procedural history. The court, Gordon, J. , dissolved the parties' ten year marriage on June 4, 2008. At the time of the dissolution, the parties had three minor children, aged nine, six, and two. Following a contested trial, the court rendered its judgment orally and entered orders with respect to custody, visitation, child support, alimony, and the division of real and personal property. The order at issue in this appeal provides in relevant part as follows: "The parties shall share equally in the cost of all extracurricular summer camp and lessons for the children, which are not to be unreasonably incurred. ." The parties have filed several postjudgment motions in the years following the dissolution of their marriage, including motions for contempt and motions for modification. On October 7, 2014, the defendant filed the motion for contempt that is the subject of the present appeal. In her motion for contempt, the defendant alleged, inter alia, that the plaintiff wilfully and deliberately failed to pay his one-half share of the children's extracurricular expenses. The defendant requested that the court find the plaintiff in contempt, that the court order him to immediately pay $7135.62 as his "share of the children's activities," and that the court punish him for his contempt, "including incarceration." The court, Colin, J. , scheduled a hearing on the defendant's motion for contempt. It is undisputed that the court heard testimony and admitted exhibits over a four day hearing that commenced on April 22, 2015. The hearing concluded on November 4, 2015, and the court issued its memorandum of decision on November 5, 2015. The relevant portions of the court's decision provide as follows: "The defendant has failed to prove by clear and convincing evidence that the plaintiff wilfully and intentionally violated a clear and unambiguous court order regarding the payment of the children's extracurricular activities and uninsured medical and dental expenses.... As for the defendant's claim for nonpayment of extracurricular activity costs, the defendant's incurrence of these costs without a meaningful prior discussion between the parties leads this court to conclude that the expenses were not reasonably incurred under the facts and circumstances of this case." (Citation omitted.) The defendant, a self-represented party, filed this appeal from the postjudgment ruling on December 14, 2015, and she challenges the court's determination that the extracurricular expenses were unreasonably incurred. The trial court file reflects that the transcript order for the appeal, signed by the defendant on December 14, 2015, placed an order for "[the] [e]ntire transcript for 7/8/15, 7/29/15, 9/9/15, 11/4/15." The court reporter's acknowledgement of the transcript order, filed with this court on February 8, 2016, provides a total page estimate for three days of hearings of 445 pages. The box for an estimated number of pages for July 29, 2015, was left blank. On August 15, 2016, the defendant filed three transcripts for the proceedings that had occurred on July 8, 2015, September 9, 2015, and November 4, 2015. No transcript was filed for April 22, 2015, the first day of the hearing on the defendant's motion for contempt. The defendant filed her appellate brief with this court on August 15, 2016. The plaintiff filed his brief on November 14, 2016, and, as his first argument, stated that this court should decline to review the defendant's claim because she failed to provide an adequate record. Specifically, the plaintiff claimed that there were four days of hearings and that this court had been provided with only three of the four necessary transcripts. The plaintiff identified the missing transcript as being the transcript from the April 22, 2015 hearing. The defendant did not file a reply brief addressing that first argument. We have thoroughly reviewed the file, which contains more than 400 filings, to determine whether the court or the parties ever ordered a transcript of the April 22, 2015 proceedings, the first day of the hearing on the defendant's motion for contempt. At the July 8, 2015 hearing, the court stated that it had the April 22, 2015 transcript. The transcript in the file, however, is merely an excerpt from the April 22, 2015 hearing that sets forth the court's interim orders: "I'm going to stop the hearing and enter the following interim orders. I'll order a transcript of these orders. The hearing is not concluded. These are only interim orders that are being entered pursuant to the court's inherent authority to control its docket and to manage its proceedings. And the purpose of this order is to give me the information that I need to appropriately decide the motion for contempt." (Emphasis added.) Following a discussion of preliminary matters on July 8, 2015, the parties were ready to proceed with their evidence. The court stated: "We left off with [the defendant] on the witness stand I believe. They're in cross-examination if I'm not mistaken. Is that correct?" The parties confirmed that the plaintiff's counsel had been cross-examining the defendant at the time the hearing had been stopped. Neither the excerpt from the April 22, 2015 hearing nor the transcript of the July 8, 2015 hearing discloses at what point the court stopped the hearing and entered interim orders. We do know that the defendant already had completed her direct testimony and was being cross-examined, and the list of exhibits shows that a few exhibits had been admitted by the court on April 22, 2015. The lack of a full transcript from the April 22, 2015 hearing precludes our review of the defendant's claim on appeal. In its memorandum of decision, the trial court stated: "As for the defendant's claim for nonpayment of extracurricular activity costs, the defendant's incurrence of these costs without a meaningful prior discussion between the parties leads this court to conclude that the expenses were not reasonably incurred under the facts and circumstances of this case ." (Emphasis added.) What is reasonable under the circumstances is clearly an issue of fact. The court's decision provides no further explanation of what facts and circumstances the court relied on in reaching its conclusion. We do not have the defendant's testimony on direct examination or cross-examination from the April 22, 2015 hearing. Judge Gordon's June 4, 2008 dissolution order, at issue in this case, also had been the subject of several prior disagreements and motions by the parties. It is possible that, in connection with the present motion for contempt, there had been testimony as to previous interactions between the parties relative to the children's extracurricular expenses. There may have been testimony as to how the parties had been interpreting the language "extracurricular summer camp and lessons" in the June 4, 2008 order. Simply put, we do not know what was discussed, and we will not speculate as to the substance of the defendant's testimony. Practice Book § 61-10 (a) provides: "It is the responsibility of the appellant to provide an adequate record for review. The appellant shall determine whether the entire record is complete, correct and otherwise perfected for presentation on appeal." "The general purpose of [the relevant] rules of practice . [requiring the appellant to provide a sufficient record] is to ensure that there is a trial court record that is adequate for an informed appellate review of the various claims presented by the parties." (Internal quotation marks omitted.) State v. Donald , 325 Conn. 346, 353-54, 157 A.3d 1134 (2017). In Crelan v. Crelan , 124 Conn.App. 567, 571-72, 5 A.3d 572 (2010), this court determined that the plaintiff had provided an inadequate record for review because she had filed a transcript of the court's oral ruling and nothing else. In that case, the plaintiff only provided a transcript of the court's oral judgment rendered on the day following the trial, and never requested or provided a transcript of the prior day's proceedings. Id., at 571, 5 A.3d 572. We concluded: "Under these circumstances, [w]e, therefore, are left to surmise or speculate as to the existence of a factual predicate for the trial court's rulings. Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court. . Without the necessary factual and legal conclusions furnished by the trial court, any decision made by us respecting the plaintiff's claims would be entirely speculative. . As it is not the function of this court to find facts, we decline to review this claim." (Citations omitted; emphasis added; internal quotation marks omitted.) Id., at 571-72, 5 A.3d 572. So too, in the present case, we are lacking a complete record of the trial court proceedings. The hearing was held over four days, but the defendant has provided only three days of transcripts. Accordingly, we decline to review the defendant's claim on appeal. The judgment is affirmed. We also note that, to the extent the defendant has attempted to raise a legal question as to whether the language of the order at issue can be construed to require consultation before extracurricular expenses can be incurred, we decline to review such claim because it was inadequately briefed. The defendant failed to provide this court with an analysis as to the meaning and construction of the order in the dissolution judgment, including citations to relevant case law regarding interpretation of a court's judgment. "It is well settled that [w]e are not required to review claims that are inadequately briefed.... We consistently have held that [a]nalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.... [F]or this court judiciously and efficiently to consider claims of error raised on appeal . the parties must clearly and fully set forth their arguments in their briefs. We do not reverse the judgment of a trial court on the basis of challenges to its rulings that have not been adequately briefed.... The parties may not merely cite a legal principle without analyzing the relationship between the facts of the case and the law cited.... [A]ssignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court." (Internal quotation marks omitted.) Pryor v. Pryor, 162 Conn.App. 451, 458, 133 A.3d 463 (2016). On July 8, 2015, the second day of the hearing, the court stated: "So this is a continuation that started on April 22, 2015, on the defendant's motion for contempt, motion number 409. We started the hearing. I stopped the hearing and ordered some documentation to be provided and exchanged to hopefully make this a more efficient process." On September 9, 2015, the third day of the hearing, the court stated: "By my notes, this is the third day of a hearing on the defendant's motion for contempt, motion number 409, which was dated October 7, 2014. The first day was April 22, and the second day was July 8." On November 4, 2015, the final day of the hearing, the court stated: "So this is day four of our hearing on motion number 409, the defendant's motion for contempt, which started on April 22, then to July 8, then to September 9." At oral argument before this court, the defendant stated that the order related to all of the children's extracurricular activities. The plaintiff argued it applied solely to expenses for summer camp and lessons. It appears that Judge Gordon's order may not have been clear and unambiguous to the parties.

12490415

STATE of Connecticut v. James RAYNOR

State v. Raynor

2017-08-15

AC 38348.

1076

1107

167 A.3d 1076

167

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.022978+00:00

Fastcase

STATE of Connecticut v. James RAYNOR

STATE of Connecticut v. James RAYNOR AC 38348. Appellate Court of Connecticut. Argued April 11, 2017 Officially released August 15, 2017 Alice Osedach, assistant public defender, for the appellant (defendant). Timothy J. Sugrue, assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and David L. Zagaja, senior assistant state's attorney, for the appellee (state). DiPentima, C. J., and Sheldon and Flynn, Js.

15249

91685

SHELDON, J. The defendant, James Raynor, appeals from the judgment of conviction rendered against him following a jury trial on charges of accessory to assault in the first degree in violation of General Statutes § 53a-59(a)(5) and 53a-8, and conspiracy to commit assault in the first degree in violation of General Statutes § 53a-48 and 53a-59(a)(5). On appeal, the defendant claims that (1) there was insufficient evidence to sustain his conviction as an accessory to assault in the first degree; (2) there was insufficient evidence to sustain his conviction of conspiracy to commit assault in the first degree; (3) the trial court abused its discretion in admitting uncharged misconduct evidence as evidence of the defendant's motive and intent to commit the crimes charged against him in this case; and (4) the court improperly denied the defendant's Batson challenge to the state's exercise of a peremptory challenge during jury selection. We affirm the judgment of the trial court. The jury was presented the following facts upon which to base its verdict. On the morning of July 24, 2009, Luis Torres (victim) traveled to 10 Liberty Street in Hartford to purchase heroin from an acquaintance, Alex Torres (Torres). At that time, Torres had known the victim for approximately nine months. Torres testified that on several prior occasions he had sold the victim small amounts of heroin, but on this occasion, for the first time, the victim purchased a large quantity of heroin, a total of 100 bags. When the victim was making this purchase, he told Torres that he intended to sell the drugs in front of the 24 Hour Store near the intersection of Albany Avenue and Bedford Street in Hartford. Upon hearing this, Torres told the victim "to be careful because it's . a bad neighborhood" and that he should "stay away from [that] area." After the victim made his purchase, he parted company with Torres and left Liberty Street. Later that evening, the victim drove to New Britain and picked up his girlfriend's father, Miguel Rosado. Thereafter, in the early morning hours of July 25, 2009, the two men went to the 24 Hour Store on Albany Avenue to purchase beer and food. Upon arriving at the 24 Hour Store, Rosado and the victim spoke with two women, Adrienne Morrell and Karline DuBois, whom they believed to be prostitutes. After learning that they were not prostitutes, Rosado and the victim asked the women whether they could help them purchase "powder," or powder cocaine. Morrell and DuBois agreed, then got into the victim's car and directed the men to Irving Street in Hartford, where the victim purchased an unspecified quantity of cocaine. The four then returned to the 24 Hour Store in the victim's car. Upon returning to the 24 Hour Store, the victim displayed a bag of heroin to DuBois and asked her if she knew "where he could get rid of it," from which DuBois understood him to mean that "[h]e wanted to sell it." DuBois informed the victim that she did not use heroin, and thus she did not know where the victim could sell his drugs. DuBois then stated that she was going "back upstairs" to the apartments above the 24 Hour Store, where local people often gathered to use drugs. The victim asked DuBois if he could join her, but DuBois warned him that he should stay downstairs because "[p]eople don't know you ." Ignoring this warning, the victim stated that he was going to go upstairs with DuBois, to which she responded, "Then you're on your own." Thereafter, the victim, Rosado, Morrell, and DuBois all went upstairs to the apartments above the 24 Hour Store. DuBois recalled that when they reached the apartments, six or seven people were already there, playing cards and getting high. After they entered, Morrell, DuBois and Rosado began to smoke crack cocaine. At the same time, the victim, who was very drunk, began offering heroin to the other occupants of the apartment. As DuBois had predicted, "[n]obody [in the apartment] wanted anything to do with [the victim] because nobody knew him." Shortly after the victim's arrival, a group of three men entered the apartment. DuBois recognized two of the three men as Altaurus Spivey, whom DuBois knew as "S," and Joseph Ward, whom she knew as "Neutron." Although DuBois did not identify the third man by name, she described him as a "bigger black guy." Upon entering the apartment, the three men approached the victim, and S asked, "What are you doing here?" DuBois agreed with the prosecutor's statement that S spoke to the victim "in a tough guy type of way," which she interpreted to mean, "you don't belong up here.... [Y]ou're not going to get rid of nothing. Nobody knows you. Just go." DuBois recalled feeling a growing tension between the groups and fearing that "there was going to be a big problem." Thereafter, according to DuBois, S and his group left the apartment, followed a few minutes later by the victim and an unidentified female, who went downstairs together and outside through the back door of the building to the area behind the 24 Hour Store. As this was occurring, at approximately 2 a.m., Dubois, Rosado, and Morrell remained inside the apartment. Several witnesses testified that the 24 Hour Store was often busy at and after 2 a.m. because it was the only store in the area that was open at that time. People would therefore go there to purchase food and drinks after the nearby bars and clubs had closed for the evening. Indeed, Officer Steven Barone of the Hartford Police Department testified that the 24 Hour Store was known by law enforcement as a "nuisance spot," where there was always a high volume of foot traffic and criminal activity between 2 and 4 a.m. Consistent with Barone's testimony, several witnesses stated that many people were both inside and outside of the 24 Hour Store in the early morning hours of July 25, 2009. One regular patron, Marc Doster, who lived on Albany Avenue in an apartment adjacent to the 24 Hour Store, was familiar with people who lived in or frequented the area around Bedford Street and Albany Avenue, including the defendant, who was known on the streets as "Ape." Doster testified that, in the early morning of July 25, 2009, as he was walking from his apartment to the 24 Hour Store, he was approached by the defendant, who asked him if he either knew or was affiliated with the man who was selling drugs behind the 24 Hour Store. Doster stated that he did not. The defendant then told Doster, "don't worry about it," because he was going "to pay [the man] a visit . talk to him." Doster then recalled that, just minutes after this conversation, he saw someone with a gun in his hand running toward the back of the 24 Hour Store. Although Doster could not see the face of the man with the gun because the man was wearing black clothing and had covered his face, he observed that the man was short and heavyset, with a body size and shape that resembled the defendant. As these events were transpiring, another regular patron of the 24 Hour Store, Tyrell Mohown, who had met the victim for the first time that evening, entered the store and purchased a cigar so that he and the victim could smoke marijuana together. After making his purchase, however, when Mohown went behind the 24 Hour Store to meet the victim, he saw the victim surrounded by five men, including Neutron and John Dickerson, nicknamed "Jerk." Mohown testified that although he did not see the defendant or S in that group, he recalled that at least two of the five men had covered their faces with bandanas. Shortly after he came upon the scene, Mohown saw Neutron strike the victim with a baseball bat several times in the upper body. The other men then began punching and kicking the victim, who collapsed on the ground. Mohown then saw Jerk take out a gun and fire one round into the victim's back before the group scattered in different directions. The victim, still conscious but unable to walk, stated that he thought he was about to die and asked Mohown to call an ambulance. Mohown returned to the 24 Hour Store and used a pay phone to report the shooting but, not wanting to get involved, did not identify the shooter. Another witness, Sonesta Reynolds-Campos (Campos), was standing on Bedford Street near the 24 Hour Store when she heard a gunshot from the area behind the store. Upon hearing the gunshot, Campos directed her attention to that area, where she saw a group of approximately six men. Campos recalled that S, Jerk, Neutron, and the defendant were all in the group, and that the defendant was then wearing a hoodie and holding what appeared to be a gun. At approximately 2:25 a.m., the Hartford police received reports of gunshots fired near the intersection of Bedford Street and Albany Avenue. Within minutes of receiving such reports, several Hartford police officers responded to the scene. Officer Barone, one of the first officers to respond, made efforts to secure the scene while other officers tended to the victim. At that time, officers saw multiple lacerations on the victim's face and discovered a single gunshot wound to his back. The victim was then transported to a hospital, where it was determined that the bullet had struck his spine, paralyzing him. Due to the inherent complications of removing the bullet from the victim's spine, physicians were unable to remove the bullet, and thus officers were unable to conduct forensic testing on the bullet at that time. Several days after the shooting, Campos encountered the defendant on Bedford Street. During that encounter, the defendant told Campos, "[I'm] sorry you had to see it," but "[I] had to make an example of him." Although Campos did not ask the defendant what he meant by those remarks, she interpreted them to refer to the recent shooting of the victim behind the 24 Hour Store. On January 7, 2014, at the conclusion of a lengthy investigation of the July 25, 2009 shooting by a state investigating grand jury, the defendant was arrested in connection with the shooting. Thereafter, by way of a long form information, the state charged the defendant with conspiracy to commit assault in the first degree and with being an accessory to assault in the first degree, on which he was later brought to trial before the court, Mullarkey , J. , and a jury of six. The state presented its case-in-chief on November 7, 10, and 12, 2014. On November 12, at the conclusion of the state's case-in-chief, the defendant moved for a judgment of acquittal on both charges. That motion was denied by the court. On November 17, 2014, the jury returned a verdict of guilty on both charges. The following week, on November 21, 2014, the defendant filed a motion to set aside the verdict on the grounds that the verdict was against the weight of the evidence and that the court abused its discretion in admitting evidence of uncharged misconduct. The defendant's motion was subsequently denied by the court. On February 5, 2015, the defendant was sentenced to a total effective term of thirty-seven years of incarceration to be followed by three years of special parole. Thereafter, the defendant filed the present appeal. Additional facts will be set forth as necessary. I SUFFICIENCY OF THE EVIDENCE On appeal, the defendant claims that there was insufficient evidence to sustain either his conviction of accessory to assault in the first degree or his conviction of conspiracy to commit assault in the first degree. We are not persuaded. On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. In July, 2009, the area surrounding Bedford and Brook Streets was under the control of Money Green Bedrock (MGB), a neighborhood street gang. MGB was known to traffic in and sell drugs, including heroin and crack cocaine, throughout the area. Members of MGB included, inter alia, S, Neutron, Jerk, and the defendant. Campos testified that she routinely purchased drugs from the defendant for her own use, and was often asked to "test" the purity of the gang's heroin. As a result of these activities, Campos became acquainted with the defendant and familiar with the defendant's role within MGB, and gained his trust. According to Campos, only members of MGB were permitted to sell drugs in the area around Bedford Street, and drug dealers who did not live in the area were not allowed to do business in the area. In order to enforce their control over this territory, the members of MGB shared certain duties, including conducting drug sales, acting as lookouts, and monitoring the area to make sure no one from outside the group was "hustling on the block ." Several witnesses testified that the defendant had a position of authority within MGB, and was considered an "enforcer" for the gang. According to one witness, Ladean Daniels, the defendant "gave orders, and the people who [are] in that area abide by them." Similarly, Doster testified that the defendant would "handle problems . [p]atrol the area . [and] [e]nforce the rules ." As a result of the gang's assertion of control over drug selling activity in the Bedford Street area, several witnesses, who were also admitted drug dealers, testified that they either did not sell drugs in that neighborhood, because they were not from there, or that they were permitted to sell drugs on MGB's turf because they lived in the neighborhood. Drug dealers in the latter group, including Daniels, operated in the area with the understanding that they would either pay MGB a portion of their profits or purchase the drugs they sold directly from the gang. According to DuBois, it was known throughout the neighborhood that drug dealers who did not abide by these rules would be "dealt with" by MGB. The state introduced testimony from several witnesses to the shooting of the victim behind the 24 Hour Store on July 25, 2009. In the state's case-in-chief, Rosado testified that, when he and the victim returned to the 24 Hour Store from Irving Street, he saw the victim speak with a man known as S, whom the victim claimed to have known from the area. Although Rosado could not remember the exact words that the victim used, he recalled the victim saying that he intended either to purchase marijuana from S or to sell some marijuana to S that night. The jury also heard testimony from Mohown, who stated that he had met the victim for the first time on the evening prior to the shooting and that, prior to the shooting, he had agreed to smoke marijuana with the victim behind the 24 Hour Store. Doster testified, as previously noted, that, "a couple minutes before . the incident happened," the defendant approached him and asked him if he knew or was associated with the man who was selling drugs behind the 24 Hour Store. When Doster said that he did not know the man, the defendant informed him that he was "going to go talk to [that man] and handle it." Doster further testified that, shortly after he and the defendant had that conversation, he saw someone who resembled the defendant running toward the back of the 24 Hour Store holding a gun. Furthermore, Campos testified that, upon hearing gunshots, she observed the defendant standing near the victim, wearing a hoodie and holding a gun. This testimony was corroborated by Daniels, who also claimed to have been near the 24 Hour Store in the early morning hours of July 25, 2009. Daniels stated that, although he did not see who shot the victim, he walked behind the store after hearing gunshots in the area and, at the time, saw the defendant and another man nicknamed "Hollywood" holding guns and standing near the victim, who was lying on the ground. Additionally, several witnesses testified that the group of men who had surrounded the victim during the incident scattered and ran away in different directions after the victim was shot. Daniels further testified that, when he reencountered the defendant near the 24 Hour Store minutes after the shooting and asked him what had happened, the defendant stated, "[d]ude keep coming in the area trying to hustle." Daniels also testified that, after he had returned to the 24 Hour Store and purchased a sandwich, he walked to an apartment building on Brook Street, which runs parallel to Bedford Street. As he arrived at the apartment building, Daniels came upon the group of men he had seen surrounding the victim behind the 24 Hour Store. According to Daniels, the defendant, Jerk, S, and another man were gathered in the yard behind the apartment building. At that time, Daniels overheard the defendant tell the men "to stay off the block and keep their eyes open because that was their work," then warning them to be careful because "the block was hot." Finally, Campos testified that when she spoke with the defendant several days after the shooting, he apologized to her for her having to witness the shooting, but explained to her that he "had to make an example of him." In addition to this evidence, the state introduced, as part of its case-in-chief, evidence of the defendant's involvement, later on that same day, in arranging the shooting of another drug dealer who was selling drugs without permission on MGB's turf. This evidence was offered, over the defendant's objection, to prove his motive and intent to participate in the earlier shooting of the victim behind the 24 Hour Store. On the basis of that evidence, the jury reasonably could have found that, on the night of July 25, 2009, approximately eighteen hours after the victim in this case was shot, another drug dealer, Kenneth Carter, was shot multiple times in the chest on Liberty Street in Hartford, approximately one block away from Bedford Street. After the police had secured the scene of the later shooting, officers recovered, from the interior of Carter's vehicle, a large clear bag filled with small, individually wrapped packages of a green, leafy substance suspected of being marijuana. The officers also found and lifted several latent fingerprints from the outside of the driver's side door of Carter's vehicle. When those fingerprints were entered into the AFIS database, they were found to match known fingerprints on file for Kendel Jules, nicknamed "Jock," who was a known affiliate of MGB. Thereafter, Sergeant Andrew Weaver of the Hartford Police Department testified to his analysis of the cell phone records associated with the cell phones of Carter, the defendant, and Jock. Weaver testified that the cell phone records revealed that the defendant had initiated contact with Carter at 10:10 p.m. that evening and had called him several times over the next thirty minutes, including one call at 10:39 p.m., approximately ten minutes before Carter was shot. Weaver also testified that a call had been placed from the defendant's cell phone to Jock's cell phone approximately seven minutes before Carter was shot. On the basis of his analysis of such call records and the associated cell phone tower, Weaver testified that, at the time of the defendant's final call to Jock before the Carter shooting, Jock's cell phone was in the area of Liberty Street, moving in the general direction of the location of Carter's vehicle. Thereafter, the state presented additional testimony from Daniels, who claimed that he had been present for a conversation between the defendant, Jerk, and Jock in the days following the Carter shooting. Daniels testified that on that occasion, he had gone to the defendant's apartment on Bedford Street to purchase drugs. He further testified that, within three or four minutes of his arrival, the defendant and Jerk began "mocking [Jock about] how he was nervous and afraid when he was supposed to shoot the dude." Although Daniels did not know who the group was referring to, the defendant indicated that the person who was shot "[kept] coming down [here] hustling and he was meeting people in that back street." Daniels also testified that the three men described how they had split up and deployed themselves before the Carter shooting. According to Daniels, the defendant patrolled the area of Garden Street to make sure the coast was clear, while Jock walked to Liberty Street and Jerk positioned himself on Brook Street. The defendant also said that the shooting was "[Jock's'] initiation into the block" and that "if Jock [couldn't] get the job done, Jerk was [there] to help ." With these additional facts in mind, we turn to our standard of review. "It is well settled that a defendant who asserts an insufficiency of the evidence claim bears an arduous burden.... [F]or the purposes of sufficiency review . we review the sufficiency of the evidence as the case was tried . [A] claim of insufficiency of the evidence must be tested by reviewing no less than, and no more than, the evidence introduced at trial.... In reviewing a sufficiency of the evidence claim, we apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury's verdict.... "[T]he jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt.... If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt.... Moreover, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.... It is not one fact . but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. . In evaluating evidence, the [jury] is not required to accept as dispositive those inferences that are consistent with the defendant's innocence.... The [jury] may draw whatever inferences from the evidence or facts established by the evidence [that] it deems to be reasonable and logical.... "[O]n appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury's verdict of guilty.... Claims of evidentiary insufficiency in criminal cases are always addressed independently of claims of evidentiary error." (Citation omitted; internal quotation marks omitted.) State v. Chemlen , 165 Conn.App. 791, 816-18, 140 A.3d 347, cert. denied, 322 Conn. 908, 140 A.3d 977 (2016). "[T]he trier of fact may credit part of a witness' testimony and reject other parts.... [W]e must defer to the jury's assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude ." (Internal quotation marks omitted.) State v. Grant , 149 Conn.App. 41, 46, 87 A.3d 1150, cert. denied, 312 Conn. 907, 93 A.3d 158 (2014). With these legal principles in mind, we address each the defendant's sufficiency claims. A Accessory to Assault in First Degree The defendant first claims that there was insufficient evidence to sustain his conviction as an accessory to assault in the first degree in violation of § 53a-59(a)(5) and 53a-8. "It is well established in this state that there is no such crime as being an accessory.... Rather, the accessory statute, General Statutes § 53a-8, merely provides an alternative theory under which liability for the underlying substantive crime may be proved." (Citation omitted; internal quotation marks omitted.) State v. Hopkins , 25 Conn.App. 565, 568-69, 595 A.2d 911, cert. denied, 220 Conn. 921, 597 A.2d 342 (1991). "[ Section] 53a-8(a) provides: A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender." (Internal quotation marks omitted.) State v. Hines , 89 Conn.App. 440, 447, 873 A.2d 1042, cert. denied, 275 Conn. 904, 882 A.2d 678 (2005). To convict a defendant of a crime on the theory of accessorial liability under this statute, the state must prove both that a person other than the defendant acting as a principal offender, committed each essential element of that crime, and that the defendant, acting with the mental state required for the commission of that crime, solicited, requested, commanded, importuned or intentionally aided the principal offender to engage in the conduct constituting that crime. "Since under our law both principals and accessories are treated as principals . if the evidence, taken in the light most favorable to sustaining the verdict, establishes that [the defendant] . did some act which . directly or indirectly counseled or procured any persons to commit the offenses or do any act forming a part thereof, then the [conviction] must stand." (Internal quotation marks omitted.) Id. ; see also State v. Diaz , 237 Conn. 518, 543, 679 A.2d 902 (1996). A person is guilty of assault in the first degree under § 53a-59(a), as a principal offender, "when . (5) with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of the discharge of a firearm." Thus, to prove a person guilty as a principal of assault in the first degree, the state must prove beyond a reasonable doubt that (1) the person caused physical injury to another person; (2) that he did so while acting with the intent to cause physical injury to the other person or a third person; and (3) that he caused such physical injury to the other person by means of the discharge of a firearm. See State v. Collins , 100 Conn.App. 833, 843, 919 A.2d 1087, cert. denied, 284 Conn. 916, 931 A.2d 937 (2007). In light of those requirements of proof to establish a person's guilt as a principal offender under § 53a-59(a)(5), establishing a defendant's guilt as an accessory to that offense under § 53a-59(a)(5) and 53a-8 requires proof of the following essential elements: (1) that the principal offender violated § 53a-59(a)(5) by causing physical injury to another person by means of the discharge of a firearm while acting with the intent to cause physical injury; (2) that the defendant solicited, requested, importuned or intentionally aided the principal offender to engage in the conduct by which he violated § 53a-59(a)(5) ; and (3) that when the defendant intentionally aided the principal offender to engage in such conduct, the defendant was acting with the intent to cause physical injury to another person. At the outset, we note that the parties agree that the victim was, in fact, physically injured by means of the discharge of a firearm by a principal offender other than the defendant, to wit; the defendant's fellow gang member, Jerk. They agree as well that, when Jerk shot the victim in the back after he and others had beaten and kicked him, he was committing the offense of assault in the first degree in violation of § 53a-59(a)(5). The defendant argues, however, that there was insufficient evidence to sustain his conviction as an accessory to assault in the first degree because the state failed to prove beyond a reasonable doubt that, while acting with the intent to cause physical injury to the victim, he requested, commanded, or aided another to cause physical injury to the victim by means of the discharge of a firearm. In support of his argument, the defendant asserts that at least one eyewitness, Mohown, had testified that the defendant was not present when the victim was shot. The defendant further argues that, even if the jury were to have credited other witnesses who placed him at the scene of the shooting, there was no testimony that the defendant verbally ordered the shooting, encouraged the shooter to shoot, or provided the shooter with the gun used in the shooting. The defendant thus argues that the evidence adduced at trial, even when viewed in the light most favorable to the state, proved that he merely was present when the shooting occurred, but that a person's mere presence at the scene of a crime does not, by itself, establish that person's liability as an accessory to the commission of that crime. The state disagrees, asserting that the jury was given ample circumstantial evidence from which it reasonably could have inferred that the defendant solicited, ordered, and/or intentionally aided Jerk to assault the victim by discharging a firearm. In support of its position, the state relies, more particularly, upon the following evidence: that the defendant was affiliated with the MGB, a gang of drug sellers who attempted to control all drug selling activity in the area of Bedford Street and Albany Avenue; that the defendant was "an enforcer" of the gang's drug selling monopoly in the area; that the defendant had made statements to Doster before the shooting, indicating that he personally was "going to go talk to" the victim, whom he referred to as the man selling drugs behind the 24 Hour Store, and thereby "handle" the problem arising from the victim's unwelcome presence and activity on MGB turf; that several MGB members accosted the victim inside of the apartments above the 24 Hour Store shortly before the shooting; that the defendant, while armed with a gun, joined with several other MGB members in confronting and surrounding the victim just before he was beaten, kicked, and ultimately shot in the back; that the defendant made inculpatory statements to Daniels about the shooting just minutes after it occurred; and that the defendant made inculpatory statements to Campos days after the shooting, apologizing to her for her having witnessed the shooting but explaining why it had happened, specifically, that he needed "to make an example" of the victim. The state thus argues that the record is replete with evidence from which the jury reasonably could have found that the defendant was guilty as an accessory to the commission of assault in the first degree. Viewing the evidence in the light most favorable to sustaining the conviction, we conclude that there was sufficient evidence for the jury to find beyond a reasonable doubt that the defendant aided the principal shooter to cause the victim physical injury by discharge of a firearm, and thus to commit assault in the first degree. See State v. Bennett , 307 Conn. 758, 766, 59 A.3d 221 (2013). First, although the defendant's presence at the scene of the shooting is not a necessary factual predicate to accessorial liability, there was ample evidence from which the jury reasonably could have found that the defendant was present for the shooting of the victim. See, e.g., State v. Conde , 67 Conn.App. 474, 486, 787 A.2d 571 (2001) ("[o]ne may be an accessory even though he [was] not present" for commission of crime [internal quotation marks omitted] ), cert. denied, 259 Conn. 927, 793 A.2d 251 (2002). Although Mohown claimed that he did not see the defendant in the group of men that attacked the victim that night, the defendant fails to recognize that the jury was free to "credit part of [Mohown's] testimony and reject other parts." (Internal quotation marks omitted.) State v. Grant , supra, 149 Conn.App. at 46, 87 A.3d 1150. In that respect, the jury reasonably could have found that Mohown's testimony that at least two men in that group were wearing bandanas over their faces supported Doster's testimony that he saw someone whom he believed to be the defendant, with his face covered, running toward the back of the 24 Hour Store with a gun in his hand moments before the shooting occurred. See State v. Allen , 289 Conn. 550, 559, 958 A.2d 1214 (2008) ("[i]f there is any reasonable way that the jury might have reconciled the conflicting testimony before them, we may not disturb their verdict" [internal quotation marks omitted] ). Furthermore, both Campos and Daniels testified that moments after the shooting, they observed the defendant standing near the victim, holding a gun. Thus, the jury reasonably could have found that the defendant was, in fact, present for the shooting of the victim. The defendant maintains, however, that even if the jury found that he was present for the shooting, mere presence, by itself, is insufficient to support a finding that the defendant aided the principal offender. See, e.g., State v. Conde , supra, 67 Conn.App. at 486, 787 A.2d 571. Although we agree with that general statement of law, the defendant overlooks that the jury reasonably could have credited the testimony of Doster, Campos, and Daniels, each of whom testified that the group of men surrounded the victim, the defendant was standing near the victim and holding a gun in his hand, and that, while S struck the victim with a bat, the other men punched and kicked the victim before he was shot. From this evidence, the jury reasonably could have inferred that the defendant was armed with a gun, prevented the victim from leaving the immediate area, and participated in the physical beating of the victim immediately prior to the shooting. Such an inference belies the defendant's claim that he was "merely present" for the shooting. To the contrary, it permits a reasonable inference that the defendant aided the principal by preventing the victim from leaving the area and, as a result of the physical beating, immobilizing the victim before he was shot in the back. As discussed in the preceding paragraphs, however, the evidence must demonstrate not only that the defendant aided the principal, but that such aid was provided with "criminal intent and community of unlawful purpose with the perpetrator of the crime ." (Internal quotation marks omitted.) State v. Sargeant , 288 Conn. 673, 680, 954 A.2d 839 (2008). "To act intentionally, the defendant must have had the conscious objective to cause the [desired result] . Intent is generally proven by circumstantial evidence because direct evidence of the accused's state of mind is rarely available.... [T]he defendant's state of mind at the time of the shooting may be proven by his conduct before, during and after the shooting. Such conduct yields facts and inferences that demonstrate a pattern of behavior and attitude toward the victim by the defendant that is probative of the defendant's mental state." (Citation omitted; internal quotation marks omitted.) State v. Bennett , supra, 307 Conn. at 766, 59 A.3d 221. Viewing the evidence in the light most favorable to sustaining the conviction, we conclude that there was sufficient evidence for the jury to find, beyond a reasonable doubt, that the defendant intended that the principal commit assault in the first degree. First, the jury reasonably could have credited testimony that the defendant was an "enforcer" for MGB who held a position of authority within the gang. That testimony, combined with Daniels' testimony that the defendant stated that the Carter shooting was Jock's initiation into the gang and that Carter had been shot because he "[kept] coming down there hustling and . meeting people in that back street," supports an inference that the defendant had the ability and motive to order other members to shoot rival drug dealers, including the victim in this case. The jury also could have credited Doster's testimony that, minutes before the shooting, the defendant told him that he "was going to talk to [the man dealing drugs behind the 24 Hour Store] and handle it." Given the organization's motive to use deadly force against unwelcome drug dealers as a means of enforcing the gang's exclusive control over drug sales in the Bedford Street area, the jury reasonably could have inferred that the defendant's comments prior to the shooting in this case, in addition to the testimony that the defendant was holding a gun in his hand before the shooting, demonstrated the defendant's intent to use or to have someone else use a firearm to assault the victim. As discussed in the preceding paragraphs, "[t]he trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.... This does not require that each subordinate conclusion established by or inferred from the evidence, or even from other inferences, be proved beyond a reasonable doubt ." (Citation omitted; internal quotation marks omitted.) State v. Garner , 270 Conn. 458, 472, 853 A.2d 478 (2004). Finally, the jury heard evidence about inculpatory statements made by the defendant in the minutes and days following this shooting. For instance, Daniels testified that, minutes after the shooting, when he asked the defendant what had led to the shooting, the defendant responded, "[d]ude keep coming in the area trying to hustle." Similarly, Campos testified that, several days after the shooting, the defendant made unsolicited statements to her, apologizing that she "had to see [that]" and explaining that "he had to make an example out of [the victim]." On the basis of such evidence, the jury reasonably could have found that the defendant intentionally played an active and authoritative role in causing other gang members to come to the scene, to confront the victim, and ultimately to shoot him to teach him and others the lesson that they were not to sell drugs without permission on MGB's turf. Accordingly, viewing the evidence in the light most favorable to sustaining the conviction, the jury reasonably could have found that "the cumulative effect of all the evidence [proved] the defendant guilty of all the elements of the crime charged beyond a reasonable doubt." (Internal quotation marks omitted.) State v. Chemlen , supra, 165 Conn.App. at 817, 140 A.3d 347. B Conspiracy to Commit Assault in First Degree The defendant next claims that there was insufficient evidence to sustain his conviction of conspiracy to commit assault in the first degree in violation of § 53a-48 and 53a-59(a)(5). "To establish the crime of conspiracy, it must be shown that an agreement was made to [commit assault in the first degree], that the conspirators intended [the victim be physically injured by means of the discharge of a firearm] and that the agreement was followed by an overt act in furtherance of the conspiracy.... Conspiracy is a specific intent crime, with the intent divided into two elements: (a) the intent to conspire and (b) the intent to commit the offense which is the object of the conspiracy.... Thus, [p]roof of a conspiracy to commit a specific offense requires proof that the conspirators intended to bring about the elements of the conspired offense." (Internal quotation marks omitted.) State v. Blaine , 168 Conn.App. 505, 511, 147 A.3d 1044 (2016). "While the state must prove an agreement [to commit assault in the first degree], the existence of a formal agreement between the conspirators need not be proved because [i]t is only in rare instances that conspiracy may be established by proof of an express agreement to unite to accomplish an unlawful purpose.... [T]he requisite agreement or confederation may be inferred from proof of the separate acts of the individuals accused as coconspirators and from the circumstances surrounding the commission of these acts." (Internal quotation marks omitted.) State v. Grant , supra, 149 Conn.App. at 46-47, 87 A.3d 1150. "[W]hen determining both a defendant's specific intent to agree and his specific intent that the criminal acts be performed, the jury may rely on reasonable inferences from facts in the evidence and may develop a chain of inferences, each link of which may depend for its validity on the validity of the prior link in the chain.... Accordingly, the defendant's state of mind may be proven by his conduct before, during and after the shooting." (Citation omitted; internal quotation marks omitted.) State v. Williams , 94 Conn.App. 424, 433, 892 A.2d 990, cert. denied, 279 Conn. 901, 901 A.2d 1224 (2006). On appeal, the defendant asserts that there was insufficient evidence to support the state's theory that he "got the ball rolling" and agreed with the shooter to commit assault in the first degree. In support of this position, he argues that the record lacks any evidence that he entered into an agreement with the shooter, or that he ordered or encouraged the shooter to commit the crime of assault in the first degree. Moreover, the defendant contends that there was a substantial lapse of time between his alleged statement to Doster about "going to go talk to . and handle" the person behind the 24 Hour Store and the time of the shooting. The defendant further asserts that his postshooting statements to Campos "did not prove that [he] had anything to do with the crime; they are simply statements expressing his opinion and are not inculpatory." As such, the defendant argues that "it is just as likely [that] the defendant's brother, who was also a 'leader,' or any other member [of MGB] who was an 'enforcer,' got the 'ball rolling' or conspired with the shooter." The defendant thus argues that any inference that he conspired with the shooter was unreasonable and unsupported by the evidence, and that the jury's verdict was the product of "speculation and conjecture." Viewing the evidence in the light most favorable to sustaining the conviction, we conclude that there was sufficient evidence from which the jury reasonably could have found that the defendant entered into an agreement to commit assault in the first degree. As discussed in the preceding paragraphs, the jury was presented with evidence concerning the Carter shooting on Liberty Street. From that evidence, the jury reasonably could have inferred that the defendant, as an "enforcer" for MGB, was expected to, and thus had motive to, use force against unsanctioned drug dealers operating in the area of Bedford Street and Albany Avenue, including the victim. In fact, the jury heard testimony that the defendant provided nearly identical reasons, consistent with that motive, for the Carter shooting and the shooting of the victim in this case. As to Carter, the defendant explained to Daniels that he had been shot because he "[kept] coming down there hustling, and he was meeting people in that back street"; similarly, as to the victim in this case, the defendant stated that the shooting had occurred because "[the] dude [kept] coming in the area trying to hustle." Additionally, Doster testified that just a few minutes before the victim was shot, the defendant approached him and asked if he knew or was affiliated with the man selling drugs behind the 24 Hour Store. When Doster stated that he did not know who was selling drugs behind the store, the defendant told him not to "worry about it" because he was "going to go talk to [the person dealing drugs behind the store] and handle it." From this evidence, the jury reasonably could have inferred that the defendant had a motive to agree with other MGB members to cause physical injury to the victim in this case by means of the discharge of a firearm. Moreover, the jury was presented with evidence and testimony from which it reasonably could have inferred that the defendant not only had motive to enter into a conspiracy, but that he played an active role in the planning and coordination of the assault of the victim. For instance, Rosado testified that S, a known member of MGB, spoke to the victim and planned to either purchase marijuana from him or to sell marijuana to him before the shooting. That testimony, coupled with Mohown's testimony that he intended to meet the victim behind the 24 Hour Store to smoke marijuana, would support a reasonable inference that S, someone known by Daniels to follow the defendant's orders, had attempted to lure the victim behind the 24 Hour Store where other MGB members were waiting to confront him. Indeed, this point was raised during the state's closing argument, wherein the prosecutor asked the jury to scrutinize the defendant's assertion that there was no agreement between the defendant and the shooter that evening and, in so doing, to consider whether it was mere coincidence that the defendant and four other members of MGB arrived at the same time, at the same location behind the 24 Hour Store, then joined together in beating the victim before one of their number shot him, or whether this was circumstantial evidence that the group had coordinated the confrontation with an interloping drug dealer on their gang's turf. Furthermore, the jury heard testimony from several witnesses that after the victim was shot, the group of men scattered and ran off in different directions, but that several minutes later, they reconvened in a different location behind a building on Brook Street, where the defendant instructed them to be careful because "the block was hot." In crediting that testimony, the jury reasonably could have inferred that the defendant had arranged where the group would rendezvous after the assault was completed and, from that reasonable inference, it also could have inferred that the assault had been orchestrated, at least in part, by the defendant. See State v. Vessichio , 197 Conn. 644, 657, 500 A.2d 1311 (1985) (holding that although evidence of conspiracy "not overwhelming," jury reasonably could rely on evidence that defendant picked up coconspirators in van after completed drug sale to support finding that defendant was involved in conspiracy to sell cocaine), cert. denied, 475 U.S. 1122, 106 S.Ct. 1642, 90 L.Ed.2d 187 (1986) ; see also State v. Stellato , 10 Conn.App. 447, 454, 523 A.2d 1345 (1987) (jury may rely on defendant's conduct prior to, during, and after completed crime to infer defendant was member of conspiracy). Next, we conclude that there was sufficient evidence from which the jury reasonably could have found that the defendant intended that a member of the conspiracy cause physical injury to the victim by means of the discharge of a firearm. We reiterate that the jury heard evidence concerning the Carter shooting and, from that evidence, reasonably could have inferred that the defendant had both the motive and the ability to order other MGB members to shoot rival drug dealers as a means of exercising exclusive control of drug sales in the area of Bedford Street and Albany Avenue. Additionally, Doster testified that a few minutes after he spoke with the defendant, he observed someone of the defendant's height and shape wearing dark clothing, holding a gun, covering his face, and running toward the area behind the 24 Hour Store. From this testimony, the jury reasonably could have inferred that it was the defendant whom Doster had observed, and that the defendant was holding a gun and had taken steps to conceal his identity from potential witnesses to the shooting. The jury also heard from several witnesses that the defendant, Jerk and Hollywood were armed with guns and, from such evidence, reasonably could have inferred that the defendant intended that at least one member of the conspiracy would discharge a gun during the assault of the victim. Last, the jury reasonably could have considered the fact that the defendant did not summon medical assistance for the victim and, from that evidence, inferred that the defendant intended to cause physical injury to the victim by means of the discharge of a firearm. See State v. Fuller , 58 Conn.App. 567, 575, 754 A.2d 207, cert. denied, 254 Conn. 918, 759 A.2d 1026 (2000). "When determining both a defendant's specific intent to agree and his specific intent that the criminal acts be performed, the jury may rely on reasonable inferences from facts in the evidence and may develop a chain of inferences, each link of which may depend for its validity on the validity of the prior link in the chain." (Internal quotation marks omitted.) State v. Williams , supra, 94 Conn.App. at 433, 892 A.2d 990. "[W]e do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury's verdict of guilty." (Internal quotation marks omitted.) State v. Chemlen , supra, 165 Conn.App. at 816, 140 A.3d 347. Accordingly, we conclude that, in viewing the evidence in the light most favorable to sustaining the conviction, there was sufficient evidence to support the jury's finding that the defendant was guilty of conspiracy to commit assault in the first degree. II UNCHARGED MISCONDUCT EVIDENCE The defendant next claims that the court abused its discretion in admitting uncharged misconduct evidence related to (1) MGB's practices of selling drugs and enforcing its exclusive control over the drug trade in its territory, and (2) the Carter shooting, as evidence of the defendant's motive to use force and violence against the victim in this case. The defendant asserts that such evidence was not relevant but, even if it had some probative value, its probative value was substantially outweighed by its prejudicial effect. For the sake of continuity, we adopt the court's and parties' references to these separate forms of uncharged misconduct as "the drug evidence" and "the Carter evidence." The following factual and procedural history is necessary for our resolution of these claims. On November 5, 2014, two days before trial, the court held a hearing on the state's motion to admit other crimes evidence. At the hearing, the state indicated that it intended to offer evidence as to "the defendant's drug trafficking in the area in question . his control of the area . his association with a gang known as [MGB] . and the enforcement of that area from individuals who would encroach on that drug trafficking turf." The state further indicated at that time that it intended to offer the Carter evidence during its case-in-chief. In support of its motion, the state made the following offer of proof: as a matter of logistics, the state intended to devote the first two days of trial to presenting evidence of the shooting of the victim in this case. Thereafter, on the third day of evidence, it would present the Carter evidence. Such evidence would include testimony from Officer Michael Creter, the first Hartford police officer to respond to the scene of the Carter shooting, and Detective Claudette Kosinski, who, while processing the vehicle in which Carter was shot, recovered latent fingerprints that ultimately were linked to MGB member Jock. The state also stated that it intended to present testimony from Vachon Young, who had spoken to Carter minutes before the shooting. The state claimed that Young would testify that Carter had told him that he "was going to the area of Liberty Street to sell the defendant some drugs." The state then indicated that it would call Daniels to testify about the conversation he overheard while inside the defendant's apartment several days after the Carter shooting, in which the defendant acknowledged his planning of the Carter shooting, which he described as Jock's initiation into the gang. In addition, the state indicated that it would call Rosado to testify that just before the victim was shot, "an identified associate or coconspirator, [S], asked [the victim] to go to the back of the 24 hour Store so that he could buy [drugs] from [the victim]." The state thus argued that the setup of the victim's shooting, inducing the victim, through S, to go behind the 24 Hour Store either to sell or buy drugs, was "strikingly similar" to the defendant's conduct before the Carter shooting, whereby the defendant "[summoned Carter] to the Liberty Street area so that he could buy from him." The state next indicated that it would call James Stephenson, a former supervisor in the state forensics laboratory, who would testify that he compared the bullets used in the Carter shooting with the bullet recovered from the victim, and concluded by forensic analysis that the same firearm had been used in both shootings. Last, the state indicated that it would present the testimony of Weaver, who would discuss the cell phone records of the participants in the Carter shooting and the associated cell tower logs. In response to this offer of proof, defense counsel informed the court that, although he had received the police reports submitted by the state months before the trial, the state's written notice of intent to admit such evidence was vague because it failed to specify what subsection of the Connecticut Code of Evidence the state was relying upon to establish its admissibility. Without a more definite statement from the prosecutor as to the applicable subsection of the Connecticut Code of Evidence, defense counsel claimed that "it [was] a little hard to fashion an objection." Defense counsel then commented that "notwithstanding the fact that bullets were fired from the same gun . eighteen or nineteen hours apart, I don't see the relevance . [t]he description of the person . doesn't fit my client . [and] there was a claim that what happened to . Carter was a result [of] a dispute over a woman. So, I, you know . relevance, common scheme, whatever the claim may . I don't think it crosses the relevance threshold, number one. Number two . if it is able to crawl over the relevance threshold, barely, I see a tremendous prejudicial effect that far outweighs whatever minute probative value . is there. And that's a concern of mine. But I need specificity, and that's the whole point of me filing the motion for . notice of the uncharged misconduct ." Thereafter, by agreement of the parties, the court withheld its ruling on the admissibility of the proffered misconduct evidence to afford the state two more days to identify what exception to the Connecticut Code of Evidence on which it would rely in offering the evidence detailed in its offer of proof. Noting his agreement with the court's suggestion, defense counsel stated, "[my] preference . would be to wait [until] Friday, and the rationale is just because of the additional names that were disclosed, the cases that [the state] is relying on, it would afford me an opportunity to see what I can do about it.... Based on the information disclosed today, I may have something for the court, possibly by tomorrow. Obviously, I'd like to get it to the court in advance of Friday." Two days later, in accordance with the court's instructions, the state filed an amended notice of intent to offer other crimes evidence. In that filing, the state expressly stated that the Carter evidence would be offered as evidence of the defendant's intent and motive to conspire to participate and to aid the principal in shooting the victim in this case. The defendant did not file a motion in limine seeking the exclusion of such evidence. On the second day of its case-in-chief, November 10, 2014, the state, outside the presence of the jury, reasserted its intention to introduce the drug evidence and the Carter evidence. Specifically, the state asserted that this evidence was relevant to the defendant's motive for being involved in shooting the victim, as well as to his control of the Bedford Street area. In addition, the state indicated its intention to offer evidence of a third instance of uncharged misconduct, which involved the defendant's separate alleged assault of a man named Nigel, because he had been selling drugs in the area controlled by MGB without the gang's permission. In response to the state's amended notice of intent, defense counsel remarked: "I did have a chance to read [case law] over the weekend and I appreciate the opportunity to better get a handle on . the law surrounding the misconduct. I do understand the claim of relevancy by the state's attorney. However, I . do believe, in particular, with regard to the alleged bad act involving . Nigel, as well as the . involvement by my client in the [Carter] shooting, that . whatever probative value is achieved through the introduction of that evidence, it's far outweighed by the prejudicial impact. It's . overwhelming, in my opinion.... And although I do maintain my objection, and I'd ask the court to rule in my favor, I would ask the court, if the court intends to allow this testimony and this evidence in, to give the appropriate . limiting instructions throughout the introduction of this evidence as to what it's offered for and to the extent possible, obviously, to minimize the prejudicial aspects of . the evidence, in particular, the . [Carter] . evidence because it is . shocking and . my concern is . that the jury will take that evidence, disregard the actual evidence from this case and convict my client for his conduct or alleged conduct in that case." The court subsequently ruled that it would allow limited uncharged misconduct evidence regarding the defendant's membership in MGB and its control of the drug trade in the Bedford Street area. The court further stated: "[A]s far as the shooting on Liberty Street is concerned, I have been weighing those factors for quite some time since I got this case, I guess, because there's so much material here provided through the grand jury investigation. And the fact that each of the charges in this information against [the defendant] are specific intent crimes, as opposed to general intent, makes the evidence, particularly the ballistics evidence, very relevant, highly probative. And, properly sanitized, I'm going to allow in evidence on the Liberty Street shooting that occurred eighteen hours after the incident that we're trying. As far as exactly what we need to sanitize, I want to go through that with you gentlemen in some detail. Of course, the fact that someone was killed at that scene is out." Last, the court excluded evidence of the alleged assault on Nigel on grounds of its prejudicial effect on the defendant and lack of notice. Shortly thereafter, in the presence of the jury, the prosecutor asked Campos whether there was "a certain . group" that hung out on Bedford Street and if it was known by a particular name. The defendant objected and asked to be heard outside the presence of the jury. The defendant then requested clarification as to whether the court's decision to admit the drug evidence included a ruling that the name of the gang was also admissible. The court clarified that, on the basis of its earlier ruling, the name of the gang was admissible. The defendant raised no further objections to the admission of such evidence. That afternoon, after the testimony of Campos and Doster, both of whom testified without further objection as to the drug evidence; see part II A of this opinion; the court, sua sponte, instructed the jury that "[w]hen the state offers evidence of . misconduct, it's not being admitted to prove the bad character, propensity or criminal tendencies of the defendant. It's being admitted solely to show intent and motive. You may not consider such evidence as establishing a predisposition on the part of the defendant to commit any of the crimes charged or demonstrate a criminal propensity. You may consider such evidence if you believe it and further find that it logically, rationally, and conclusively supports the issues for which it is being offered by the state, but only as it may bear on the issues of motive and intent, and each of those legal concepts you will get an instruction on. "On the other hand, if you don't believe the evidence or even if you do, you find it's not logically, rationally and conclusively support on the issues of motive and intent, you may not consider that testimony for any other purpose. You may not consider evidence of other misconduct of the defendant for any purpose, other than the ones I just told you about because it could predispose you to critically believe the defendant may be guilty of the offenses charged here merely because of the other alleged misconduct. So, you may consider that evidence, if you credit it, only on the issues of intent and motive." On the third day of trial, November 12, 2014, the state concluded its presentation of the evidence regarding the shooting of the victim. Thereafter, the court informed the jurors that the state was "going to shift gears in this case" and asked the jury to take a short recess. Outside the presence of the jury, the court inquired as to the order of the state's witnesses and stressed that the state should take great care not to reveal that Carter had died on the night of the shooting. By agreement of the parties, the state informed the court that it would ask leading questions to its witnesses and instruct them that they were not to reveal that Carter had been killed, but only that he had been shot. The court then summoned the jury back to the courtroom, after which it stated that "[t]he reason I said we're switching gears, ladies and gentlemen, is, most of the evidence that's remaining in the state's case-in-chief, as far as I know, concerns a different incident, and I didn't want you to be confused. And the state will be offering this evidence, and I will be giving you a specific instruction about it.... [T]here will be some evidence in this case of other acts of misconduct. It's not being admitted to prove bad character, propensity of criminal tendencies of the defendant. It's being entered simply to show intent and motive related to the crimes that are being tried in this case, and you may not consider such evidence as establishing a predisposition on the part of the defendant to commit any of the crimes charged in our information, nor to demonstrate a criminal propensity. "You may consider such evidence if you believe it and further find it logically, rationally and conclusively supports the issues for which it is being offered by the state. But it bears only on the issues of intent and motive concerning the charges that arise from the Bedford Street incident. And you may not consider evidence of other misconduct of the defendant for any purpose other than the ones I just told you because if you do, it may predispose your mind to . uncritically believe the defendant may be guilty of the offense here charged, merely because of other misconduct. For this reason, you consider it only on the issues of intent and motive." Thereafter, in accordance with its offer of proof, the state presented, inter alia, the testimony of Creter, Kosinski, Weaver, Stephenson and Daniels, the substance of which has been set forth previously in this opinion. Only Young, of the witnesses mentioned in the state's offer of proof, did not testify. At the conclusion of the state's case-in-chief that afternoon, the court reinstructed the jury that evidence regarding uncharged misconduct of the defendant was "admitted . only to establish . his intent, motive in the matter involving [the victim]. You may not consider such other evidence as establishing a predisposition on the part of the defendant to commit any crimes charged or to demonstrate a criminal propensity.... If you don't believe the evidence or even if you do, and you find that it does not logically, rationally, and conclusively support on the issues of motive, intent in the [present] matter . then you may not consider it for any purpose." With these additional facts in mind, we address each of the defendant's claims. A Drug Evidence The defendant first claims that the court abused its discretion by admitting the drug evidence in this case because the fact that the defendant was a member of a drug selling gang was not relevant to his motive or intent to harm the victim or to conspire with or aid others to do so in this case, for which it was offered and admitted at trial. The state responds that this claim cannot be reviewed on appeal because the defendant failed to preserve the claim before the trial court. Rather, the state argues, the defendant objected only to the Carter evidence and to evidence of the separate assault of Nigel. In response, the defendant argues that he objected to the introduction of the drug evidence before and during trial, and thus that the claim was properly preserved for our consideration. We agree with the state. "It is well established that generally this court will not review claims that were not properly preserved in the trial court.... Where a defendant fails to seek review of an unpreserved claim under either [ State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989) ] or the plain error doctrine [set forth in Practice Book § 60-5 ], this court will not examine such a claim." (Citation omitted; internal quotation marks omitted.) State v. Epps , 105 Conn.App. 84, 92, 936 A.2d 701 (2007), cert. denied, 286 Conn. 903, 943 A.2d 1102 (2008). Here, the defendant did not object either to the relevance or the prejudicial effect of the drug evidence. Accordingly, we decline to reach the merits of that claim. B Carter Evidence The defendant next claims that the court abused its discretion in admitting the Carter evidence because that evidence was not relevant either to his motive to commit or to any intent required for the commission of any charged offense. Alternatively, the defendant argues that, even if the Carter evidence was somehow relevant to his motive or intent, its probative value was outweighed by its prejudicial effect. In support of this claim, the defendant argues that the facts of the Carter shooting were so dissimilar from those of the present case that it had little, if any, bearing on the issue of the defendant's alleged motive or intent. The defendant further argues that the violent nature of the Carter shooting created an inherent risk that it would unduly arouse the jurors' emotions or that the jury would use it as evidence of the defendant's propensity to commit violent acts. On those grounds, the defendant claims that the court abused its discretion in admitting the Carter evidence, and thus that he is entitled to a new trial. The state disagrees, arguing that the defendant failed to preserve his claim that the Carter evidence was not relevant to the issues of motive or intent. Rather, the state argues, the defendant objected to the Carter evidence only on the ground that its probative value was outweighed by its prejudicial effect. The state thus argues that our review of the defendant's claim is confined to that narrow issue. The defendant responds that, by virtue of his remarks to the court on November 5, 2014, and his subsequent remarks on November 10, 2014, that he "maintained his objection" on the ground of relevance, and thus the issue of its relevance was properly preserved. We agree with the state. As stated in part II A of this opinion, an appellate court is not bound to review a claim unless it was "distinctly raised at the trial or arose subsequent to the trial...." Practice Book § 60-5 ; see also State v. Rogers , 199 Conn. 453, 460-61, 508 A.2d 11 (1986). Furthermore, it is well settled that "[o]ur review of evidentiary rulings made by the trial court is limited to the specific legal ground raised in the objection [to the trial court].... This court reviews rulings solely on the ground on which the party's objection is based." (Internal quotation marks omitted.) State v. Coccomo , 302 Conn. 664, 679-80 n.6, 31 A.3d 1012 (2011). Here, the defendant's remarks on November 10, 2014, addressed only the issue of prejudice; the defendant did not specifically object to the Carter evidence on the ground of relevance. Although the defendant argues on appeal that, when he "[maintained his] objection" on November 10, 2014, he was referring to his November 5, 2014 remarks concerning relevance, such an argument is not supported by the record. Instead, a fair reading of the trial transcript indicates that the defendant's comment referred to his objection as to the prejudicial effect of the Carter evidence, which he had raised in the paragraph immediately preceding his statement that he "[maintained his] objection." We thus agree with the state that our scope of review is limited to whether the probative value of the Carter evidence was outweighed by its prejudicial effect. We now address our standard of review and the legal principles applicable to the defendant's claim. "As a general rule, evidence of guilt of other crimes is inadmissible to prove that a defendant is guilty of the crime charged against him.... The rationale of this rule is to guard against its use merely to show an evil disposition of an accused, and especially the predisposition to commit the crime with which he is now charged.... The fact that such evidence tends to prove the commission of other crimes by an accused does not render it inadmissible if it is otherwise relevant and material." (Citations omitted; internal quotation marks omitted.) State v. Braman , 191 Conn. 670, 675-76, 469 A.2d 760 (1983). "Such evidence may be admitted for other purposes, such as to show intent, an element in the crime, identity, malice, motive or a system of criminal activity." State v. Brown , 153 Conn.App. 507, 526, 101 A.3d 375 (2014), cert. granted on other grounds, 319 Conn. 901, 122 A.3d 636 (2015) (appeal withdrawn August 15, 2016). "When weighing the admissibility of relevant . misconduct evidence, a trial court is required to conduct a . balancing assessment of whether the evidence is more prejudicial than probative. This inquiry is required in order to militate against the risk that the attention of a jury may be distracted from consideration of the proof of the charges at hand, and, instead, and for improper reasons, fix the defendant's guilt on evidence of marginal evidentiary value.... The court bears the primary responsibility for conducting the balancing test to determine whether the probative value outweighs the prejudicial impact, and its conclusion will be disturbed only for a manifest abuse of discretion.... "[U]ndue prejudice is not measured by the significance of the evidence which is relevant but by the impact of that which is extraneous.... [T]here are certain situations in which the potential prejudicial effect of relevant evidence would suggest its exclusion. They are: (1) where the facts offered may unduly arouse the [jurors'] emotions, hostility or sympathy, (2) where the proof and answering evidence it provokes may create a side issue that will unduly distract the jury from the main issues, (3) where the evidence offered and the counterproof will consume an undue amount of time, and (4) where the defendant, having no reasonable ground to anticipate the evidence, is unfairly surprised and unprepared to meet it." (Citations omitted; internal quotation marks omitted.) Id., at 530-31, 101 A.3d 375. In the present case, the defendant argues that any probative value of the Carter evidence was outweighed by its prejudicial effect because (1) the state spent an undue amount of time on collateral issues; (2) the state's emphasis on such evidence likely confused the jury as to the issues in this case; (3) the jury likely used the Carter shooting as evidence demonstrating the defendant's propensity to engage in violent behavior, in violation of § 4-5 (a) of the 2009 edition of the Connecticut Code of Evidence; and (4) the violent nature of the Carter shooting unduly appealed to the emotions of the jury. The state counters that the probative value of the Carter evidence was not outweighed by its prejudicial effect. In support of its position, the state argues that such evidence was highly probative of the defendant's motive and intent to commit the crimes of conspiracy to commit and accessory to assault in the first degree because (1) the Carter shooting involved a conspiracy between some of the same actors who were involved in shooting the victim in this case, particularly, the defendant and Jerk; (2) it was committed with the same firearm that was used to shoot the victim in this case eighteen hours earlier; (3) it was set up and carried out in a manner that demonstrated the defendant's position of authority within MGB and his ability to order other members of MGB to shoot rival drug dealers, as allegedly happened in this case; and (4) it showed that the defendant's motives for the two shootings were identical: to prevent rival drug dealers from selling drugs without permission on MGB's turf. The state further argues that, consistent with the defendant's request, the court took adequate steps to minimize the prejudicial nature of the Carter evidence because the state was prohibited from eliciting testimony that Carter had been killed as a result of the shooting. So sanitized, it claims, the Carter evidence involved conduct no more shocking or brutal than that which the defendant is claimed to have engaged in when committing the charges at issue in this case. Last, the state argues that the court instructed the jury prior to, during, and after the presentation of the Carter evidence that it could use that evidence only for its consideration of the defendant's motive and intent in the present case. After a thorough review of the record, we conclude that the court did not abuse its discretion in determining that the probative value of the Carter evidence outweighed its prejudicial effect. First, we note that the defendant admitted during the November 5, 2014 hearing that he had received the evidence concerning the Carter shooting several months prior to trial. The defendant thus had reasonable grounds to anticipate the evidence and was not unfairly surprised by the state's offer of such evidence. Second, we note that the state's presentation of such evidence was limited to the latter portion of the third and final day of evidence, and thus we cannot conclude that the introduction of such evidence caused the parties to spend an undue amount of time on these issues. See C. Tait & E. Prescott, Connecticut Evidence (4th Ed. 2008) § 4.9.2, p. 144. ("Whether delay is undue or time wasted is obviously a very subjective criterion.... In the end, this is a judgment call for the trial judge."). Third, we disagree that the admission of such evidence unduly distracted the jury from the issues in this case. The court's admission of the Carter evidence was premised on the state's offer that it would limit its inquiries to the defendant's self-proclaimed solicitation, participation and oversight of the shooting by Jock; his inculpatory statements that he had ordered the shooting because he believed Carter was selling drugs in MGB territory; and the fact that the same firearm was used on two separate targets within a span of eighteen hours. These facts went directly to a contested issue in the present case, namely, whether the defendant intentionally entered into an agreement to commit and intentionally aided the principal in the commission of assault in the first degree. Last, although the defendant raises a colorable argument that the Carter evidence unduly aroused the emotions of the jury, we conclude that the court took adequate measures to minimize the emotional impact of such evidence. Our conclusion rests on the fact that the court excluded any evidence that the victim in this case died before trial; excluded any evidence that Carter had been killed as a result of the shooting on Liberty Street; and repeatedly instructed the jury that its consideration of the Carter evidence was limited to the issue of the defendant's intent and motive to commit the crimes charged against him in this case, and thus could not be used to infer that the defendant had a predisposition to engage in criminal behavior. See, e.g., Wiseman v. Armstrong , 295 Conn. 94, 113, 989 A.2d 1027 (2010) ("it is well established that, [i]n the absence of a showing that the jury failed or declined to follow the court's instructions, we presume that it heeded them" [internal quotation marks omitted] ). Accordingly, we conclude that the court did not abuse its discretion in admitting the Carter evidence in this case. III BATSON CHALLENGE The defendant's final claim on appeal is that his constitutional rights were violated when the state used a peremptory challenge to strike a minority juror without providing a sufficient race neutral explanation, in violation of the doctrine of Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). We conclude that the record is inadequate to reach the merits of the defendant's claim. Jury selection occurred over the course of two days, October 30 and 31, 2014. On the first day of jury selection, the parties conducted voir dire of a prospective juror, R.E. Prior to defense counsel's questioning of R.E., the court inquired as to whether R.E. would suffer any financial hardship by participating in jury duty. In response, R.E. initially informed the court that, although he worked part-time, his shift began at 4:30 p.m. and that his job was within walking distance of the court-house. The court then asked R.E. to contact his employer to determine whether he would be compensated for any work he missed or, alternatively, whether he would be able to begin his shift after 5 p.m. After speaking with his employer, R.E. stated that if he were selected to serve, he would be able to start his shifts after the court had adjourned for the day, and thus he had no financial concerns about being selected as a juror. Thereafter, defense counsel questioned R.E. as to whether he could keep an open mind, determine which witnesses were credible, follow the court's instructions on the law, and engage in a free exchange of ideas with his fellow jurors during deliberations. R.E. answered in the affirmative to each of these questions. Thereafter, the following colloquy occurred during the prosecutor's voir dire of R.E.: "[The Prosecutor]: . You're from Hartford? "[R.E.]: Yes. "[The Prosecutor]: You haven't heard anything about this incident- "[R.E.]: No, sir. "[The Prosecutor]: -which was presented to you? None of the names that were listed to you sounded familiar- "[R.E.]: No, sir. "[The Prosecutor]: -anything like that? So, you're at Easter Seals. You've been there for how long? You said about four years? "[R.E.]: Four years. "[The Prosecutor]: Have you ever had anyone close to you, friends, family members, anyone like that, that has been the victim of a crime? "[R.E.]: No, sir. "[The Prosecutor]: And if you were to hear information about drugs within this trial, do you think you could still consider that information and make your decisions or would you be turned off by that? "[R.E.]: I could still make my decision. "[The Prosecutor]: Okay. Still be open-minded and consider all the information- "[R.E.]: Yes. "[The Prosecutor]: -presented? "[R.E.]: Yes, sir. "[The Prosecutor]: Is there anything either of us have left out that you think would-would be important to tell us about your ability to sit here as a juror? "[R.E.]: No, sir. "[The Prosecutor]: Great. Thanks for your time." Thereafter, R.E. exited the courtroom and the following colloquy occurred: "[Defense Counsel]: Accepted. "[The Prosecutor]: Excused. "[Defense Counsel]: Your Honor, I would ask for a gender or a race neutral explanation or basis. "[The Prosecutor]: Should I give one? "[The Court]: Yes. "[The Prosecutor]: It would be his employment history, Your Honor, and just basically his sense of security. I do have concerns also that he's from Hartford, although he did indicate that he knew nothing about the offense. "[Defense Counsel]: Your Honor, if I may. We have two Caucasian women on the panel at this point in time. He answered all the questions, in my view at least, and I think counsel would agree, honestly. He didn't express any reservations about security. Being from Hartford is not a bar to be in this case. He did not express any familiarity with the case. I think he answered all the questions right. I think he's got a right to serve on this panel. "[The Prosecutor]: I think I presented a race neutral reason, Your Honor. It's my prerogative. I don't believe-or I've indicated to the court that I am not excusing him based on his race. "[The Court]: His work history? "[The Prosecutor]: Yes. "[The Court]: All right. He's excused." R.E. was then summoned to the courtroom and informed that he had been excused. After R.E. had been dismissed, the court, sua sponte, stated: "I would note that [R.E.] is not the same race as the defendant, African-American." Later that afternoon, the court asked defense counsel whether he wanted to offer any rebuttal to the state's race neutral explanation for using its peremptory challenge to strike R.E. In response, defense counsel stated: "Well, I mean the idea that his employment, because he was freelancing, and the idea that he was still working, these are tough times, there was nothing extraordinary about being a freelancer. I meant that the record speaks for itself. I didn't hear anything extraordinary, like, he'd been a victim of a crime or had a brother incarcerated or had been harassed by the police or all the things that you typically hear from . individuals who . live in the city. His answers were . for lack of a better word, you know, correct, either posed by me or by counsel. So, no, I guess . I don't really have a rebuttal because I think the record . that's . kind of the point, the record speaks for itself." On appeal, the defendant argues that his constitutional rights were violated because the state's race neutral explanation for striking R.E. was merely pretextual and that the state's willingness to accept two other venirepersons, I.L. and G.H.-both of whom the defendant claims were nonminority venirepersons who also held part-time jobs-demonstrates that the state's peremptory challenge as to R.E. was racially motivated. The state argues that the defendant is not entitled to review of this unpreserved claim due to the inadequacy of the record. The defendant responds that he adequately preserved this claim and, alternatively, seeks review pursuant to State v. Golding , supra, 213 Conn. at 239-40, 567 A.2d 823 see also In re Yasiel R. , 317 Conn. 773, 781, 120 A.3d 1188 (2015) (modifying Golding 's third condition). On the basis of the record presented, we conclude that the defendant did not preserve his claim of disparate treatment before the trial court; State v. Young , 76 Conn.App. 392, 399, 819 A.2d 884 ("because a claim of purposeful discrimination under Batson raises issues of fact to be decided by the trial court, the moving party's failure to inform the trial court of the full factual basis for the claim renders that claim unreviewable" [internal quotation marks omitted] ), cert. denied, 264 Conn. 912, 826 A.2d 1157 (2003) ; nor did he satisfy the reviewability requirements of Golding because the transcripts of the voir dire do not indicate the racial composition of the empaneled jury. See State v. Owens , 63 Conn.App. 245, 263, 775 A.2d 325 ("The defendant must satisfy the reviewability requirements of Golding before we consider his unpreserved claim. He did not object to the state's exercise of any peremptory challenge during voir dire, and the transcripts of the voir dire do not indicate the race of any venireperson. The absence of a record bars our review of this claim."), cert. denied, 256 Conn. 933, 776 A.2d 1151 (2001). Further, the record belies the defendant's assertion that there are adequate facts of record to demonstrate that the state engaged in racially disparate treatment by accepting both I.L. and G.H., whom the defendant claims were nonminority venirepersons with work restrictions similar to R.E.'s. First, although the court expressly noted that R.E. was not of the same race as the defendant , there is nothing in the record demonstrating R.E.'s personal race or ethnicity. State v. Lane , 101 Conn.App. 540, 548-49, 922 A.2d 1107 ("The record does not reflect [the venireperson's] race. We conclude that we cannot review any Batson claim . that the defendant may have had regarding the state's use of its peremptory challenge . because of a lack of a sufficient record." [Footnote omitted.] ), cert. denied, 283 Conn. 910, 928 A.2d 538 (2007). Second, the state correctly recognizes a similar lack of facts regarding I.L.'s race. Without such information, we cannot engage in an analysis of disparate treatment between I.L. and R.E. Finally, and contrary to the defendant's assertion, the court expressly noted that G.H., the remaining venireperson cited in the defendant's brief, was an African-American female. Thus, the prosecution's acceptance of G.H. but not R.E. could not serve as evidence of the state's discriminatory use of peremptory challenges to exclude similarly situated minority persons from the defendant's jury. Absent such necessary facts of record, we decline to reach the merits of the defendant's claim. The judgment is affirmed. In this opinion the other judges concurred. General Statutes § 53a-59(a) provides in relevant part: "A person is guilty of assault in the first degree when . (5) with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of the discharge of a firearm." General Statutes § 53a-8(a) provides: "A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender." General Statutes § 53a-48(a) provides: "A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy." See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Throughout the course of the trial, the witness was referred to as Sonesta Reynolds, Sonesta Campos, and Sonesta Reynolds-Campos. Because the witness indicated no preference as to how she was addressed, we refer to her simply as Campos. Prior to trial, the victim died due to an unrelated drug overdose. Following the victim's death, police were able to remove and analyze the bullet that had struck the victim's spinal cord. See part II B of this opinion. As part of its evidentiary rulings, the court excluded any reference to the victim's death. The jury did not, at any time during the defendant's criminal trial, receive evidence concerning or related to the state investigating grand jury. "We address the defendant's sufficiency of the evidence claim before we address any other claims because if a defendant prevails on such a claim, the proper remedy is to direct a judgment of acquittal." State v. Holley, 160 Conn.App. 578, 584 n.3, 127 A.3d 221, cert. granted on other grounds, 320 Conn. 906, 127 A.3d 1000 (2015) ; see also State v. Moore, 100 Conn.App. 122, 126 n.2, 917 A.2d 564 (2007). On appeal, the defendant asserts that the court abused its discretion in admitting evidence of uncharged misconduct. In reviewing a sufficiency of the evidence claim, however, we look at "no less than, and no more than, the evidence introduced at trial." (Internal quotation marks omitted.) State v. Chemlen, 165 Conn.App. 791, 816-18, 140 A.3d 347, cert. denied, 322 Conn. 908, 140 A.3d 977 (2016). Thus, although we address the defendant's evidentiary claims in part II of this opinion, our review of the defendant's sufficiency claim necessarily includes our consideration of the uncharged misconduct evidence admitted at trial and the inferences the jury reasonably could have drawn therefrom. Daniels testified that he was allowed to sell drugs in the neighborhood because he had lived in the area of Bedford Street for approximately eleven years, he "was cool with some of the friends of the defendant," and there was an understanding that "[i]f [he] was the hustler on that block, [he] had to be buying [MGB's] drugs." On appeal, the defendant asserts that the court abused its discretion in admitting this evidence of uncharged misconduct. See footnote 9 of this opinion. We address those arguments in part II of this opinion. Although Carter died as a result of his wounds, the court excluded from the trial any reference to Carter's death, and the state was prohibited from referring to the shooting as a murder or homicide. AFIS stands for automated fingerprint identification system. On direct examination, Weaver testified that between 2004 and 2014, he had received extensive forensics training in "[analyzing] cellular phones, cellular mapping . [and] computer forensics." The defendant did not object either to Weaver's credentials or the substance of his testimony. In his brief to this court, the defendant maintains that Doster testified that his conversation with the defendant occurred hours, not minutes, before the shooting occurred. The transcripts demonstrate, however, that Doster expressly stated that his conversation with the defendant occurred "[m]aybe a couple minutes before . the incident happened." Although Doster equivocated on this time line during cross-examination, it is the sole province of the trier of fact to resolve those discrepancies and give weight to whatever testimony it believes to be credible. State v. Allen, supra, 289 Conn. at 559, 958 A.2d 1214. We note that the defendant does not argue on appeal that there was insufficient evidence that any member of the conspiracy, if established, engaged in an overt act in furtherance of the conspiracy. Rather, the defendant's claim is limited to whether the jury was presented with sufficient evidence to sustain its findings that he intentionally entered into an agreement to conspire to and/or intended that a member of the conspiracy commit assault in the first degree by means of the discharge of a firearm. In light of the fact that the victim was, in fact, physically injured by means of the discharge of a firearm, our inquiry is limited to the first two elements of the charge of conspiracy. See footnote 6 of this opinion. See footnote 12 of this opinion. Pursuant to § 4-5 (a) of the 2009 edition of the Connecticut Code of Evidence: "Evidence of other crimes, wrongs or acts of a person is inadmissible to prove the bad character or criminal tendencies of that person." See footnote 6 of this opinion. "References to individual jurors will be made by use of initials so as to protect their legitimate privacy interests." State v. Wright, 86 Conn.App. 86, 88 n.3, 860 A.2d 278 (2004).

12490412

Nicole DINAPOLI v. Steven REGENSTEIN et al.

Dinapoli v. Regenstein

2017-08-15

(AC 38576).

1041

1053

167 A.3d 1041

167

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.022978+00:00

Fastcase

Nicole DINAPOLI v. Steven REGENSTEIN et al.

Nicole DINAPOLI v. Steven REGENSTEIN et al. (AC 38576). Appellate Court of Connecticut. Argued March 16, 2017 Officially released August 15, 2017 G. Oliver Koppell, pro hac vice, with whom was Richard T. Meehan, Jr., for the appellant (plaintiff). Beverly Knapp Anderson, with whom was Craig A. Fontaine, for the appellees (named defendant et al.).

6211

38487

LAVINE, J. The plaintiff, Nicole DiNapoli, appeals from the judgment, rendered after a jury trial, in favor of the defendants, Steven Regenstein, a dentist, and his practice, Novsam-Regenstein, P.C., doing business as Westport Esthetic Dental Group. The plaintiff claims that the trial court abused its discretion by (1) striking four portions of the testimony of her expert witness regarding the standard of care, (2) precluding her from presenting testimony regarding the facts that the experts relied on in forming their opinions, and (3) precluding her expert from giving his opinion in response to a hypothetical question. We affirm the judgment of the trial court. The following facts and procedural history are necessary to our resolution of the plaintiff's appeal. On June 2, 2011, the plaintiff, a then thirty-one year old woman, went to Westport Esthetic Dental Group for a full cleaning, X-rays, and a consultation regarding "Zoom!" teeth whitening (Zoom). Zoom is a teeth whitening procedure in which a dentist applies a gel to a patient's teeth and puts a bright light in close proximity to the patient's mouth for three fifteen minute periods. When the plaintiff arrived, she filled out an intake form, indicating that she had a history of bleeding gums, acid reflux, anxiety, headaches, and tooth sensitivity. While cleaning the plaintiff's teeth, a dental hygienist and the plaintiff spoke "at length" about her history of tooth sensitivity, including that her teeth were "very sensitive" to the use of certain whitening strips. Afterward, Regenstein examined the plaintiff's teeth, and they "went over almost the exact information" that she and the hygienist spoke about, talking a "good amount" about her history of sensitive teeth. The plaintiff did not inform Regenstein that she had a history of "extreme sensitivity to bleach." Either Regenstein or the hygienist suggested to the plaintiff that she use fluoride rinse, Sensodyne toothpaste, and Motrin prior to the Zoom whitening procedure in order to alleviate any sensitivity and pain she may feel during or after the procedure. After the consultation, the plaintiff made an appointment to undergo the procedure on June 22, 2011, but she did not receive or sign a consent form explaining the known risks associated with Zoom whitening. On June 22, 2011, the plaintiff returned to Westport Esthetic Dental Group to undergo the Zoom whitening procedure. During the second exposure to the bright light, she began to experience aching in her mouth, and during the third exposure, she experienced "extreme pain." Later that day, the plaintiff called the Westport Esthetic Dental Group because she was in "excruciating pain" and was told that she could take Motrin, use relief gel, and rinse with fluoride to relieve the pain. Her pain did not subside, and she as well as members of her family continued to call Westport Esthetic Dental Group. On June 29, 2011, the plaintiff spoke with Regenstein, and he prescribed her fluoride gel and fluoride toothpaste. As recommended, the plaintiff brushed with the fluoride toothpaste, rinsed with fluoride rinse, wore fluoride molds, used relief gel, and gargled with warm water and baking soda for the next couple of months. She continued to experience pain and tooth sensitivity in her mouth for four years, however, and, during that time, she suffered from hair loss for six months. On March 11, 2015, the plaintiff filed an amended complaint, alleging (1) dental malpractice arising from the defendants' breach of the standard of care prior to, during, and after administering the Zoom whitening treatment, and (2) lack of informed consent and failure to warn arising from the defendants' failure to warn her of the known risks associated with Zoom whitening or the defendants' failure to recommend alternative treatment options. She alleged that, as a direct and proximate result of the defendants' actions, she suffered from and will continue to suffer from increased tooth sensitivity, incurred expenses for medical treatment, hair loss, ongoing physical pain, and anxiety. A number of witnesses testified during the plaintiff's case-in-chief, including the plaintiff and Regenstein. She also called Andrew Mogelof, a dentist at Mogelof Dental Group, as an expert witness. The defendants, in turn, presented the testimony of Peter Katz, a dentist in private practice, as an expert witness. On direct examination, the plaintiff's counsel asked Mogelof a number of questions pertaining to the standard of care that dentists should follow when treating new patients for Zoom whitening. The defendants' counsel objected to four lines of questioning, and the court sustained the objections. The plaintiff's counsel then asked Mogelof a hypothetical question regarding breach of the standard of care. In addition, the plaintiff's counsel questioned Mogelof and Katz about the facts on which they relied in forming their opinions. The defendants' counsel objected to both lines of questioning, and the court sustained the objections. Mogelof did testify as to the standard of care in 2011 for consulting and treating patients for Zoom whitening. He also testified that, in his expert opinion, the defendants breached the standard of care prior to and after treating the plaintiff and that they failed to inform her of the known risks associated with Zoom whitening before obtaining her consent. Notably, Mogelof never testified, in any way, that the Zoom whitening or any subsequent treatment caused the plaintiff's injuries. See footnote 14 of this opinion. On October 6, 2015, the jury found that the defendants had not breached the standard of care in treating the plaintiff, but found that they had failed to obtain the plaintiff's informed consent. It rendered a verdict in favor of the defendants, however, because it found that their failure to obtain her informed consent was not the proximate cause of her injuries. This appeal followed. Additional facts will be set forth as needed. As a threshold matter, we set forth the standard of review for all of the plaintiff's claims, which all concern the court's evidentiary rulings. "The decision to preclude a party from introducing expert testimony is within the discretion of the trial court." (Internal quotation marks omitted.) Amsden v. Fischer , 62 Conn.App. 323, 325-26, 771 A.2d 233 (2001). "We will make every reasonable presumption in favor of upholding the trial court's ruling, and only upset it for a manifest abuse of discretion.... [Thus, our] review of such rulings is limited to the questions of whether the trial court correctly applied the law and reasonably could have reached the conclusion that it did." (Internal quotation marks omitted.) Maynard v. Sena , 158 Conn.App. 509, 513-14, 125 A.3d 541, cert. denied, 319 Conn. 910, 123 A.3d 436 (2015). I The plaintiff's first claim is that the court abused its discretion by striking four portions of Mogelof's testimony relating to the standard of care. She argues that the excluded testimony was necessary to her dental malpractice claim because the testimony was relevant to establishing the standard of care and "would have enabled the jury to find that the defendants departed from the standard of care ." We disagree. During the plaintiff's direct examination of Mogelof, her counsel asked: "[W]hat do you do with respect-let's take a patient who is not a prior patient of the office. What is your practice?" During his lengthy explanation, the plaintiff's counsel interrupted him and asked if he could "confine [his testimony] only to patients seeking Zoom." The defendants' counsel objected and moved to strike Mogelof's testimony because his answer was not confined to patients seeking Zoom whitening treatment. The court sustained the objection, thereby striking the testimony. Then, the plaintiff's counsel asked Mogelof: "What is the conversation you have with them . only with respect to the person coming in and saying they want Zoom." While Mogelof was giving a lengthy answer to the question, the defendants' counsel objected because it was a "narrative response," and the court sustained the objection. The plaintiff's counsel also asked Mogelof: "What . do you specifically tell them about the Zoom process, if anything?" During his answer, Mogelof stated: "In addition, we know, dentists know, anybody that uses Zoom knows-." The defendants' counsel objected and moved to strike that sentence, and the court sustained the objection, thereby striking the testimony. Finally, the plaintiff's counsel asked Mogelof: "So let's confine [this to] what you tell patients, no[t] why you tell them but what you tell them." During his answer, he stated: "In addition, I also tell them that sometimes patients may have sensitivity of their teeth as a result of Zoom because that's what the experience is and that's what [Discus Dental, a company associated with Zoom whitening] has informed all of us who use Zoom." The defendants' counsel objected and moved to strike his testimony about what "the Discus company did at any point in time," and the court sustained the objection, thereby striking the testimony. "Evidence is admissible only if it is relevant.... Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue.... One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable.... It is well settled that questions of relevance are committed to the sound discretion of the trial court." (Internal quotation marks omitted.) Pickel v. Automated Waste Disposal, Inc. , 65 Conn.App. 176, 184, 782 A.2d 231 (2001). In addition, testimony that is not responsive to a question is inadmissible. See State v. Ankerman , 81 Conn.App. 503, 516-17, 840 A.2d 1182 (no abuse of discretion in sustaining prosecutor's objection because defendant's answer not responsive to question posed), cert. denied, 270 Conn. 901, 853 A.2d 520, cert. denied, 543 U.S. 944, 125 S.Ct. 372, 160 L.Ed.2d 256 (2004). On the basis of our review of the record, we conclude that the court did not abuse its discretion in striking certain portions of Mogelof's wide ranging testimony because that testimony was either irrelevant or not responsive to the questions posed by the plaintiff's counsel. The court did not abuse its discretion by concluding that the portions of Mogelof's testimony that did not pertain to how he treats patients who want to undergo Zoom whitening were irrelevant because they did not make the defendants' alleged breach of the standard of care in treating the plaintiff for Zoom whitening more or less probable. In addition, it was not an abuse of discretion to exclude portions of Mogelof's testimony that were not responsive because the answers went beyond the scope of the specific questions posed by the plaintiff's counsel. II The plaintiff's second claim is that the court abused its discretion when it excluded another portion of Mogelof's testimony and two portions of Katz' testimony that regarded the facts on which they had based their expert opinions. She argues that the jury did not find that the defendants departed from the standard of care in her dental malpractice claim, in part, because "[Mogelof] . was not allowed to support his opinion," and she was "deprived of an opportunity to fully examine the veracity of the process in which [Katz] reached his expert opinion ." We disagree. A Mogelof's Testimony During the plaintiff's direct examination of Mogelof, her counsel asked him what sources he "reviewed" before testifying. Mogelof said that he reviewed "comments I found on the web [from people] who were having issues with going through the Zoom process" and "complaints that were listed with the [Food and Drug Administration] ." When he attempted to give a summary of the comments and complaints, the defendants' counsel objected on the grounds of hearsay and relevance. The plaintiff's counsel argued that Mogelof's testimony was admissible because "an expert can testify with respect to matters that might otherwise be considered hearsay if they have assisted the expert in . forming his expert opinion." The court sustained the objection. "An out-of-court statement used to prove the truth of the matter asserted is hearsay and is generally inadmissible unless an exception applies." (Internal quotation marks omitted.) State v. Owen , 101 Conn.App. 40, 42, 919 A.2d 1049, cert. denied, 283 Conn. 902, 926 A.2d 671 (2007). However, "[a]n expert may base his opinion on facts or data not in evidence, provided they are of a type reasonably relied on by experts in the particular field . [W]hen the expert witness has consulted numerous sources, and uses that information, together with his own professional knowledge and experience, to arrive at his opinion, that opinion is regarded as evidence in its own right and not as hearsay in disguise." (Citations omitted; emphasis added; internal quotation marks omitted.) In re Barbara J. , 215 Conn. 31, 43, 574 A.2d 203 (1990). "Whether inadmissible facts are of a type customarily relied on by experts in forming opinions is a preliminary question to be decided by the trial court." Conn. Code Evid. 7-4(b), commentary. In giving his or her opinion, an "expert must, of course, be allowed to disclose to the trier of fact the basis facts for his [or her] opinion, as otherwise the opinion is left unsupported in midair with little if any means for evaluating its correctness ." (Internal quotation marks omitted.) Carusillo v. Associated Women's Health Specialists, P.C. , 72 Conn.App. 75, 88, 804 A.2d 960, quoting C. McCormick, Evidence (3d Ed. 1984) § 324.2, p. 910. "[O]ur appellate courts have construed [ Conn. Code Evid. § 7-4 ] to permit the admission of otherwise inadmissible hearsay evidence for the limited purpose of explaining the factual basis for the expert's opinion.... [I]nformation on which an expert relied that is not offered for its truth but is offered to show that the expert relied on it is not hearsay and may be the subject of proper cross-examination to test the basis of that expert's opinion." (Citations omitted; emphasis omitted; internal quotation marks omitted.) R.T. Vanderbilt Co., Inc. v. Hartford Accident & Indemnity Co ., 171 Conn.App. 61, 287-88, 156 A.3d 539 (2017), petitions for cert. filed (Conn. May 15, 2017) (Nos. 160445, 160446), cross petition for cert. filed (Conn. June 26, 2017) (No. 160509). It is at the discretion of the court to decide whether the sources an expert relied on should be admitted and subjected to cross-examination. See id. at 289-90, 156 A.3d 539 (no abuse of discretion in court admitting information on which expert relied in forming opinion and allowing opposing party to test reliability of information through cross-examination). We conclude that the court did not abuse its discretion in sustaining the defendants' objection. The comments and complaints themselves were inadmissible hearsay, and, therefore, testimony summarizing their contents would have been admissible only for the limited purpose of explaining the basis on which Mogelof formed his expert opinion. We find no abuse of discretion in the court's decision to preclude Mogelof from testifying on this point because the plaintiff failed to show that comments posted on the Internet and complaints made to the Food and Drug Administration by unknown individuals were the types of sources on which experts in the dental field reasonably rely when rendering expert opinions. B Katz' Testimony The plaintiff further claims that the trial court abused its discretion by precluding her from asking Katz about materials that he had reviewed for purposes of forming his expert opinion. Specifically, she claims that the trial court improperly precluded her inquiry into Katz' reliance on (1) certain documents from Discus Dental, and (2) two of the plaintiff's exhibits. We disagree. 1 During the defendants' direct examination of Katz, the defendants' counsel asked him about the materials he reviewed before testifying. Katz listed a number of sources that he had reviewed, but he did not state that he reviewed any documents from Discus Dental, or that he received any documents from Discus Dental. During the plaintiff's cross-examination of Katz, her counsel asked: "You testified, Dr. Katz, that you had received certain materials from Zoom, from Discus Dental . Is that correct, you got some documents from them, right?" The defendants' counsel objected on the ground that the question was outside the scope of direct examination and irrelevant. The court sustained the objection. "It is a well established rule of evidence that cross-examination is restricted to matters covered on direct examination.... A question [on cross-examination] is within the scope of the direct examination if it is designed to rebut, impeach, modify, or explain any of the defendants' direct testimony.... The trial court is given broad discretion to determine whether a particular line of cross-examination is within the scope of the direct examination." (Citations omitted; internal quotation marks omitted.) State v. Ramos , 261 Conn. 156, 176-77, 801 A.2d 788 (2002), overruled on other grounds by State v. Elson , 311 Conn. 726, 740, 91 A.3d 862 (2014). We conclude that the court did not abuse its discretion in sustaining the defendants' objection. Katz did not testify during direct examination that he reviewed any documents from Zoom or Discus Dental or that he received documents from Discus Dental. Thus, the court did not abuse its discretion in concluding that the question was outside the scope of the direct examination. 2 During the plaintiff's cross-examination of Katz, he stated that he relied, in part, on two of the plaintiff's exhibits in forming his expert opinion: a dental assistant's notes dated June 22, 2011, and an instructional form for dentists on how to administer Zoom whitening. The plaintiff's counsel asked Katz: "And did you, in coming to your opinion that the standard of care was not violated by Dr. Regenstein in his response to the problems that are set forth here, you considered all of these facts as stated in the record?" After Katz stated yes, the plaintiff's counsel then asked him: "In coming to your opinion that Dr. [Regenstein] did not violate the standard of care, did you take these facts as true?" The defendants' counsel objected on multiple grounds, including that the plaintiff's counsel was "making a closing argument" because she was asking Katz to opine on the "[v]eracity of [the] evidence," the question was "inappropriate," and that the question was "not within the scope of direct examination ." The court sustained the objection. "As a rule, the extent of a cross-examination is within the court's discretion, although it should be liberally allowed.... Nonetheless, the court may restrict a cross-examination to evidence which is competent, material, and relevant, and when the examination has been carried as far as will serve to develop the issues involved and aid the search for the truth, we approve of the trial court curtailing the length and the limit of examinations." (Internal quotation marks omitted.) State v. Ballas , 180 Conn. 662, 676, 433 A.2d 989 (1980). We conclude that the court did not abuse its discretion in sustaining the objection by the defendants' counsel. Although we are cognizant of the fact that experts are permitted to testify about the materials on which they rely in forming expert opinions; see Carusillo v. Associated Women's Health Specialists, P.C. , supra, 72 Conn.App. at 88, 804 A.2d 960 ; the plaintiff's counsel did not ask Katz to explain the content of the sources, but, rather, the plaintiff's counsel asked him to state whether he thought those sources were factually accurate. It is difficult to imagine an expert conceding that he or she relied upon an unreliable source in rendering an opinion. In any event, although another judge might have handled this evidentiary issue differently, we are not persuaded that the court abused its discretion in limiting the plaintiff's cross-examination of Katz. III The plaintiff's third claim is that the court abused its discretion in not permitting Mogelof to answer a hypothetical question posed by the plaintiff's counsel. She argues that the jury did not find that the defendants breached the standard of care in her dental malpractice claim, in part, because the hypothetical was "her opportunity to present to the jury her claim that the defendants had deviated from the applicable standard of care," and its exclusion forced the jury to "disregard Dr. Mogelof's expert testimony ." We disagree. During the plaintiff's direct examination of Mogelof, her counsel asked him to answer the following hypothetical: "A patient has a known history of sensitivity . informs the dentist that she has clenching and grinding, that she suffers from migraines, that she suffers from anxiety, that she has acid reflux, and informs the dentist that she has very sensitive teeth and she had an uncomfortable experience in the past using bleaching trays and she came to the dentist for tooth whitening, and the dentist went ahead with that procedure without conducting further history into her-further examination into her history of sensitivity , did not provide her with an informed consent form, did not warn her about usage of contraindicated medication, and did not warn her of the potential for exacerbated sensitivity and pain due to the procedure. Could you say on this hypothetical within a reasonable degree of medical certainty that the standard of care for a dentist in 2011 would be violated?" (Emphasis added.) The defendants' counsel objected on the ground that certain facts in the hypothetical were not supported by the evidence, specifically, that "the dentist went ahead with that procedure without conducting . further examination into her history of sensitivity," and the dentist "did not warn her of the potential for exacerbated sensitivity and pain due to the procedure." The court sustained the objection. "[A]n expert may testify in the form of an opinion and give reasons therefor, provided sufficient facts are shown as the foundation for the expert's opinion.... [A]n expert may obtain information at trial by having factual testimony summarized in the form of a hypothetical question at trial." (Citations omitted; internal quotation marks omitted.) Viera v. Cohen , 283 Conn. 412, 444, 927 A.2d 843 (2007). "An expert may give an opinion in response to a hypothetical question provided that the hypothetical question (1) presents the facts in such a manner that they bear a true and fair relationship to each other and to the evidence in the case , (2) is not worded so as to mislead or confuse the jury, and (3) is not so lacking in the essential facts as to be without value in the decision of the case. A hypothetical question need not contain all of the facts in evidence." (Emphasis added.) Conn. Code Evid. § 7-4 (c) ; see also State v. David N.J. , 301 Conn. 122, 133-34, 19 A.3d 646 (2011). On the basis of our review of the record, we conclude that the court did not abuse its discretion in sustaining the defendants' objection. First, the court did not abuse its discretion in concluding that the phrase, "the dentist went ahead with that procedure without conducting . further examination into [the patient's] history of sensitivity," did not bear a true relationship to the evidence presented at trial. Regenstein testified that, during the June 2, 2011 consultation, he and the plaintiff discussed her medical history, specifically, her history of suffering from sensitive teeth, and he conducted an oral examination of her mouth in order to determine the cause of her sensitivity. The plaintiff testified that they "talked about the sensitivity in [her] teeth . a good amount" with both Regenstein and the dental hygienist during the June 2, 2011 consultation. Second, the court did not abuse its discretion in concluding that the phrase "[the dentist] did not warn [the patient] of the potential for exacerbated sensitivity and pain due to the procedure" did not bear a true relationship to the evidence presented at trial. Regenstein testified that, at the June 2, 2011 consultation, he and the plaintiff discussed how she should expect to experience sensitivity after the procedure because she had a history of sensitive teeth. He also testified that they had a detailed discussion about how to lessen the sensitivity that she would feel, which included taking Motrin, using fluoride rinse, and using Sensodyne toothpaste in a tray during the weeks prior to the procedure. Although the plaintiff testified that no one told her that Zoom whitening was a painful procedure or that she should use the trays, she also testified that either Regenstein or a dental hygienist explained to her that she could brush her teeth with Sensodyne toothpaste and take Motrin prior to the procedure in order to "alleviate any pain" that she may feel. The court, therefore, properly sustained the objection. The judgment is affirmed. In this opinion the other judges concurred. The amended complaint also named Discus Dental, LLC, Philips Oral Healthcare, Inc., and Philips Electronics North America Corporation as defendants. On September 8, 2015, the plaintiff withdrew the action against them and, therefore, in this opinion we refer to Regenstein and Westport Esthetic Dental Group individually by name and collectively as the defendants. The plaintiff also claims that the court abused its discretion by precluding her from introducing into evidence the medical records of Gail Whitman, the plaintiff's dermatologist, concerning the plaintiff's hair loss. She argues that the evidence was relevant to prove that she suffered from anxiety and emotional distress as a result of the treatment at issue, and "[t]his exclusion severely prejudiced the plaintiff's ability to establish a claim for damages...." (Emphasis added.) In support of her argument, the plaintiff stated in her rely brief to this court that she "did not seek to have the records . introduced as expert evidence that showed there was causation with respect to the . procedure and accompanying hair loss. Rather, the plaintiff sought to have Dr. Whitman's records admitted as evidence that [she] suffered great anxiety about the loss of her hair due to the . treatment." In light of our conclusion that the court did not abuse its discretion in its evidentiary rulings regarding expert testimony, the question of damages is not relevant, and, thus, we need not address this claim. The plaintiff alleged in her amended complaint that the known risks of Zoom whitening included that "Zoom whitening is contraindicated for patients using Accutane," and that "Zoom whitening is not recommended for patients with sensitive teeth or that Zoom whitening may increase [teeth] sensitivity." She did not specifically allege that the defendants knew or reasonably should have known about the known risks. The following is an excerpt of Mogelof's stricken testimony in response to the question: "And let's take the patient coming in and seeing the dental hygienist as a first visit. Patient usually has various treatments provided, full mouth series of X-rays would be taken, if appropriate, and a very thorough examination by me or my son, a doctor's exam. If there's medical information or dental history information, usually forms are filled out by the patient.... And once the patient is in the office and has filled out all [of] the forms, usually if there is any information on the forms, for instance, in the medical history, that are concerning to us in any way, I will come into the treatment room and I will introduce myself to the patient and review a couple of those items if they're concerning or questionable to me. If not, then the patient will have-usually have a cleaning, and, as I said, they would have a full set of X-rays. And the hygienist would then perform her examination and take her detailed information, which would include an oral cancer screening exam . They may take photographs of the patient's teeth with an intraoral . camera, which we have. So those images are loaded into the patient file. If there's a particular concern that the patient brings up about a problem they're having, then that problem is examined and documented by the hygienist to report to me when I come back into the room for an examination." Mogelof gave the following stricken testimony in response to the question: "The conversation is, if there are any things in their dental history or their dental information or their medical form that they filled out that relate to the Zoom process, then I need to go into that in more depth.... [F]or instance, if a patient says that they have extreme dry mouth and it's on the basis of a medication that they are taking, then I have to determine whether or not, if they have a dry mouth, what influence is a dry mouth on using a Zoom product. If they say that they are taking-they have a hip problem and they are taking noninflammatory medication, noninflammatory medications, I have to determine whether or not those medications, whatever they are, have any influence of the Zoom process because the Zoom company Discus has provided information to us regarding a list of [medications] that may render the patient-may create a problem with the patient if they go through the Zoom process. So let's say that the patient has taken a medication that I feel-." Mogelof gave the following testimony in response to the question: "Specifically, I tell them about the Zoom process itself. I describe the steps in the process. I describe the importance of using various materials that are recommended by the Zoom company. And I tell the patient that this process involves materials that are applied to the teeth. And they're applied to the teeth by having the teeth isolated away from the rest of the lips and the tongue and the cheeks of the mouth so that just the teeth are exposed. And the material that's placed on the teeth that's part of the Zoom process is an agent or a material that will, through the process of the use of a light that activates the material, will cause teeth to whiten. And the stains or colors of the teeth will hopefully be whitened. I say hopefully because every patient may have a different result from Zoom. And people need to know that. In addition, we know, dentists know, anybody that uses Zoom knows-. " (Emphasis added.) Mogelof gave the following testimony in response to the plaintiff's question: "So I tell them that Zoom may not whiten their teeth as much as they want. I tell them that it is a process of about two and a half hours in the office, during which time their mouth is prepared for and isolated for the Zoom process. We have some photographs that we show the patient, what the apparatus looks like, so they have an understanding of what they're going to have in their mouth. In addition, I also tell them that sometimes patients may have sensitivity of their teeth as a result of Zoom because that's what the experience is and that's what the Discus company has informed all of us who use Zoom." (Emphasis added.) The court stated in response to the argument of the plaintiff's counsel: "In certain case[s] that's true, but just because he read something on the web doesn't mean it's [true] in this one." Specifically, Katz stated that he reviewed "[t]he complaint, the revised complaint, the depositions of the plaintiff, the defendant, and Dr. Mogelof, the other expert witness, dental records of Dr. Regenstein, [and] Dr. Diette. There were medical records from the skin doctor, her primary care physician, her neurologist, [and] some [pharmacy] records on medications." Regenstein testified that the notes were written by Jennifer Schreier, a dental assistant in the office. The notes were broken up into two parts. The first part referred to the notes taken immediately after the procedure, and the second referred to the notes taken immediately after the plaintiff called the office. The first part read as follows: "6/22/11: Begin Zoom starting [value] lower arch D2, max arch posteriors A1-[patient] has veneers/crown 6-11 tried in [patient's] trays-[previously] done at another DDS, max tray does not fit properly-[advised] need for new tray-offered to take [impression]-[patient] not concerned [with] color of max teeth. 'Does not have a wide smile and can't see that far back.' [Patient] very concerned about [sensitivity]-used Sensodyne 2 [weeks] prior to today-[dispensed] 800 mg Motrin prior to Zoom. Completed 2 full cycles and 2 [minutes] into 3rd cycle-[experienced] [too] many zingers and is very uncomfortable-wanted to stop. [Advised] may [experience] Zingers for next 24 [hours]. [Advised] [r]elief gel, Sensodyne, ACT Rinse and Motrin." The second part read as follows: "6/22/11: [Patient] called-'I have so much discomfort, I can't even open my mouth. I'm ready to leave work.' [Advised] to stay [with] Motrin / Advil every 6 [hours]-[Patient] states she took 600 mg 1 [hour] ago. [Advised] to utilize the relief gel as well as ACT Rinse and also to continue use of Sensodyne. [Advised] may be uncomfortable for next 24 hours. Per [patient] 'there is no way I can.' " The plaintiff's counsel did not indicate which sections of the form he was referencing. The court did not indicate upon which ground or grounds it sustained the objection. Regenstein testified that a tray is similar to a mouth guard, in which a patient puts toothpaste and puts the tray in his or her mouth for one-half an hour. As an alternative basis to affirm the judgment, on the basis of our review of the record, we agree with the defendants and conclude that, even if the court abused its discretion, any errors were harmless because the plaintiff failed to prove causation for her medical malpractice claim. "[T]o prevail in a medical malpractice action, the plaintiff must prove (1) the requisite standard of care for treatment, (2) a deviation from that standard of care, and (3) a causal connection between the deviation and the claimed injury.... Generally, expert testimony is required to establish both the standard of care to which the defendant is held and the breach of that standard." (Emphasis added; internal quotation marks omitted.) Gold v. Greenwich Hospital Assn., 262 Conn. 248, 254-55, 811 A.2d 1266 (2002). "[T]he causal relation between an injury and its later physical effects may be established by the direct opinion of a physician, by his deduction by the process of eliminating causes other than the traumatic agency, or by his opinion based upon a hypothetical question.... [T]he expert opinion must be based on reasonable probabilities.... An expert, however, need not use talismanic words to show reasonable probability." (Citations omitted; internal quotation marks omitted.) Shegog v. Zabrecky, 36 Conn.App. 737, 746, 654 A.2d 771, cert. denied, 232 Conn. 922, 656 A.2d 670 (1995). The plaintiff was required to provide expert testimony to prove causation in her malpractice claim. See id., at 746-47, 654 A.2d 771 (explaining three exceptions to rule requiring expert testimony to prove causation). First, the effects that Zoom whitening may have on a patient with sensitive teeth are not obvious. See Sherman v. Bristol Hospital, Inc., 79 Conn.App. 78, 89, 828 A.2d 1260 (2003) (effect morphine may have on patient with heart condition not obvious). Second, the evidence presented at trial did not create a probability that was so strong that a lay juror could form a reasonable belief that the plaintiff's injuries were caused by the Zoom whitening procedure. See Shegog v. Zabrecky, supra, 36 Conn.App. at 747, 654 A.2d 771. Although the plaintiff testified that her teeth sensitivity had significantly increased after the Zoom whitening procedure, she also testified that she suffered from sensitivity prior to the procedure and that she suffered from other ailments prior to the procedure, such as teeth grinding. Third, and finally, we do not believe that the present case involves gross negligence. Cf. Puro v. Henry, 188 Conn. 301, 307-308, 449 A.2d 176 (1982) (gross negligence when needle found in patient after hernia operation). Thus, expert testimony was required to prove causation for her dental malpractice claim. Mogelof was the only expert who testified for the plaintiff. Although we are mindful that "talismanic words" are not required to prove causation; (internal quotation marks omitted) Shegog v. Zabrecky, supra, 36 Conn.App. at 746, 654 A.2d 771 ; Mogelof's testimony failed to support an argument for causation. Mogelof testified that, in his expert opinion, the defendants had breached the standard of care when treating the plaintiff and had failed to properly inform her of the known risks associated with Zoom whitening before obtaining her consent. The plaintiff's counsel, however, never asked him to opine on the issue of causation. Mogelof did not testify, on the basis of a reasonable medical probability, that there was a causal relation between the plaintiff's injuries and the Zoom whitening. In fact, Mogelof testified on cross-examination that he could not say without speculating that the plaintiff's upper teeth sensitivity was related to the Zoom whitening. He also never gave an opinion, through the process of elimination, on whether other factors, apart from the Zoom whitening, could have caused her injuries. Finally, he did not give his opinion through a hypothetical question because the plaintiff's counsel never asked him a hypothetical question pertaining to the issue of causation. We need not determine whether the plaintiff proved causation for her lack of informed consent claim because, even if the court abused its discretion in its evidentiary rulings, the jury still found that the defendants' failure was not the proximate cause of her injuries.

12490411

Benjamin WASHBURNE et al. v. TOWN OF MADISON et al.

Washburne v. Town of Madison

2017-08-15

AC 38721.

1029

1040

167 A.3d 1029

167

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.022978+00:00

Fastcase

Benjamin WASHBURNE et al. v. TOWN OF MADISON et al.

Benjamin WASHBURNE et al. v. TOWN OF MADISON et al. AC 38721. Appellate Court of Connecticut. Argued March 9, 2017 Officially released August 15, 2017 Hugh D. Hughes, with whom, on the brief, were Brian Flood and Alexander Bates, for the appellants (plaintiffs). Matthew Dallas Gordon, with whom, on the brief, was Nicholas Norton Ouellette, for the appellees (defendants). Alvord, Sheldon and Prescott, Js.

5350

34277

PRESCOTT, J. The plaintiff, Jennifer Washburne, who brought the underlying action on behalf of her minor son, the plaintiff Benjamin Washburne (Benjamin), and herself individually, appeals from the summary judgment rendered by the trial court in favor of the defendants-the town of Madison (town); the town's Board of Education (board); Kelly Spooner, the principal of Ryerson Elementary School (Ryerson Elementary); and Erik Delehanty, a substitute physical education teacher-on the ground that the action was barred by governmental immunity. According to the complaint, Benjamin's leg was broken when he was kicked in the shin or ankle by another student while playing soccer at school. The incident occurred during a physical education class at Ryerson Elementary that Delehanty was supervising. The defendants did not provide Benjamin or the other children with shin guards, and Benjamin was not wearing shin guards at the time he was injured, which the plaintiff alleged violated existing school policies and resulted in Benjamin's injuries. The plaintiff claims on appeal that the court improperly rendered summary judgment as a matter of law despite the existence of genuine issues of material fact regarding (1) whether safety guidelines in a curriculum guide, which provided that students playing soccer should "wear shin guards for additional protection," imposed a ministerial duty on the defendants to require the use of shin guards by students, and (2) whether, even if such a duty was discretionary, Benjamin had been subject to imminent harm and, thus, an exception to governmental immunity was applicable. We disagree and, accordingly, affirm the judgment of the trial court. The record before the court, viewed in the light most favorable to the plaintiff as the nonmoving party, reveals the following facts and procedural history. On March 16, 2010, Benjamin was a third grade student at Ryerson Elementary. On that day, as part of an organized activity during a gym class supervised by Delehanty, Benjamin and his classmates were permitted to play soccer on the school's athletic field. Before allowing them to play, Delehanty instructed the children about safety and the rules of the game, but he did not require the children to wear shin guards. Several minutes into the scrimmage, Benjamin was kicked in the shin or ankle by another student, which resulted in a fracture to Benjamin's lower left tibia and fibula. The plaintiff commenced this action against the defendants on February 3, 2012. The complaint contained eight counts, each sounding in negligence. Count one invoked General Statutes § 52-557n and claimed that Benjamin's injuries were the result of negligence by the town. The next three counts of the complaint, which also were brought on behalf of Benjamin, alleged negligence on the part of Spooner, Delehanty, and the board, respectively. The remaining four counts, one against each of the defendants, were brought by the plaintiff in her individual capacity to recover funds spent caring for Benjamin's injuries and on his recovery. The gravamen of the plaintiff's negligence claims was that rules, policies, or procedures of the school district required students to wear shin guards when playing soccer, but no shin guards were provided to Benjamin on the day he was injured. The defendants filed an answer to the complaint on November 20, 2012, denying the negligence allegations. They also asserted by way of a special defense that the town and its agents were immune from liability for any alleged negligence on the basis of governmental immunity, citing § 52-557n(a)(2)(B). The plaintiff filed a reply denying all allegations of the special defense. On August 1, 2014, the defendants filed a motion for summary judgment. The defendants claimed that they were entitled to judgment on all counts of the complaint as a matter of law because of the discretionary act immunity afforded by § 52-557n(a)(2)(B), and because the plaintiff could not show that Benjamin was an identifiable person subject to imminent harm, as required to fall within the relevant exception to governmental immunity. In support of the motion for summary judgment, the defendants submitted a memorandum of law attached to which were excerpts from copies of the depositions of Spooner and Delehanty. The plaintiff filed an opposition to the motion for summary judgment on March 19, 2015. According to the plaintiff, there were genuine issues of material fact that should be resolved by the jury concerning whether the defendants had a ministerial duty, as set forth in a school policy or directive, to ensure that students wore shin guards when playing soccer at school. The plaintiff further argued that, even if the decision to require shin guards was discretionary in nature, there remained a genuine issue of material fact as to whether Benjamin was an identifiable person subject to imminent harm, and, thus, whether an exception to governmental immunity applied. Attached as exhibits to the opposition were portions of the town's responses to interrogatories; a chart from a curriculum guide titled "Madison Public Schools Physical Education Program: A Framework for Integrated Teaching and Learning" (physical education guide); portions of Madison Public Schools' "Student Welfare/Safety Requirements"; and additional excerpts from Spooner's and Delehanty's depositions. The defendants filed a reply memorandum in support of summary judgment and in response to the plaintiff's opposition on July 1, 2015. Attached to the reply was an affidavit by James Flanagan, a physical education teacher and physical education coordinator for the board who was responsible for the drafting of the physical education guide; additional excerpts from the physical education guide; and a copy of Benjamin's "Medical Release From Elementary Physical Education," which indicated that, despite a physical issue regarding his foot, he could participate in most regular physical education activities, including playing soccer. The only restricted activity noted was participation in the mile run. The plaintiff filed a response to the reply memorandum on July 31, 2015, attached to which were excerpts from a publication titled "Madison Public Schools Department of Athletics 2009-2013 Handbook for Student-Athletes, Parents and Coaches"; excerpts from Flanagan's deposition testimony; and another copy of Flanagan's affidavit. That same day the defendants filed a short surreply. The court, Nazzaro, J. , heard argument on the motion for summary judgment at a hearing on August 3, 2015. On November 5, 2015, the court issued a memorandum of decision rendering judgment on all counts of the complaint in favor of the defendants. The court concluded on the basis of the pleadings and evidence submitted by the parties that the defendants were entitled to governmental immunity as a matter of law. Specifically, the court determined that the defendants had established their prima facie entitlement to summary judgment because the court's construction of relevant excerpts from the physical education guide and the averments of Flanagan established that the use of shin guards by students was not a mandatory requirement but, rather, involved a discretionary determination as to whether the extra protection afforded by shin guards was warranted under the circumstances. The court also determined that the evidence submitted by and relied upon by the plaintiff in opposition to the summary judgment motion failed to raise a genuine issue of material fact regarding whether the supervision of students playing soccer during a physical education class was a ministerial act or that any policy or procedure in place was intended to limit the discretion of the defendants or prescribe "how to instruct on and provide safety equipment for soccer played during physical education class." The court also determined that the plaintiff had failed to establish that a genuine issue of material fact existed regarding the identifiable person/imminent harm exception to governmental immunity. In particular, the court stated that the plaintiff's arguments and evidence could not support a determination that the harm suffered was imminent. The court reasoned that although the plaintiff had established that a potential for injury may have been apparent to the defendants, she had failed "to present evidence to demonstrate that the probability of injury to students from not wearing shin guards in gym class was so high that the defendants had a clear and unequivocal duty to act immediately to prevent harm, namely, to provide shin guards for students." The plaintiff filed a motion for reargument and reconsideration, which the court denied. This appeal followed. Before turning to the plaintiff's claims on appeal, we begin by setting forth the standard of review applicable to a trial court's decision to grant a motion for summary judgment. "Practice Book § [17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.... The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . and the party opposing such a motion must provide an evidently foundation to demonstrate the existence of a genuine issue of material fact.... [I]ssue-finding, rather than issue-determination, is the key to the procedure.... [T]he trial court does not sit as the trier of fact when ruling on a motion for summary judgment.... [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist.... Our review of the decision to grant a motion for summary judgment is plenary.... We therefore must decide whether the court's conclusions were legally and logically correct and find support in the record." (Internal quotation marks omitted.) DiMiceli v. Cheshire , 162 Conn.App. 216, 221-22, 131 A.3d 771 (2016). I The plaintiff first claims that the court improperly rendered summary judgment as a matter of law because a genuine issue of material fact existed about whether safety guidelines in the board's physical education guide, specifically, a provision indicating that students should "wear shin guards for additional protection," created a ministerial duty, the implementation of which was not protected by governmental immunity. We are not persuaded. The following additional facts are relevant to this claim. In opposing summary judgment, the plaintiff argued that the defendants had a ministerial duty to ensure that all children wore shin guards when playing soccer during physical education classes. In support of that argument, the plaintiff cited to the physical education guide, which included a section titled "Safety Guidelines." That section was in chart format, broken down by sport. Under each sport heading, there were five columns with the following subheadings: "equipment," "clothing/footwear," "facilities," "special rules/ instruction," and "supervision." For soccer, the following bullet points were listed under the subheading of clothing/footwear: "no metal or molded cleats"; "wear suitable footwear and clothing"; "wear shin guards for additional protection"; "wear sun protection"; and "no jewelry." In Flanagan's affidavit, he averred that the use of shin guards was, as indicated in the safety guidelines, only for additional or extra protection, and was meant only as a suggestion to be exercised at the discretion of the individual teacher, not as an absolute requirement. Flanagan also explained that one of the reasons that shin guards were not mandatory equipment was because cleats were prohibited in gym class. He further indicated that there were no notes, records, or other information on file that would have alerted Delehanty that Benjamin needed the additional protection of shin guards. The plaintiff submitted no counteraffidavit or evidence, other than the physical education guide, to directly contradict Flanagan's explanation of the guide. We next set forth the well settled law in this state regarding the liability of municipalities and municipal agents. Although, at common law, a municipality generally was immune from liability for any tortious acts, our Supreme Court has long recognized that "governmental immunity may be abrogated by statute." Williams v. New Haven , 243 Conn. 763, 766, 707 A.2d 1251 (1998), citing Wysocki v. Derby , 140 Conn. 173, 175, 98 A.2d 659 (1953). General Statutes § 52-557n(a)(1) provides in relevant part: "Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties ." "This language clearly and expressly abrogates the traditional common-law doctrine in this state that municipalities are immune from suit for torts committed by their employees and agents." Spears v. Garcia , 263 Conn. 22, 29, 818 A.2d 37 (2003). Subdivision (2) of § 52-557n(a), however, contains two significant limitations to the statutory abrogation of governmental immunity. The exception at issue in the present appeal provides as follows: "Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by . (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law." General Statutes § 52-557n(a)(2)(B). The statutory scheme of § 52-557n, accordingly, distinguishes between discretionary and ministerial acts, "with liability generally attaching to a municipality only for negligently performed ministerial acts, not for negligently performed discretionary acts.... "The hallmark of a discretionary act is that it requires the exercise of judgment.... In contrast, [m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion.... In order to create a ministerial duty, there must be a city charter provision, ordinance, regulation, rule, policy, or any other directive [compelling a municipal employee] to [act] in any prescribed manner." (Citation omitted; internal quotation marks omitted.) DiMiceli v. Cheshire , supra, 162 Conn.App. at 224, 131 A.3d 771. It is important to emphasize that "[e]xceptions to governmental immunity will be found only if there is a duty to act that is so clear and unequivocal that the policy rationale underlying discretionary act immunity-to encourage municipal officers to exercise judgment-has no force." (Emphasis added; internal quotation marks omitted.) Ventura v. East Haven , 170 Conn.App. 388, 402, 154 A.3d 1020, cert. granted, 325 Conn. 905, 156 A.3d 537 (2017), citing Bonington v. Westport , 297 Conn. 297, 307, 999 A.2d 700 (2010). Thus, only "[i]f by statute or other rule of law the official's duty is clearly ministerial rather than discretionary" will a cause of action then lie for an individual injured as a result of an official's allegedly negligent performance. (Emphasis added.) Shore v. Stonington , 187 Conn. 147, 153, 444 A.2d 1379 (1982). "Although the determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder . there are cases [in which that determination] is apparent from the complaint.... [W]hether an act or omission is discretionary in nature and, thus, whether governmental immunity may be successfully invoked pursuant to § 52-557n(a)(2)(B), turns on the character of the act or omission complained of in the complaint.... Accordingly, where it is apparent from the complaint that the defendants' allegedly negligent acts or omissions necessarily involved the exercise of judgment, and thus, necessarily were discretionary in nature, summary judgment is proper." (Citation omitted; emphasis omitted; internal quotation marks omitted.) DiMiceli v. Cheshire , supra, 162 Conn.App. at 224-25, 131 A.3d 771. Furthermore, as this court explained in Ventura v. East Haven , supra, 170 Conn.App. at 388, 154 A.3d 1020, anytime a determination of whether official acts are ministerial or discretionary "turns on the interpretation of a municipal ordinance or policy," this raises a question of law that "is inappropriate for a jury to decide." Id., at 403, 154 A.3d 1020, citing, inter alia, Honulik v. Greenwich , 293 Conn. 698, 710, 980 A.2d 880 (2009) (noting principles of statutory construction govern interpretation of town policies), and General Accident Ins. Co. of America v. Powers, Bolles, Houlihan & Hartline, Inc. , 38 Conn.App. 290, 296-97, 660 A.2d 369 (improper to instruct jury to decide question of law requiring statutory interpretation), cert. denied, 235 Conn. 904, 665 A.2d 901 (1995). The interpretation of policy language is, thus, properly decided by the court, subject to our plenary review. Ventura v. East Haven , supra, at 403, 154 A.3d 1020. As indicated, we construe a municipally created rule, directive, or policy pursuant to the principles of statutory construction. "The principles that govern statutory construction are well established. When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply.... In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.... When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter ." (Internal quotation marks omitted.) Id., at 404-405, 154 A.3d 1020. Turning to the present case, we are unconvinced on the basis of our review of the evidence submitted in conjunction with the summary judgment proceedings that any language in the safety guidelines clearly imposed a ministerial duty on the defendants to provide Benjamin and the rest of his classmates with shin guards or to ensure that shin guards were worn whenever the children played soccer. The defendants presented evidence to demonstrate that the decision of whether to require shin guards involved the exercise of judgment and, thus, was inherently discretionary in nature, and the plaintiff simply provided no evidence in rebuttal that raised a genuine issue of material fact on that issue. The plaintiff, in arguing that the defendants violated a ministerial duty, had the burden of demonstrating the existence of a clear and unequivocal policy or other written directive mandating the use of shin guards by the town's third grade students. In attempting to meet that burden, the plaintiff primarily relied upon language found in the soccer section of a chart taken from the board's physical education guide. Specifically, the plaintiff directs the court's attention to a single bullet point stating, "wear shin guards for additional protection." That language by itself, however, is not the type of clear, directory language that courts have found to impose on schools or physical education teachers a ministerial duty "to be performed in a prescribed manner without the exercise of judgment or discretion." (Internal quotation marks omitted.) DiMiceli v. Cheshire , supra, 162 Conn.App. at 224, 131 A.3d 771. For example, nowhere in the guide is it stated that gym teachers are "required to," "must," or "shall ensure" that all students wear shin guards whenever playing soccer. The plaintiff has not produced any regulation, rule, or other directive promulgated by the town or the board to that effect. Significantly, the chart relied on by the plaintiff comes from a section of the physical education guide titled, "Materials and Resources," in a subsection titled "Physical Education Safety Guidelines." The words "Safety Guidelines" are also clearly printed on top of the chart. The inclusion of the safety guidelines in this chapter suggests that they were intended to be used by teachers as a "resource" or information, rather than as strict policy directives that they were obligated to adhere to without the exercise of discretion or independent judgment. In common parlance, a "guideline" is generally understood to reflect an informed suggestion or a best practice. Thus, the use of the term "guidelines," rather than "mandates" or "directives," implies that, except where accompanied by specific and clear directory language, the bullet points in the safety guideline charts were informative rather than mandatory in nature. Certainly, taken out of context, the phrase "wear shin guards" might be construed, as a matter of grammar, as an imperative statement, arguably mandating the use of shin guards. In the present case, however, that phrase is followed by the modifier, "for additional protection," suggesting that some additional judgment or discretion needed to be exercised to determine whether such additional protection was needed before the phrase would become directive. Furthermore, the phrase is but one of several bullet points addressing clothing and footwear, and follows a more clearly directive notation, "no metal or molded cleats." Because cleats are expressly forbidden in gym classes, this logically renders the use of shin guards relatively less important as a safety concern and, in fact, renders more significant the latter, "for additional protection," language. Moreover, in the section of the chart dedicated to "special rules/instructions" for soccer, there is nothing requiring an instruction on the use of shin guards, which one would expect to find if the use of shin guards were, in fact, mandatory. To the extent that the phrase "wear shin guards for additional protection" is ambiguous, and thus susceptible to different meanings, that fact alone supports a determination that the language in the physical education guide was not intended to be a clear and unequivocal waiver of governmental immunity. That notion finds further support in Flanagan's affidavit, in which he describes the physical education guide as generally representing "an articulation of what students should know and be able to do and supports teachers in knowing how to achieve these goals." Flanagan's understanding comports with our own construction of the guide as simply a resource for information, and undermines the plaintiff's position that the safety guidelines in the guide were intended as mandates that the defendants were obligated to adhere to without the exercise of discretion. In short, the sole evidence before us regarding the intent of the drafters of the physical education guide and the language in question indicates that it was simply intended to provide information that shin guards could be worn for additional protection. As we have already concluded, whether extra protection was needed and whether to utilize shin guards in any given situation required the exercise of judgment and, in the present case, fell within the discretion exercised by the defendants. We are unconvinced that the trial court improperly determined that the acts or omissions underlying the plaintiff's negligence claims were discretionary in nature and, thus, subject to governmental immunity. Accordingly, we reject the plaintiff's claim. II We next turn to the plaintiff's alternative claim that, even if the defendants' acts or omissions were discretionary in nature, the court improperly granted the defendants' motion for summary judgment because there remained a genuine issue of material fact as to whether Benjamin had been subject to imminent harm and, thus, fell within the identifiable person/imminent harm exception to governmental immunity. We disagree. "The imminent harm exception to discretionary act immunity [for municipalities and their employees] applies when the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm . By its own terms, this test requires three things: (1) an imminent harm; (2) an identifiable [person]; and (3) a public official to whom it is apparent that his or her conduct is likely to subject that [person] to that harm.... [Our Supreme Court has] stated previously that this exception to the general rule of governmental immunity for employees engaged in discretionary activities has received very limited recognition in this state.... [T]he ultimate determination of whether [governmental] immunity applies is ordinarily a question of law for the court . [unless] there are unresolved factual issues material to the applicability of the defense . [in which case] resolution of those factual issues is properly left to the jury." (Internal quotation marks omitted.) Strycharz v. Cady , 323 Conn. 548, 573-74, 148 A.3d 1011 (2016). In Haynes v. Middletown , 314 Conn. 303, 101 A.3d 249 (2014), our Supreme Court reexamined and clarified our jurisprudence with respect to the principle of imminent harm. The court overruled in part its prior holding in Burns v. Board of Education , 228 Conn. 640, 650, 638 A.2d 1 (1994), to the extent that it appeared to narrow the definition of imminent harm to harms arising from dangerous conditions that were temporary in nature. Haynes v. Middletown , supra, at 322-23, 101 A.3d 249. Instead, it reemphasized its earlier interpretation of imminent harm as stated in its decision in Evon v. Andrews , 211 Conn. 501, 559 A.2d 1131 (1989), in which it explained that a harm is not imminent if it "could have occurred at any future time or not at all"; id., at 508, 559 A.2d 1131 ; and clarified that it "was not focused on the duration of the alleged dangerous condition, but on the magnitude of the risk that the condition created." (Emphasis omitted.) Haynes v. Middletown , supra, at 322, 101 A.3d 249. "[W]hen the court in Haynes spoke of the magnitude of the risk . it specifically associated it with the probability that harm would occur, not the foreseeability of the harm." (Citation omitted; emphasis in original; internal quotation marks omitted.) Williams v. Housing Authority , 159 Conn.App. 679, 704-705, 124 A.3d 537, cert. granted on other grounds, 319 Conn. 947, 125 A.3d 528 (2015). In sum, the Supreme Court concluded that "the proper standard for determining whether a harm was imminent is whether it was apparent to the municipal defendant that the dangerous condition was so likely to cause harm that the defendant had a clear and unequivocal duty to act immediately to prevent the harm." Haynes v. Middletown , supra, at 322-23, 101 A.3d 249. In Williams v. Housing Authority , supra, 159 Conn.App. at 679, 124 A.3d 537, this court construed Haynes as setting forth the following four part test with respect to imminent harm. "First, the dangerous condition alleged by the plaintiff must be 'apparent to the municipal defendant.' . We interpret this to mean that the dangerous condition must not be latent or otherwise undiscoverable by a reasonably objective person in the position and with the knowledge of the defendant. Second, the alleged dangerous condition must be likely to have caused the harm suffered by the plaintiff. A dangerous condition that is unrelated to the cause of the harm is insufficient to satisfy the Haynes test. Third, the likelihood of the harm must be sufficient to place upon the municipal defendant a 'clear and unequivocal duty' . to alleviate the dangerous condition. The court in Haynes tied the duty to prevent the harm to the likelihood that the dangerous condition would cause harm.... Thus, we consider 'a clear and unequivocal duty' . to be one that arises when the probability that harm will occur from the dangerous condition is high enough to necessitate that the defendant act to alleviate the defect. Finally, the probability that harm will occur must be so high as to require the defendant to act immediately to prevent the harm." (Citations omitted; emphasis omitted; footnote omitted.) Id., at 705-706, 124 A.3d 537. Applying the Haynes standard to the facts of the present case, the plaintiff's claim fails as a matter of law and, thus, was properly rejected by the trial court. The plaintiff presented no evidence that Delehanty or the defendants were aware that an injury similar to the one suffered by Benjamin was so likely to happen that they should have acted to prevent it by requiring the students to wear shin guards. The only real evidence presented at summary judgment regarding the magnitude of the risk of a student being injured while playing soccer in gym class was contained in the answers to interrogatories provided by the board. The board was asked to identify the number of times during the three year period prior to Benjamin's injury that "a student was injured while participating in a Madison public school gym class." The response was that twenty-eight incidents had occurred. The next interrogatory asked the board to "identify the number of injuries which occurred during a soccer focused gym class." The answer was none. Thus, the probability of a soccer related injury was statistically very low. The plaintiff presented no evidence to dispute those responses or to show that the number of injuries was low because students usually wore shin guards when playing soccer. Certainly, the plaintiff presented evidence that it was apparent to the defendants that an injury to a child playing soccer without shin guards could occur, as evidenced by Flanagan's and Delehanty's deposition testimony acknowledging the potential for such an injury. Foreseeability of an injury, however, does not translate to imminent harm without also showing that the probability that an injury will occur from the dangerous condition-here, the lack of shin guards-is high enough to necessitate that the defendants act to prevent it. Because we agree with the trial court that the plaintiff failed to present evidence demonstrating a genuine issue of material fact regarding the probability of injury to students from not wearing shin guards in third grade gym class, we reject the claim that the court improperly granted summary judgment in favor of the defendants. The judgment is affirmed. In this opinion the other judges concurred. For purposes of clarity and convenience, we refer in this opinion to Jennifer Washburne as the plaintiff, and Benjamin Washburne as Benjamin. Spooner and Delehanty were sued only in their official capacities. As stated in the court's memorandum of decision, the plaintiff alleged that Benjamin's injuries were the result of the following negligent and careless acts and omissions: "failure to establish rules or guidelines of supervision and protection of students participating in soccer during school hours; failure to and/or inadequate supervision of students participating in soccer during school hours; failure to establish guidance on how to structure soccer to prevent injury; failure to adopt, instruct, or enforce rules to protect students and prevent injury to students in physical activities and physical education; failure to put in place the proper student to teacher ratio for physical education class and sufficient staff to supervise students; failure to properly train and screen substitute teachers, administrators, and staff to prevent harm to students; permitted substitute teachers without proper training to supervise students; and did not require or provide safety equipment for soccer." In addition, the plaintiff alleged that "the defendants knew or should have known that participation in soccer with[out] safety equipment subjected students to injury; permitting subordinates without proper training to supervise students posed a risk of harm; and safety procedures were needed and warranted." In opposing summary judgment, the plaintiff limited her argument that the alleged negligent acts or omissions of the defendants were ministerial in nature to those allegations related to the defendants' failure to follow existing rules requiring students to wear shin guards. Because that is also the sole issue briefed on appeal, we need not consider any unrelated specifications of negligence. See Verderame v. Trinity Estates Development Corp., 92 Conn.App. 230, 232, 883 A.2d 1255 (2005) (claims not raised and adequately briefed on appeal deemed abandoned). We note that the defendants do not dispute that Benjamin was an "identifiable person" for purposes of the exception, conceding at oral argument on the motion for summary judgment that, as a schoolchild, "[h]e belongs, most likely, to the only set of identifiable persons for purposes of applying the exception that exists in Connecticut." For purposes of our analysis, we focus on the disputed issue of imminent harm.

12490407

STATE of Connecticut v. Ever Lee HOLLEY

State v. Holley

2017-07-11

(AC 38115).

1000

1011

167 A.3d 1000

167

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.022978+00:00

Fastcase

STATE of Connecticut v. Ever Lee HOLLEY

STATE of Connecticut v. Ever Lee HOLLEY (AC 38115). Appellate Court of Connecticut. Argued February 6, 2017 Officially released July 11, 2017 Jeremiah Donovan, for the appellant (defendant). Kathryn W. Bare, assistant state's attorney, with whom, on the brief, was Peter A. McShane, state's attorney, for the appellee (state). Alvord, Sheldon and Mullins, Js.

5476

34615

MULLINS, J. The defendant, Ever Lee Holley, appeals from the judgment of conviction, rendered after a jury trial, of possession of a narcotic substance with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278(b). On appeal, the defendant claims that the trial court improperly (1) instructed the jury on reasonable doubt and (2) denied his motion to suppress evidence. We reject both of these claims and, therefore, affirm the judgment of the trial court. The jury reasonably could have found the following facts. On December 11, 2012, the narcotics unit of the Middletown Police Department executed a search and seizure warrant on the residence of Rachel Sweeney at 165 South Main Street in Middletown. Sweeney was arrested on drug possession charges as a result of the search. At the time the warrant was executed, the defendant and another person were sitting in a car parked in the area behind 165 South Main Street. One officer detained the defendant while others searched Sweeney's residence. After police completed the search, David Skarzynski, a parole officer who had assisted the Middletown officers in executing the warrant, was alerted to the defendant's presence outside the residence. Skarzynski recognized the defendant as a parolee who previously had been under his supervision. Skarzynski asked the defendant for permission to search his residence at 29 Avon Court in Middletown. The defendant consented. Skarzynski and officers with the narcotics unit traveled to the defendant's residence. Upon conducting a search of the defendant's bedroom, the officers recovered, among other items, 16.529 grams of crack cocaine from a locked safe located underneath the defendant's bed. The defendant was arrested and charged with possession of a narcotic substance with the intent to sell in violation of § 21a-278(b). After a jury found the defendant guilty of that offense, the court sentenced him to ten years incarceration, five years of which were mandatory, followed by eight years of special parole. This appeal followed. I REASONABLE DOUBT INSTRUCTION The defendant's first claim is that part of the court's instruction on reasonable doubt was improper. Specifically, he argues that the court erred in describing reasonable doubt as follows: "[Reasonable doubt] is such a doubt as, in serious affairs that concern you, you will heed; that is, such a doubt as would cause reasonable men and women to hesitate to act upon it in matters of importance." The defendant asserts that the language used in this part of the court's charge was defective in two respects. We address both of his linguistic challenges herein. A The gravamen of the defendant's first challenge is that the "insertion . of the prepositional phrase 'upon it' render[ed] the instruction nonsensical," causing it to "mean the opposite of what it should." He argues that reversal is required because this part of the instruction effectively diluted the state's burden of proof by "muddl[ing] the description of what a reasonable doubt is" and by failing to "impress . upon the [jury] the need to reach a subjective state of near certitude of [the defendant's] guilt." (Emphasis altered; internal quotation marks omitted.) The state responds that the defendant concedes that our appellate courts have upheld instructions employing the "upon it" language. Therefore, it contends that this court, as an intermediate court, is constrained to following that controlling precedent. We agree with the state. We begin by identifying our standard of review and outlining the relevant legal principles. "It is fundamental that proof of guilt in a criminal case must be beyond a reasonable doubt. . The [reasonable doubt concept] provides concrete substance for the presumption of innocence-that bedrock axiomatic and elementary principle whose enforcement lies at the foundation of the administration of our criminal law. . At the same time, by impressing upon the [fact finder] the need to reach a subjective state of near certitude of the guilt of the accused, the [reasonable doubt] standard symbolizes the significance that our society attaches to the criminal sanction and thus to liberty itself. . [Consequently, the defendant] in a criminal case [is] entitled to a clear and unequivocal charge by the court that the guilt of the [defendant] must be proved beyond a reasonable doubt." (Citations omitted; internal quotation marks omitted.) State v. Jackson, 283 Conn. 111, 116-17, 925 A.2d 1060 (2007). "Because our system entrusts the jury with the primary responsibility of implementing the substantive protections promised by the reasonable doubt standard, reasonable doubt jury instructions which appropriately convey [the reasonable doubt concept] are critical to the constitutionality of a conviction." United States v. Doyle, 130 F.3d 523, 535 (2d Cir. 1997). Accordingly, "[a] claim that the court's reasonable doubt instruction diluted the state's burden of proof and impermissibly burdened the defendant is of constitutional magnitude." State v. Alberto M., 120 Conn.App. 104, 115, 991 A.2d 578 (2010). "A challenge to the validity of jury instructions presents a question of law over which this court has plenary review. . It is well settled that jury instructions are to be reviewed in their entirety. . When the challenge to a jury instruction is of constitutional magnitude, the standard of review is whether it is reasonably possible that the jury [was] misled. . In determining whether it was . reasonably possible that the jury was misled by the trial court's instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement . Individual instructions also are not to be judged in artificial isolation. . Instead, [t]he test to be applied . is whether the charge . as a whole, presents the case to the jury so that no injustice will result." (Citation omitted; internal quotation marks omitted.) State v. Brown, 118 Conn.App. 418, 428-29, 984 A.2d 86 (2009), cert. denied, 295 Conn. 901, 988 A.2d 877 (2010). As acknowledged by both parties, our Supreme Court repeatedly has upheld the use of instructions that utilized the very language the defendant challenges. See, e.g., State v. Winfrey, 302 Conn. 195, 218, 24 A.3d 1218 (2011) (instruction explaining that reasonable doubt is " 'such doubt as would cause reasonable men and women to hesitate to act upon it in matters of importance' " not constitutionally infirm); State v. Mark R., 300 Conn. 590, 616-17, 17 A.3d 1 (2011) ("this court has rejected virtually identical claims on multiple occasions"); State v. Johnson, 288 Conn. 236, 288-90, 951 A.2d 1257 (2008) (rejecting challenge to instruction describing reasonable doubt as " 'such a doubt as would cause reasonable [people] to hesitate to act upon it in matters of importance' "); State v. Delvalle, 250 Conn. 466, 474 n.11, 473-75, 736 A.2d 125 (1999) (same); see also State v. Vazquez, 119 Conn.App. 249, 258, 259-61, 987 A.2d 1063 (2010) (not improper to instruct jury that reasonable doubt is " 'doubt as would cause reasonable men and women to hesitate to act upon it in matters of importance' "); State v. Hernandez, 91 Conn.App. 169, 178-79, 883 A.2d 1 (same), cert. denied, 276 Conn. 912, 886 A.2d 426 (2005) ; State v. Otero, 49 Conn.App. 459, 470-74, 715 A.2d 782 (same), cert. denied, 247 Conn. 910, 719 A.2d 905 (1998). "[A]s an intermediate court of appeal, we are unable to overrule, reevaluate, or reexamine controlling precedent of our Supreme Court. . As our Supreme Court has stated: [O]nce this court has finally determined an issue, for a lower court to reanalyze and revisit that issue is an improper and fruitless endeavor." (Internal quotation marks omitted.) State v. Brantley, 164 Conn.App. 459, 468, 138 A.3d 347, cert. denied, 321 Conn. 918, 136 A.3d 1276 (2016). Accordingly, since our Supreme Court already has determined that the challenged description of reasonable doubt is not improper, we cannot conclude to the contrary. B The defendant's second challenge to the court's reasonable doubt instruction concerns the language used in describing reasonable doubt as "a doubt as, in serious affairs that concern you, you will heed." (Emphasis added.) His specific contention is that the court erred in using the word will instead of "the subjunctive 'would ' "; (emphasis in original); and that this error impermissibly diluted the state's burden of proof. Although we review this unpreserved claim pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), we conclude that there is no reasonable possibility that the challenged language misled the jury. The following additional procedural history is relevant to our resolution of the defendant's claim. At the time it instructed the jury, the court provided the jurors and counsel with typewritten copies of its instructions. The court informed the jury that it would deliver its instructions by reading the typewritten version aloud: "As you see, I'm reading these instructions. I do that because they were prepared in advance, and I want to make sure that I say exactly what I intend to say. Do not single out any sentence or individual point or instruction in my charge and ignore the others. You are to consider all the instructions as a whole, and consider each, in light of all the others." The jurors had copies of the written instructions during their deliberations. In the typewritten version of the instructions, reasonable doubt was described, in relevant part, as a "doubt, as in serious affairs that concern you, you would heed." (Emphasis added.) However, the transcript of the trial court proceedings indicates that the court's oral instruction described reasonable doubt as "a doubt, as in serious affairs that concern you, you will heed." The defendant never took an exception to the court's use of the word "will" in its oral instructions. Also, there is no indication in the record that the jury, the court, or counsel noticed the discrepancy between the oral and written instructions. Moreover, the jury did not request clarification as to that discrepancy or on any of the court's instructions pertaining to reasonable doubt and the burden of proof. We next set forth our standard of review and the relevant legal principles. "[U]nder Golding review, as modified in In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015), a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation . exists and . deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." (Emphasis omitted; internal quotation marks omitted.) State v. Polanco, 165 Conn.App. 563, 572, 140 A.3d 230, cert. denied, 322 Conn. 906, 139 A.3d 708 (2016). It is an error of constitutional magnitude to instruct the jury on reasonable doubt in such a manner as to dilute the state's burden of proof. State v. Alberto M., supra, 120 Conn.App. at 115, 991 A.2d 578. "[I]n reviewing a constitutional challenge to the trial court's instruction, we must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury. . The test is whether the charge as a whole presents the case to the jury so that no injustice will result." (Emphasis added; internal quotation marks omitted.) State v. Frasier, 169 Conn.App. 500, 509, 150 A.3d 1176 (2016), cert. denied, 324 Conn. 912, 153 A.3d 653 (2017). Reviewing courts are especially hesitant in reversing a conviction on the basis of an inaccuracy in a trial court's oral instruction if the jury was provided with accurate written instructions. See, e.g., State v. Warren, 118 Conn.App. 456, 464, 984 A.2d 81 (2009) (no constitutional violation where trial court's oral charge suggested written instructions should be used "only . as a guide" because "the [written ] copy of the charge itself correctly guided the jury by stating . that the jury was obligated to accept the law as provided by the court" [emphasis added] ), cert. denied, 294 Conn. 933, 987 A.2d 1029 (2010) ; United States v. Rodriguez, 651 Fed.Appx. 44, 48 (2d Cir. 2016) ("In this case, there is no indication that the jurors were confused by the court's misreading of the instruction. The jury was able to follow along from the correct written instructions during the oral charge, and it had access to those written instructions during its deliberations. . [This] mitigated any risk of confusion ."); United States v. Colman, 520 Fed.Appx. 514, 517 (9th Cir.) ("a [trial] court's misstatement while reading instructions aloud does not constitute reversible error if it provides proper written jury instructions to the jury members"), cert. denied, - U.S. -, 133 S.Ct. 2817, 186 L.Ed. 2d 876 (2013) ; United States v. Ancheta, 38 F.3d 1114, 1117 (9th Cir. 1994) ("The judge provided the jury with proper written instructions. We do not suggest that written instructions necessarily repair an error in oral instructions, since often oral instructions are used to cure typographical and other errors in written instructions. Nevertheless, here there is no reason to suppose that any juror was confused by the judge's slip of the tongue, and probably they understood him to say orally what he meant to say and did say in the written instructions."); People v. Rodriguez, 77 Cal.App.4th 1101, 1113, 92 Cal.Rptr.2d 236 (2000) ("It is generally presumed that the jury was guided by the written instructions. . The written version of jury instructions governs any conflict with oral instructions. . Consequently, as long as the court provides accurate written instructions to the jury to use during deliberations, no prejudicial error occurs from deviations in the oral instructions." [Citations omitted; internal quotation marks omitted.] ). Additionally, reviewing courts are less willing to conclude that a discrepancy between written and oral instructions constitutes reversible error where: (1) defense counsel fails to object to the discrepancy; United States v. Ancheta, supra, 38 F.3d at 1117 ("It was incumbent upon defense counsel to object if the judge erroneously instructed the jury . because the slip of the tongue could easily have been corrected before the jury retired to deliberate. The absence of objection suggests that the mistake was not noticeable or confusing."); and (2) counsel, the parties, the court, and the jury all fail to notice the discrepancy; United States v. Jones, 468 F.3d 704, 710 (10th Cir. 2006) ("The fact that defense counsel as well as the experienced [trial] judge were unperturbed by the error, if they noticed it at all, weighs heavily. . If there had been an indication that anyone in the courtroom-counsel, parties, or jurors-was confused, we might find this a more difficult question." [Citations omitted.] ). Here, because the defendant did not object to the discrepancy between the written and oral instructions, his claim is unpreserved. However, his claim is reviewable because the first two Golding prongs are satisfied. The record is adequate for review, and the defendant's claim that the instruction diluted the state's burden of proof is of constitutional magnitude. We conclude, however, that the defendant has failed to satisfy Golding' s third prong because he has not demonstrated the existence of a constitutional violation that deprived him of a fair trial. When viewed as a whole, the court's oral instruction reasonably would not have misled the jury. Our review of the record convinces us that there is no reasonable possibility that the jury was confused by the court's use of "will" instead of "would." The court informed the jury that it would be reading its instructions from a written version of the instructions. Copies of those written instructions, which accurately used "would" instead of "will" in describing reasonable doubt, were given to the jury to use during deliberations. After the court had read its oral instructions, defense counsel did not object to its use of "will." Indeed, there is no indication that defense counsel, the state, or the court itself noticed the errant use of the word "will." Moreover, after the case was submitted to the jury, the jury did not request any clarification as to the discrepancy relating to "will" and "would," and it did not ask any questions regarding reasonable doubt and the burden of proof. Finally, in reviewing the entirety of the court's oral and written instructions, we conclude that both sets of charges adequately explained the principles governing burden of proof, the presumption of innocence, and reasonable doubt by using several accurate descriptions of those concepts. Accordingly, in the circumstances in this case, we conclude that it was not reasonably possible that the jury was misled by a single word in the court's jury instructions. II MOTION TO SUPPRESS EVIDENCE The defendant's second claim is that the trial court improperly denied his motion to suppress evidence that was seized in a warrantless search of his residence. The defendant contends that such evidence was obtained in violation of the fourth and fourteenth amendments to the United States Constitution and article first, § 7, of the Connecticut Constitution. Specifically, he contends that a warrantless search of a parolee's residence that fails to comply with administrative directives promulgated by the Department of Correction (department) is unconstitutional, even if the parolee had previously executed an agreement authorizing such searches as a condition of his parole. The state's principal response is that we should not review the defendant's federal and state constitutional claims because they are moot. Specifically, it argues that on appeal the defendant fails to challenge an independent basis supporting the trial court's denial of his motion to suppress, namely, the trial court's finding that the defendant verbally consented to the search. We agree with the state. The following additional facts and procedural history are relevant to our resolution of this claim. Prior to trial, the defendant filed a motion to suppress evidence that was seized in a warrantless search of his residence, including 16.529 grams of crack cocaine. In that motion, the defendant's principal argument was that the search was unconstitutional because it was made without a warrant and did not comply with administrative directives promulgated by the department. He also asserted that he had not consented, verbally or in writing, to the search. After a two day evidentiary hearing, the trial court made the following factual findings. "On December 11, 2012, [in the course of executing a search and seizure warrant for the residence of . Sweeney, members of the Middletown police force] encountered a vehicle being operated by [the defendant]. . Parole Officer Skarzynski, who assisted in the execution of the search and seizure warrant, knew [the defendant,] as [the defendant] was previously on his caseload. . [Skarzynski also] was aware that [the defendant] was on lifetime parole. . Skarzynski spoke with [the defendant] and obtained his verbal consent to . conduct a search of his residence. . "Middletown police officers transported [the defendant] to his residence and room within his boarding house. . Skarzynski made a phone call to his . supervisor, [the defendant's] current parole officer, and [the supervisor of the defendant's current parole officer,] requesting their authorization to search [the defendant's] room. . [A]ll [three] gave their verbal consent. When inside the residence . Skarzynski . [and] Middletown police detectives . conducted a search of [the defendant's] bedroom. [U]nder the bed a safe was located . where a large amount of crack cocaine was found." In a written memorandum of decision, the court denied the defendant's motion to suppress the seized evidence. The court articulated two grounds in support of its ruling. First, it rejected the defendant's argument that a warrantless search of a parolee's residence that fails to comply with the department's administrative directives is unconstitutional, even if the parolee had previously executed an agreement authorizing such searches as a condition of his parole. Beginning with a review of the relevant case law, the court noted that "[a]s a parolee, a defendant has a reduced expectation of privacy which allows a warrantless search of his person and residence by his parole officer." The court then found that the defendant gave written consent to the search by executing an agreement called "Conditions of Parole," which was submitted by the state as an exhibit. That agreement, which was signed by the defendant on February 25, 2010, provided in relevant part: "You shall be required to submit to a search of your person, possessions, vehicle, business, residence, or any area under your control at any time, announced or unannounced, with or without cause by parole or its agent to verify your compliance with the conditions of your parole." The court's second ground for denying the defendant's motion to suppress was its finding that the defendant verbally consented to the search: "[The defendant] not only consented in writing to the warrantless search of his residence as a condition of his parole on February 25, 2010, he also gave his verbal consent to . Skarzynski on December 11, 2012." On appeal, the defendant challenges only the first of the trial court's two grounds for denying the motion to suppress. That is, he again presents the argument that a warrantless search of a parolee's residence that fails to comply with the department's administrative directives is unconstitutional, even if the parolee previously had executed an agreement authorizing such searches as a condition of his parole. The defendant does not challenge, however, the court's finding that he verbally consented to the search. Because the finding regarding the defendant's verbal consent constitutes an unchallenged independent basis for the court's ruling, we are compelled conclude that the defendant's claim on appeal is moot. Accordingly, we decline to review the defendant's claim. We set forth the relevant legal principles regarding mootness. "Mootness is a question of justiciability that must be determined as a threshold matter because it implicates [this] court's subject matter jurisdiction. . The fundamental principles underpinning the mootness doctrine are well settled. 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 the 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. . "Where an appellant fails to challenge all bases for a trial court's adverse ruling on his claim, even if this court were to agree with the appellant on the issues that he does raise, we still would not be able to provide [him] any relief in light of the binding adverse finding[s] [not raised] with respect to those claims. . Therefore, when an appellant challenges a trial court's adverse ruling, but does not challenge all independent bases for that ruling, the appeal is moot." (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Lester, 324 Conn. 519, 526-27, 153 A.3d 647 (2017). In State v. Lester, our Supreme Court held that the defendant's appeal from his conviction on the basis of an adverse evidentiary ruling was moot because he did not challenge all of the independent bases supporting the ruling. Id., at 528, 153 A.3d 647. In that case, the state filed a motion in limine to preclude the defendant from introducing evidence of a supposedly false prior allegation of sexual abuse that the eight year old victim made against another person when she was five years old. Id., at 521, 523, 153 A.3d 647. "[T]he trial court granted the state's motion . to exclude evidence of the victim's prior allegation . on the grounds that: it was not admissible under the rape shield statute because the defendant had not provided credible evidence that it was false; it was remote in time; it was dissimilar from the victim's allegation against the defendant; and it was a collateral issue that would confuse the jury." Id., at 527, 153 A.3d 647. On appeal, the defendant in Lester challenged only one of the four grounds on which the trial court relied in its evidentiary ruling, namely, that evidence of the allegation was inadmissible under the rape shield statute. Id., at 524-25, 153 A.3d 647. Our Supreme Court reasoned that the other three grounds were independent bases supporting the court's ruling because they were responses to the state's separate and distinct evidentiary objections pertaining to relevancy and probative value. Id., at 527-28, 153 A.3d 647. Thus, the court concluded that the defendant's failure to challenge those three grounds precluded appellate review of his claim that the trial court incorrectly applied the rape shield statute: "Because there are independent bases for the trial court's exclusion of the evidence of the prior allegation . that the defendant has not challenged in this appeal, even if this court were to find that the trial court improperly applied the rape shield statute, we could grant no practical relief to the defendant." Id., at 528, 153 A.3d 647 ; see also State v. A.M., 156 Conn.App. 138, 141 n.2, 111 A.3d 974 (2015) (unchallenged independent basis rendered claim on appeal moot where trial court admitted forensic interview of victim under three separate exceptions to hearsay rule but defendant challenged trial court's ruling on two exceptions), aff'd on other grounds, 324 Conn. 190, 152 A.3d 49 (2016). In the present case, the trial court denied the defendant's motion to suppress on the following two grounds: (1) by executing an agreement authorizing searches of his residence as a condition of his parole, the defendant gave written consent to the warrantless search at issue; and (2) the defendant gave verbal consent to Skarzynski immediately before the warrantless search at issue occurred. Although not challenged by the defendant in this appeal, the second of those grounds, his verbal consent, is an independent basis supporting the trial court's denial of the defendant's motion to suppress. See State v. Nowell, 262 Conn. 686, 699, 817 A.2d 76 (2003) ("[i]t is . well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search [or seizure] that is conducted pursuant to consent" [internal quotation marks omitted] ); State v. Vaught, 157 Conn.App. 101, 121, 115 A.3d 64 (2015) (warrantless search of residence constitutional where trial court found that homeowner gave valid verbal consent). The trial court's finding that the defendant verbally consented to the search is wholly dispositive of the defendant's motion to suppress, regardless of whether it erred in ruling on the defendant's other arguments that the search was unconstitutional. That is, once the defendant verbally consented to the search, the need for law enforcement to obtain a warrant or comply with the department's administrative directives was obviated. See, e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 36 L.Ed. 2d 854 (1973) ("a search authorized by consent is wholly valid" [emphasis added] ). The defendant does not challenge the court's finding that he verbally consented to the search in this appeal. Consequently, because the defendant has failed to challenge that independent basis supporting the trial court's denial of his motion to suppress, even if this court were to rule in his favor on the claim he presents on appeal, we could grant him no practical relief. Accordingly, the defendant's claim is moot. The appeal is dismissed as moot with respect to the defendant's claim that the trial court improperly denied his motion to suppress evidence; the judgment is affirmed in all other respects. In this opinion the other judges concurred. It appears that there was some confusion in the trial court proceedings regarding the defendant's first name. The state's substituted long form information charged him as "James E. Holley, a.k.a., Ever Lee Holley," but the proceedings in the trial court were captioned as State v. Ever Lee Holley. In its appellate brief, the state now refers to the defendant as "Ever Lee Holley, also known as James Holley." Conversely, the defendant asserts in his appellate brief that his birth name is actually "James Holley." Specifically, he notes that "[a]t sentencing it was determined that the name on [the defendant's] birth certificate is 'James.' " A review of the sentencing transcript reveals that the defendant appears to assert the opposite of what the presentence investigation report discovered with respect to his first name. The trial court stated at the sentencing hearing: "Several discrepancies have arisen regarding Mr. Holley's name, he's been using his dead brother's name of James as an alias for decades, but his birth name is Ever Lee Holley." (Emphasis added.) In any event, because the case was docketed in the trial court and in this court as State of Connecticut v. Ever Lee Holley, and neither party has filed a motion to correct the defendant's name, the case retains its original caption. In a part B information, the state also had charged the defendant with possession of a narcotic substance with the intent to sell as a subsequent offender. Although the jury found the defendant guilty of being a subsequent offender, the court granted the defendant's motion for acquittal with respect to this part of the jury's verdict. Additionally, the United States Supreme Court has endorsed a description of reasonable doubt that virtually is identical to the one challenged by the defendant in this case. See Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 99 L.Ed. 150 (1954) (citing with approval instruction given in Bishop v. United States, 107 F.2d 297, 303 [D.C. Cir. 1939], which defined reasonable doubt as "doubt [that] would cause reasonable men to hesitate to act upon it in matters of importance to themselves"). Although in closing argument defense counsel described reasonable doubt as a "doubt that, in your own serious affairs, you would heed," he did not take an exception or request clarification when the court subsequently used will instead of would in its instructions. We also note that the state did not make an argument with respect to either word during its closing argument. We also note that the United States Court of Appeals for the Second Circuit recently held that an arguably more problematic discrepancy between written and oral instructions did not confuse the jury. United States v. Rodriguez, supra, 651 Fed.Appx. at 47-48 (no constitutional violation where oral charge instructed jury to find defendant not guilty if "defendant ha[d] failed to prove [his self-defense claim] beyond a reasonable doubt" because written charge correctly instructed jury that government had burden of disproving defendant's claim of self-defense [emphasis in original] ). The fourth amendment to the United States constitution provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The fourth amendment's protection against unreasonable searches and seizures is made applicable to the states through the due process clause of the fourteenth amendment to the United States constitution. See Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Article first, § 7, of the constitution of Connecticut provides: "The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation." The state also argues that the defendant failed to preserve his state constitutional claims by not presenting an analysis pursuant to State v. Geisler, 222 Conn. 672, 610 A.2d 1225 (1992), to the trial court. Because we conclude that the defendant's state and federal constitutional claims both are moot, we need not address this preservation argument. The court also made a finding that the search had in fact "substantially complied with parole regulations" because Skarzynski "obtain [ed] authorization" from "his parole manager and the parole manager of [the defendant's] probation officer" before conducting the search. The defendant also argues that the court erroneously found that the search was conducted in "substantial" compliance with the department's administrative directives. See footnote 9 of this opinion.

12489045

Stephen D. BENJAMIN et al. v. CITY OF NORWALK et al.

Benjamin v. City of Norwalk

2016-12-27

AC 37876

669

684

153 A.3d 669

153

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.010181+00:00

Fastcase

Stephen D. BENJAMIN et al. v. CITY OF NORWALK et al.

Stephen D. BENJAMIN et al. v. CITY OF NORWALK et al. AC 37876 Appellate Court of Connecticut. Argued September 20, 2016 Officially Released December 27, 2016 Simon Sumberg, Norwalk, for the appellants (plaintiffs). Urban S. Mulvehill, self-represented, the appellee (defendant). Lavine, Mullins and Harper, Js.

7472

44951

LAVINE, J. The plaintiffs, Stephen D. Benjamin and Helen Z. Benjamin, appeal from the judgment of the trial court denying their claim of adverse possession of 708 square feet of land adjacent to their home in Norwalk (contested area). On appeal, the plaintiffs claim that the court erred by (1) finding that The Shorefront Park Company dedicated all of the roads shown on a subdivision map for the use of the defendant city of Norwalk (city), (2) determining that it was their burden to rebut municipal acceptance of dedicated roadways by clear and convincing evidence, and (3) finding that dominion over the contested area was shared. We affirm the judgment of the trial court. The plaintiffs commenced the present action against the city, The Shorefront Park Improvement Association, Inc., and several individual defendants on December 17, 2009. The plaintiffs sought a judgment vesting title to the contested area in them, claiming that they had established possession of the area to the exclusion of all others and had acquired title to the contested area by adverse possession. The case was tried to the court over three days in October, 2014. The court made the following findings of fact in its April 14, 2015 memorandum of decision. The plaintiffs acquired title to their home at 40 Quintard Avenue (property) from the estate of Mary Ann Cocchia on June 18, 1992. The property is located in the Shorefront Park subdivision within the city. The Cocchia family had owned the property, which is located just inside the subdivision's western boundary, since June 17, 1959. Between the property and Quintard Avenue, a city street, runs a road called either "Shorefront Park" or "Private Way." The point where that road meets Quintard Avenue is marked by two stone pillars, which are approximately sixteen feet apart. A curb cut runs between the pillars, and a sign bearing the words "Shorefront Park" is posted on one of the pillars. A wider opening to the subdivision lies directly to the south of the pillars. The court found that, although there is no curb cut at the wider opening, the curb has been worn down by vehicular use. The contested area is approximately 708 square feet in size, and occupies the space between the pillars and the southwest edge of the property. The plaintiffs consider the pillars to be the entrance to their driveway and the contested area to be part of their driveway. The defendants, however, view the pillars to be a public entrance to the subdivision and the contested area to be a portion of "Shorefront Park" or "Private Way," which they claim is a public roadway. The court found that the contested area is not included in the title or deed to the plaintiffs' property. The plaintiffs, however, claim that the Cocchia family acquired ownership to the contested area by adverse possession because they treated the area as their driveway for at least fifteen years after they acquired the property in 1959. The plaintiffs also claimed that they have treated the contested area as their driveway since they acquired title to the property in 1992. The defendant Urban S. Mulvehill (Mulvehill) countered the plaintiffs' claim with two arguments: (1) the contested area was dedicated to and accepted by the city in 1930, along with all of the other roadways in the subdivision, and property owned by a municipality may not be adversely possessed; and (2) even if the contested area were not included in the 1930 dedication, neither the plaintiffs' nor the Cocchias' use of the area was sufficient to establish title to the contested area in them via adverse possession. The plaintiffs responded to Mulvehill's arguments by asserting that, even if the contested area had been dedicated to the city, the city had abandoned the area by failing to maintain it or otherwise treat it as a public roadway. In support of their claim, the plaintiffs placed into evidence the April, 1930 minutes of the city council, which include the following relevant language: "To the Honorable Mayor and Council of the City of Norwalk: "Gentlemen: "The Shorefront Park Company hereby petitions for the acceptance of the highways shown on [the] attached map of Shorefront Park. All highways asked to be accepted are fifty (50) feet in width and in good condition and in all of them have been laid water and gas mains at the Company's expense. The City is collecting taxes on twenty-six houses erected in the development and up to date has not been obliged to expend any money for construction or repairs. "Dated at Norwalk, Conn. this 18th day of March 1930. "The Shorefront Park Company "By (Signed) Mark Haut "Its Secretary "Councilman Charpentier stated that Mr. Jutten investigated the condition of the highways in Shorefront Park and found them in good condition and recommends their acceptance. "A motion that the highways in Shorefront Park as designated on map entitled 'Map of Part of Shorefront Park Property of The Shorefront Park Co. Norwalk Conn. Aug. 1924' be accepted was seconded and carried." (Footnote added.) The plaintiffs claim, on the basis of the April, 1930 minutes, that although the city may have purported to accept all of the highways depicted on the subdivision map, it could not have accepted any roads fewer than fifty feet in width because those roads were never offered. The plaintiffs claim, therefore, that neither the contested area nor the private way leading to it could have been accepted by the city because the road at that location is only sixteen feet wide. The court found that, according to the city's land records, The Shorefront Park Company remains the record owner of the contested area, but that it is unclear from the complaint or the record whether The Shorefront Park Company remains the record owner of all of the subdivision's highways or only the small portion of road claimed by the plaintiffs. The subdivision map on which the city council relied in 1930 was entered into evidence by the plaintiffs as exhibit 8. The subdivision map depicts one continuous highway that winds throughout the subdivision and is labeled at various locations either "Shorefront Drive" or "Private Way," the latter being the designation given to the section of the highway where the contested area is located. Markings indicating a fifty foot width appear at sections of the highway labeled "Private Way," as well as at sections labeled "Shorefront Drive." The court first determined whether the actions taken at the April, 1930 meeting of the city council are evidence of a dedication and acceptance of the contested area. In doing so, the court relied on Vernon v. Goff , 107 Conn.App. 552, 945 A.2d 1017, cert. denied, 289 Conn. 920, 958 A.2d 154 (2008), for guidance: "From early times, under the common law, highways have been established in this state by dedication and acceptance by the public. . [T]wo elements are essential to a valid dedication: (1) a manifested intent by the owner to dedicate the land involved for the use of the public; and (2) an acceptance by the proper authorities or by the general public. . No particular formality is required in order to dedicate a parcel of land to a public use; dedication may be express or implied. . Whether there has been a dedication and whether there has been an acceptance present questions of fact. . Likewise, the determination of the extent to which there has been an acceptance of a street involves a question of fact." (Internal quotation marks omitted.) Id., at 556-57, 945 A.2d 1017. The court also noted that "[w]hether there has been a dedication and whether there has been an acceptance are questions of fact . for which the burden of proof rests upon the [party who claims that the property in question belongs to the public]." (Citation omitted; internal quotation marks omitted.) Drabik v. East Lyme , 234 Conn. 390, 397, 662 A.2d 118 (1995). A party claiming title by adverse possession, however, must prove, by clear and convincing evidence, that the contested area was not dedicated to the city. See American Trading Real Estate Properties, Inc. v. Trumbull , 215 Conn. 68, 80, 574 A.2d 796 (1990) ; Shepard Group, LLC v. Arnold , 124 Conn.App. 41, 44, 3 A.3d 975 (2010). In the present case, the trial court found, by a preponderance of the evidence, the existence of both an express dedication of the highways in the subdivision and an express acceptance of the contested area by the city, and that the plaintiffs had failed to prove, by clear and convincing evidence, that the contested area was not dedicated with the rest of the subdivision's highways. The court found that the minutes of the April, 1930 city council meeting record The Shorefront Park Company petitioning the city "for the acceptance of the highways shown on attached map of Shorefront Park." (Internal quotation marks omitted.) The minutes state that "[a]ll highways asked to be accepted are fifty (50) feet in width and in good condition and in all of them have been laid water and gas mains at the Company's expense." The minutes also recorded Charpentier's representation that Jutten had investigated "the condition of the highways in Shorefront Park and found them in good condition and recommends their acceptance"; and that a motion was made and seconded that "the highways in Shorefront Park as designated on map entitled 'Map of Part of Shorefront Park Property of The Shorefront Park Co. Norwalk Conn. Aug. 1924' be accepted ." Moreover, the motion was carried. The plaintiffs contended at trial that the contested area could not have been dedicated because it is fewer than fifty feet wide. The court found, however, that the city council's acceptance made no mention of the width of the highways as a condition of acceptance and The Shorefront Park Company did not object to the acceptance of all of the highways designated on the subdivision map. The court found that the map relied on by the city council, plaintiffs' exhibit 8, reveals that the subdivision highways consist of a single winding road that, at many points, is fifty feet wide, but that narrows before reaching the contested area. The court concluded that it did not logically follow from a description of a highway as being fifty feet wide that, if the highway narrows at some point, the narrower portion is not, nonetheless, a portion of the same highway. The court rejected the plaintiffs' argument that The Shorefront Park Company intended to exclude portions of highway narrower than fifty feet from the dedication. The court found the argument unconvincing, particularly in the absence of any evidence that The Shoreline Park Company asserted any right with respect to the portions of highway fewer than fifty feet wide during the thirty years between the dedication and the company's dissolution in 1959. Also, the court found no evidence that the shareholders of The Shorefront Park Company transferred any interest in those portions of roadway during their lives or devised any interest in the roadway as part of their estates. The court concluded that the plaintiffs had failed to prove, by clear and convincing proof, that the city's acceptance was not express and did not include the contested area. The city council passed a motion to accept all of Shorefront Park's highways, as designated on the 1924 map, without reference to the width of the highways. Because it had determined that all of the highways, including the contested area, were expressly offered by The Shoreline Park Company, it found that the city's express acceptance could and did include them. The court further found that the city did not abandon the contested area and that the plaintiffs had not obtained title to the contested area by way of adverse possession. The court, therefore, rendered judgment in favor of the defendants. Thereafter the plaintiffs appealed. The plaintiffs subsequently filed a consolidated motion for articulation and motion for rectification, which the court granted in part and denied in part. In its ruling on the plaintiffs' consolidated motion, the court stated that "the evidence supports an understanding of The Shorefront Park Company's intention and actions as an express dedication of all of the highways within Shorefront Park to the city of Norwalk, without any exclusion or retaining of interest in portions of the highways which were less than fifty feet wide.... This finding supports the court's ultimate conclusion that the contested area is part of a public highway belonging to the city of Norwalk.... The court, however, was not presented with and did not consider evidence regarding a dispute as to the dedication and acceptance of any other particular segment of Shorefront Park highway. The court's holding, therefore, is confined to its ultimate conclusion regarding the contested area." (Citations omitted; internal quotation marks omitted.) Additional facts will be set forth as necessary. I The plaintiffs first claim that the court's finding that The Shorefront Park Company dedicated all of the roads depicted on the subdivision map for the use of the city was clearly erroneous. We disagree. We first set forth the applicable standard of review. "Our review of the factual findings of the trial court is limited to a determination of whether they are clearly erroneous. . A finding of fact is clearly erroneous when there is no evidence in the record to support it . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . Because it is the trial court's function to weigh the evidence and determine credibility, we give great deference to its findings." (Internal quotation marks omitted.) Ridgefield v. Eppoliti Realty Co. , 71 Conn.App. 321, 328, 801 A.2d 902, cert. denied, 261 Conn. 933, 806 A.2d 1070 (2002). An understanding of the law and history of establishing highways in this state provides a useful background for our resolution of the plaintiffs' claim. Public highways may be established by one of four methods: "(1) through the direct action of the legislature; (2) through authorized proceedings involving an application to a court; (3) through authorized proceedings by agents appointed for that purpose, such as selectmen of towns . and specified authorities of cities and boroughs . (4) through private dedication of land for that purpose and its acceptance by the public." (Citations omitted; internal quotation marks omitted.) Montanaro v. Aspetuck Land Trust, Inc. , 137 Conn.App. 1, 9, 48 A.3d 107, cert. denied, 307 Conn. 932, 56 A.3d 715 (2012), quoting Makepeace v. Waterbury , 74 Conn. 360, 361, 50 A. 876 (1902). "The layout of a street or highway by a private person, company or corporation and the regulation of its width unless determined otherwise by authority have been a part of our statute law since 1899. Public Acts 1899, c. 205 § 2; Windsor v. Whitney , 95 Conn. 357, 365, 111 A. 354 [ (1920) ]. Since that time our statutes have provided that no street or highway laid out by any private person, company or corporation shall be opened to the public (1) until the grade, width and improvements of such street or highway shall have the written approval of the selectmen of the town or, in case the location is within the limits of a city or borough, the approval of the common council of the city or the warden and burgesses of the borough or (2) until such approval has been filed in the office of the clerk of the town, city or borough, as the case may be." Thompson v. Portland , 159 Conn. 107, 111-12, 266 A.2d 893 (1970). In Stratford v. Fidelity & Casualty Co. , 106 Conn. 34, 39, 137 A. 13 (1927), our Supreme Court said that the dedication statute in effect at that time "has to do with the layout and improvement of roads or streets by individuals or private corporations, and the approval of the selectmen is an approval of the layout and opening of private ways and not of public highways; it looks to the possibility of their becoming public highways, but does not constitute an acceptance of them as such." "Immediately following this decision, the legislature enacted chapter 248 of the Public Acts of 1927. Section 1 of that act (now General Statutes [Rev. to 1966] § 13a-48) gave specific authority to a municipality at any annual or special meeting held for that purpose to accept as a public highway any street or highway situated in the municipality. Section 2 validated the action of any municipality theretofore taken in accepting any highway as a public highway. Where the legislature establishes the conditions necessary for a dedication of land for public purposes, the statutory provisions are controlling." (Internal quotation marks omitted.) Thompson v. Portland , supra, 159 Conn. at 113, 266 A.2d 893. This historical review concerns the law in effect at the time the city accepted the highways in Shorefront Park in 1930. "Dedication is an appropriation of land to some public use, made by the owner of the fee, and accepted for such use by and in behalf of the public. . Both the owner's intention to dedicate the way to public use and acceptance by the public must exist, but the intention to dedicate the way to public use may be implied from the acts and conduct of the owner, and public acceptance may be shown by proof of the actual use of the way by the public. . Thus, the two elements are essential to a valid dedication: (1) a manifested intent by the owner to dedicate the land involved for the use of the public; and (2) an acceptance by the proper authorities or by the general public. . No particular formality is required in order to dedicate a parcel of land to a public use; dedication may be express or implied. . Whether there has been a dedication and whether there has been an acceptance present questions of fact." (Citations omitted.) Meshberg v. Bridgeport City Trust Co. , 180 Conn. 274, 279, 429 A.2d 865 (1980). "The approval of a proposed subdivision and the acceptance of a public street are entirely separate and distinct proceedings." (Internal quotation marks omitted.) Id., at 280, 429 A.2d 865. In the present case, the trial court found, on the basis of the evidence presented, specifically, the minutes of the April, 1930 city council meeting and the subdivision map of August, 1924, that The Shorefront Park Company dedicated the highways within Shorefront Park to the city and that the city accepted the highways. On appeal, the plaintiffs do not contend that the council did not accept the dedication of highways on the subdivision map; they contend that the only highways the council accepted were those fifty feet wide. Specifically, they point to the second sentence of the minutes of the council meeting, which states: "All highways asked to be accepted are fifty (50) feet in width and in good condition and in all of them have been laid water and gas mains at the Company's expense." We disagree with the plaintiffs, as the construction of the language in the council minutes does not support such a conclusion. To resolve the plaintiffs' claim, we examine the April, 1930 council minutes. The Shorefront Park Company petitioned the mayor and city council "for the acceptance of the highways shown on [the] attached map of Shorefront Park." It is a simple declaratory sentence asking the city to accept the highways depicted on the subdivision map, without limitation or qualification as to the highways on the map. The following sentence is another simple declaratory sentence: "All highways asked to be accepted are fifty (50) feet in width and in good condition and in all of them have been laid water and gas mains at the Company's expense." Logically, "[a]ll highways" must refer to the prior sentence and the highways on the attached map. The remainder of the sentence describes the width of the highways, their condition, and states that water and gas mains have been laid at the company's expense. Although the language of the second sentence is descriptive, it is not conditional. In other words, the second sentence does not exclude any of the highways on the subdivision map, or any portion of them. Councilman Charpentier stated that Jutten had investigated the condition of the highways in Shorefront Park and found them to be in good condition and recommended their acceptance. A motion that "the highways in Shorefront Park as designated on map entitled 'Map of Part of Shorefront Park Property of The Shorefront Park Co. Norwalk Conn. Aug. 1924' be accepted seconded and carried." The clear intent of the motion was for the council to accept the highways in Shorefront Park as depicted on the subdivision map without qualification, clarification, or limitation. As our Supreme Court stated in Thompson v. Portland , supra, 159 Conn. at 111, 266 A.2d 893, "no street or highway laid out by any private person, company or corporation shall be opened to the public (1) until the grade, width and improvements of such street or highway shall have the written approval of the . common council of the city ." The city council in the present case accepted the report of Jutten that the highways The Shorefront Park Company was offering for dedication were in good condition. The minutes do not reflect any discussion or concern regarding the width of the highways as depicted on the subdivision map. As further evidence that the city accepted all of the highways depicted on the subdivision map, there is nothing otherwise in the record to suggest that The Shorefront Park Company objected to the public's use of the highways in Shorefront Park at any time until the company was dissolved in 1959. We, therefore, conclude that the court properly found that the highways depicted on the subdivision map are public roadways, including the contested area. As to the plaintiffs' claim that the contested area is private property, there is no evidence in the record that the plaintiffs hold title to the contested area. Richard McGannon, an attorney specializing in real property and title matters, testified that The Shorefront Park Company owned the land, including the roadbeds, for what became the subdivision. In McGannon's opinion, the roads were private in 1924 and throughout the chain of title there was no record of a conveyance of title to the roads. The Shorefront Park Company did not convey an ownership interest in the road to the centerline. McGannon's title search of the plaintiffs' property demonstrated that the deed did not convey the roadbed to a purchaser. For the foregoing reasons, the plaintiffs' claim that the court's determination that The Shorefront Park Company had dedicated all of the roads depicted on the subdivision map for the use of the city was clearly erroneous fails. II The plaintiffs' second claim is that the court improperly required them to rebut the city's acceptance of the highways in the subdivision by clear and convincing proof. Although we disagree with the plaintiffs' claim, the claim in and of itself is without consequence to their appeal, as the trial court found by a preponderance of the evidence that the highways depicted in the subdivision map, including the contested area, were dedicated by The Shorefront Park Company and accepted by the city. See part I of this opinion. Moreover, the court found that the highways in Shorefront Park, including the contested area, were shared by the public. See part III of this opinion. The plaintiffs' claim therefore fails. Despite our conclusion that the plaintiffs' claim does not affect the outcome of their appeal, we take the opportunity to explain that it fails as a matter of law. The plaintiffs take exception to the following language in the court's memorandum of decision and iterated in its response to the plaintiffs' motion for rectification. "The burden of proving a dedication and acceptance, by a preponderance of the evidence, generally falls upon the party who claims that the property in question belongs to the public. . But, because a party claiming title by adverse possession must prove his or her claim by clear and positive proof . it falls to the plaintiffs in this case to prove, by clear and positive proof, that the contested area was not dedicated to the city, or if it was, that the city abandoned it, since property owned by a municipality generally cannot be adversely possessed." (Citations omitted.) "Where title is claimed by adverse possession, the burden of proof is on the claimant. . The essential elements of adverse possession are that the owner shall be ousted from possession and kept out uninterruptedly for fifteen years under a claim of right by an open, visible and exclusive possession of the claimant without license or consent of the owner. . The use is not exclusive if the adverse user merely shares dominion over the property with other users. . Such a possession is not to be made out by inference, but by clear and positive proof. . In the final analysis, whether possession is adverse is a question of fact for the trier. . The doctrine of adverse possession is to be taken strictly." (Citations omitted; internal quotation marks omitted.) Roche v. Fairfield , 186 Conn. 490, 498-99, 442 A.2d 911 (1982). Our Supreme Court has held that "property that is held in fee simple ownership by municipalities must be presumed to be held for public use. It follows that the party seeking title by adverse possession must bear the burden of rebutting that presumption. Municipal immunity from adverse possession is the rule and not the exception, and we have consistently held that the party seeking to acquire title by adverse possession bears the burden of proving all the elements of adverse possession." American Trading Real Estate Properties, Inc. v. Trumbull , supra, 215 Conn. at 80, 574 A.2d 796. Moreover, the plaintiffs' claim overlooks the following findings and conclusions of the court. "Under either a preponderance or clear and convincing proof standard, the court finds that the evidence supports an understanding of The Shorefront Park Company's intentions and actions as an express dedication of all of the highways within Shorefront Park to the city of Norwalk, without any exclusion or retaining of interest in portions of the highways which were less than fifty feet wide. The court notes also that [the] identification of the contested area [in the subdivision map] as part of a 'Private Way' is of no consequence, since several other portions of highway on the map, many marked as fifty feet wide, are so labeled, and the plaintiffs do not contend that those sections of the road were exempt from The Shorefront Park Company's dedication to the city. "The plaintiffs have also failed to prove, by clear and convincing proof, that the city of Norwalk's acceptance was not express and did not include the contested area. Again, a motion to accept all of Shorefront Park's highways, as designated on the map, was passed without any reference to the width of the highways. Because the court has determined that all of the highways, including the contested area, were expressly offered, the court finds that the [city's] express acceptance could and did include them." (Footnote omitted.) As we explained in part I of this opinion, the court properly found by a preponderance of the evidence that the highways on the subdivision map were expressly dedicated by The Shorefront Park Company and were expressly accepted by the city. Our Supreme Court has held that municipalities are immune from claims of adverse possession. See American Trading Real Estate Properties, Inc. v. Trumbull , supra, 215 Conn. at 80, 574 A.2d 796. Moreover, on the basis of our review of the record, including the evidence, we conclude that the plaintiffs could not prevail on their claim of adverse possession because the evidence demonstrates that the contested area is shared by the public. See part III of this opinion. Even if the plaintiffs had the legal right to claim title to the contested area, they could not prevail because the court found that their use of the contested area was shared by the public. "[T]o establish title by adverse possession, the claimant must oust an owner of possession and keep such owner out without interruption for fifteen years by an open, visible and exclusive possession under a claim of right with the intent to use the property as his [or her] own and without the consent of the owner." (Internal quotation marks omitted.) Schlichting v. Cotter , 109 Conn.App. 361, 364-65, 952 A.2d 73, cert. denied, 289 Conn. 944, 959 A.2d 1009 (2008). "Because adverse possession is a question of fact for the trier . the court's findings as to this claim 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 trial court's findings in an adverse possession case, if supported by sufficient evidence, are binding on a reviewing court ." (Internal quotation marks omitted.) Mulle v. McCauley , 102 Conn.App. 803, 809, 927 A.2d 921, cert. denied, 284 Conn. 907, 931 A.2d 265 (2007). The plaintiffs' claim therefore fails. III The plaintiffs' third claim is that the trial court's finding that dominion over the contested area is shared by the public is clearly erroneous. We disagree. At trial, the plaintiffs argued that, even if the contested area was dedicated to the city in 1930, municipal immunity to adverse possession was lost when the city abandoned the area by failing to maintain it or otherwise treat it as a public road. In its memorandum of decision, the court noted that "[t]o establish title by adverse possession, the claimant must oust an owner of possession and keep such owner out without interruption for fifteen years by an open, visible and exclusive possession under a claim of right with the intent to use the property for his [or her] own and without the consent of the owner." (Internal quotation marks omitted.) Shepard Group, LLC v. Arnold , supra, 124 Conn.App. at 44, 3 A.3d 975. "The use is not exclusive if the adverse user merely shares dominion over the property with other users." Whitney v. Turmel , 180 Conn. 147, 148, 429 A.2d 826 (1980). "A finding of [a]dverse possession is not to be made out of inference, but by clear and positive proof. . The burden of proof is on the party claiming adverse possession." (Internal quotation marks omitted.) Shepard Group, LLC v. Arnold , supra, at 44, 3 A.3d 975. The court continued, "[t]itle to realty held in fee by a state or any of its subdivisions for a public use cannot be acquired by adverse possession." (Internal quotation marks omitted.) Campanelli v. Candlewood Hills Tax District , 126 Conn.App. 135, 140, 10 A.3d 1073 (2011). "In light of the myriad of public uses that may be advanced through public ownership of undeveloped lands . property that is held in fee simple ownership by municipalities must be presumed to be held for public use. It follows that the party seeking title by adverse possession must bear the burden of rebutting that presumption. Municipal immunity from adverse possession is the rule and not the exception, and we have consistently held that the party seeking to acquire title by adverse possession bears the burden of proving all the elements of adverse possession." American Trading Real Estate Properties, Inc. v. Trumbull , supra, 215 Conn. at 80, 574 A.2d 796. Furthermore, the two methods of terminating a town's responsibility for a road differ. "A highway may be extinguished by direct action through governmental agencies, in which case it is said to be discontinued; or by nonuser by the public for a long period of time with the intention to abandon, in which case it is said to be abandoned." (Internal quotation marks omitted.) Doolittle v. Preston , 5 Conn.App. 448, 451, 499 A.2d 1164 (1985) ; see also R. Fuller, 9B Connecticut Practice Series: Land Use Law and Practice (4th Ed. 2015) § 49:5, p. 112 ("Once it is shown that the road was a public highway at some point in the past, it remains one under Connecticut law no matter what its state of improvement or deterioration may be unless that status was terminated in one of two ways, (1) abandonment or (2) discontinuance as provided by General Statutes § 13a-49."). The statutory method of discontinuing the use of a highway must be pursued strictly. Doolittle v. Preston , supra, at 451, 499 A.2d 1164. At trial, the plaintiffs made no claim that the city had discontinued use of the contested area by a majority vote of the selectmen pursuant to § 13a-49. The court found that the plaintiffs had the burden of proving abandonment by clear and convincing evidence. Abandonment requires proof of both a long period of nonuse by the public and an intention to abandon. Montanaro v. Aspetuck Land Trust, Inc. , supra, 137 Conn.App. at 21, 48 A.3d 107. It is nonuse by the public, not the municipality, that must be proven. The parties presented conflicting evidence as to the first element of abandonment, i.e., a long period of nonuse by the public. In its memorandum of decision, the court summarized the testimony of several witnesses. Dominic Cocchia and Peter Cocchia, sons of Mary Ann Cocchia, testified that they moved into 40 Quintard Avenue in 1959. They understood that the contested area was part of their driveway where they played games and parked the family motor vehicles. Their father required them to clean up litter, weed, and shovel snow from the contested area. In 1970, their father had it paved. Neither Dominic Cocchia nor Peter Cocchia could recall any action the family took to exclude the public from the contested area or to prohibit the public from entering or exiting the subdivision through the stone pillars. Merritt testified that she had resided at 78 Shorefront Park since 1944 and over a twenty year period, she had walked four dogs over the contested area and through the pillars approximately 200 times a year. She also testified that she regularly saw pedestrians pass through the pillars, including women with baby carriages, children on bicycles, and other dog walkers. Merritt and other motorists drove their vehicles through the pillars to enter or exit the subdivision. She never witnessed any barrier or notice denying the public entry to the contested area. Mulvehill testified that he had been a resident of Shorefront Park since 1977. According to him, the city plows the subdivision every year and pushes snow into the contested area. He has never seen a chain, fence, sign, name on the pillars, or other circumstance that would suggest that the plaintiffs claimed possession of the contested area. Patricia Audet, a resident of 25 Shorefront Drive since 1977, testified that she frequently drove through the pillars to enter or exit the subdivision. Significantly, the court viewed the contested area and disclosed to the parties that, while he was parked on Quintard Avenue, he observed a woman walk south on Quintard Avenue, through the stone pillars, and proceed down Shorefront Drive. The court considered the conflicting evidence and, in its memorandum of decision, found that the testimony of the plaintiffs' witnesses was not more likely to be true than the testimony of the defendants' witnesses. The court, therefore, concluded that the public's use of the contested area and of the stone pillars as a public entrance to the subdivision fell somewhere between the levels suggested by the parties, but not so low as to satisfy the nonuser prong of abandonment. According to the court, the plaintiffs therefore failed to carry their burden of proving, by clear and convincing evidence, that public use of the contested area or stone pillar entrance was so infrequent between 1959 and 1974, or between 1974 and the present, to satisfy the first element of abandonment. Rather, the evidence indicated to the court that the use of the contested area was shared by the owners of 40 Quintard Avenue and the general public. The court explained: "It is not essential . that large numbers of the public participate in the user, or that the user be one which results in a large volume of travel. Each situation must be judged in relation to its own surroundings and conditions, and with a regard for the number of persons who would have occasion to use the way. . It is only necessary that those who would be naturally expected to enjoy it have done so at their pleasure." (Internal quotation marks omitted.) Granby v. Feins , 154 Conn.App. 395, 404, 105 A.3d 932 (2014). The essence of the plaintiffs' claim on appeal is that their witnesses, Dominic Cocchia and Peter Cocchia, lived at the property during the period in which adverse possession is claimed and the only witness for the defendants who could testify as to the use of the contested area during the adverse period was Merritt. The plaintiffs acknowledge that it is in the discretion of the trial court to accept her testimony over that of Dominic Cocchia and Peter Cocchia, but not if its findings were not reasonable and the reviewing court is left with the impression that the finding was a mistake. See Stratford v. Jacobelli , 317 Conn. 863, 870, 120 A.3d 500 (2015). The plaintiffs specifically argue that the court's finding is clearly erroneous because Merritt testified that she was of the opinion that the plaintiffs should not acquire the contested area by adverse possession. They claim, therefore, that such testimony makes her an interested witness, not one who is testifying on the basis of what she has seen. "[W]e must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. . We also must determine whether those facts correctly found are, as a matter of law, sufficient to support the judgment. . [W]e give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses ." (Internal quotation marks omitted.) Rana v. Terdjanian , 136 Conn.App. 99, 113, 46 A.3d 175, cert. denied, 305 Conn. 926, 47 A.3d 886 (2012). "[E]vidence is not insufficient . because it is conflicting or inconsistent. [The trier of fact] is free to juxtapose conflicting versions of events and determine which is more credible. . In this regard, [w]e are not in a position to question the court's credibility finding. The sifting and weighing of evidence is peculiarly the function of the trier. [N]othing in our law is more elementary than that the trier is the final judge of the credibility of witnesses and of the weight to be accorded their testimony. . The trier is free to accept or reject, in whole or in part, the testimony offered by either party." (Citation omitted; internal quotation marks omitted.) Masse v. Perez , 139 Conn.App. 794, 798, 58 A.3d 273 (2012), cert. denied, 308 Conn. 905, 61 A.3d 1098 (2013). A court properly may take into account testimony from a witness with an interest in the outcome of the case. See Beaucar v. Bristol Federal Savings & Loan Assn. , 6 Conn.Cir.Ct. 148, 154, 268 A.2d 679 (1969). "[A] trial court is at liberty to discredit any witness or a multitude of witnesses, if it deems that it has cause to do so." Antenucci v. Hartford Roman Catholic Diocesan Corp. , 142 Conn. 349, 357, 114 A.2d 216 (1955). "[I]t is futile to assign error involving the weight of testimony or the credibility of witnesses." Hartford-Connecticut Trust Co. v. Putnam Phalanx , 138 Conn. 695, 699, 88 A.2d 393 (1952) (witness former trustee of defendant). On the basis of our review of the record, the law, and the court's memorandum of decision, we conclude that the court's finding that the contested area was shared by the plaintiffs and the general public is not clearly erroneous. The judgment is affirmed. In this opinion the other judges concurred. The individual defendants were owners of property adjacent to Shorefront Park, a roadway in the city, and the descendants of the original owners of The Shorefront Park Company. The individual defendant property owners were Thursa June Merritt, Mary Merritt, Urban S. Mulvehill, Diane K. Mulvehill, James A. Smith, Joanne C. Smith, William Faulkenstein, and Kaori O'Brien. The individual defendant descendants were John Keogh III, M. Douglas Keogh, William Allen Keogh, Stephen B. Keogh, Tara Quinn-Siegel, and Jacqueline F. Quinn. The plaintiffs impleaded numerous other individuals who had a possible interest in property, but none appeared in the trial court. The following defendants appeared at trial: the city, Thursa June Merritt, Urban S. Mulvehill, and The Shorefront Park Improvement Association, Inc. Those defendants filed appearances in this appeal, but only Urban S. Mulvehill, a self-represented party, filed a brief and argued on appeal. The defendants, as used in this opinion, refers to only those defendants who appeared at trial. "Shorefront Park" is both a street address within the subdivision and the name of the subdivision itself. The court found that the plaintiffs alleged that Jutten was employed by the city's Department of Public Works. Another section of the minutes contains the words "A.F. Jutten Commissioner." The court found that the road widens to fifty feet where it meets the border of the plaintiffs' property. Under either a preponderance of the evidence or clear and convincing proof standard, the court found that the evidence supports an understanding of The Shorefront Park Company's intentions and actions as an express dedication of all of the highways within Shorefront Park to the city, without any exclusion or retaining of interest in portions of the highways that were fewer than fifty feet wide. Although the plaintiffs' exhibit 8 identifies the contested area as part of a "Private Way," the court found that to be of no consequence, as several other portions of the highway on the map, many marked as fifty feet wide, are similarly labeled. The plaintiffs did not contend that those sections of road were exempt from The Shorefront Park Company's dedication to the city. "Various minor changes were made in the statute, but no major change occurred until 1959, when the statute was amended to require the approval of the planning commission where one existed in such town, city or borough and where the commission had adopted subdivision regulations." Thompson v. Portland, supra, 159 Conn. at 112, 266 A.2d 893. If Shorefront Park Company had wished to limit or restrict the dedication, it might have included a restrictive phrase in the sentence, such as, "for the acceptance of the highways that are fifty feet wide shown on the attached map." General Statutes § 13a-49(a)(1) provides in relevant part: "The selectmen of any town may, subject to approval by a majority vote at any regular or special town meeting, by a writing signed by them, discontinue any highway or private way . in its entirety ." We also note the jury instructions given with respect to possible bias or motive of witnesses generally: "In weighing the testimony of a witness, you should consider his or her demeanor on the witness stand, whether his or her testimony was reasonable or unreasonable, the basis of the witness' knowledge or opportunity to observe the events that he or she testified about, whether his or her testimony was supported or contradicted by other testimony, his or her motive to tell the truth or not to tell the truth, the probability or improbability of his or her testimony. . "You also have a right to consider whether any witness has shown bias or prejudice or has a personal interest or professional interest in the outcome of the case which might cause him or her to testify to something other than the truth or to color or embellish his or her testimony. However, even if you find that the witness is an interested witness, has some stake in the matter, remember, there's no legal presumption that he or she did not tell the truth nor is there any legal presumption that a disinterested witness did, in fact, tell the truth. The question of the interest of a witness and the effect upon his or her testimony is for you to decide from the evidence in the case." (Internal quotation marks omitted.) State v. Patterson, 276 Conn. 452, 466 n.10, 886 A.2d 777 (2005) ; see also 2 D. Wright & W. Ankerman, Connecticut Jury Instructions (Civil) (4th Ed. 1993) § 641, pp. 1017-18.

12489044

Luis F. WILLIAMS v. COMMISSIONER OF CORRECTION

Williams v. Comm'r of Corr.

2016-12-20

AC 37909

656

668

153 A.3d 656

153

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.010181+00:00

Fastcase

Luis F. WILLIAMS v. COMMISSIONER OF CORRECTION

Luis F. WILLIAMS v. COMMISSIONER OF CORRECTION AC 37909 Appellate Court of Connecticut. Argued September 15, 2016 Officially released December 20, 2016 Stephanie L. Evans, assigned counsel, for the appellant (petitioner). James M. Ralls, assistant state's attorney, with whom, on the brief, were Brian Preleski, state's attorney, and Jo Anne Sulik, Rocky Hill, supervisory assistant state's attorney, for the appellee (respondent). Alvord, Mullins and Sullivan, Js.

5119

32123

SULLIVAN, J. Following the habeas court's judgment denying his petition for a writ of habeas corpus, the petitioner, Luis Williams, appeals from the habeas court's denial of his petition for certification to appeal. On appeal, the petitioner claims that the habeas court abused its discretion when it denied his petition for certification to appeal from the habeas court's denial of his petition for a writ of habeas corpus, wherein he alleged that (1) his counsel at trial provided ineffective assistance by failing to take curative measures to remedy prosecutorial impropriety that occurred during closing arguments, and (2) his counsel on direct appeal provided ineffective assistance by failing to raise a claim of prosecutorial impropriety. We conclude that the habeas court properly denied the petition for certification to appeal. We therefore dismiss the appeal. The following facts, as set forth by this court on direct appeal, and procedural history are relevant to this appeal. "On September 3, 2004, police officers from the New Britain and Waterbury police departments, aided by two United States marshals, executed an arrest warrant for the [petitioner] at an efficiency apartment at 636 Riverside Avenue in Waterbury. The officers entered the apartment and found the [petitioner] sitting on the couch in the living room, which was located directly in front of the door, and the [petitioner's] brother, Josue Williams, lying on the floor next to the couch. The [petitioner] was arrested and handcuffed. "Detective Mark Santopietro removed the cushions from the couch where the [petitioner] had been sitting and discovered a pistol. Santopietro immediately notified the other officers of the presence of a firearm. Shortly after Santopietro's discovery, Sergeant Harold Setzer noticed a box of what he believed to be ammunition. Concerned that there might be other individuals in the apartment, Setzer moved to do a protective sweep of the apartment. "Setzer walked six to eight feet from where the [petitioner] was located to a kitchen counter. At the counter, he saw Styrofoam cups filled with numerous bags of a substance he believed to be heroin. He next moved to the bedroom, where he opened a closet door and saw narcotics packaging and a narcotics sifter. Setzer did not seize any of the items he discovered but instead left them in place for the forensic staff. Setzer's entire sweep took less than one minute." (Footnotes omitted.) State v. Williams , 110 Conn.App. 329, 331-32, 954 A.2d 878 (2008). The petitioner subsequently was convicted following a jury trial of possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b), possession of a controlled substance with intent to sell within 1500 feet of a school in violation of General Statutes § 21a-278a (b), and criminal possession of a firearm in violation of General Statutes § 53a-217. The petitioner thereafter appealed, challenging the denial of his motion to suppress the drugs found on the kitchen counter. Id., at 332, 954 A.2d 878. This court affirmed his conviction. Id., at 334-35, 954 A.2d 878. On September 28, 2009, the petitioner filed a petition for writ of habeas corpus. In his second amended petition filed at the habeas trial on April 2, 2015, the petitioner claimed, inter alia, that the acts and omissions of counsel at trial denied him his right to effective assistance of counsel. Specifically, he alleged that counsel was ineffective for failing to challenge, inter alia, improper comments made by the prosecutor during closing arguments. Additionally, he claimed that counsel's failure to raise a claim of prosecutorial impropriety in his criminal appeal denied him his right to effective assistance of appellate counsel. On April 2, 2015, in an oral decision, the habeas court denied the petitioner's habeas petition. On April 7, 2015, the court denied his petition for certification to appeal. This appeal followed. Additional facts will be set forth as necessary. "We begin by setting forth the applicable standard of review. Faced with a habeas court's denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden , 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden , 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion.... Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on its merits." (Internal quotation marks omitted.) Lewis v. Commissioner of Correction , 166 Conn.App. 22, 30, 140 A.3d 414, cert. denied, 323 Conn. 905 (2016). "To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.... If this burden is not satisfied, then the claim that the judgment of the habeas court should be reversed does not qualify for consideration by this court." (Internal quotation marks omitted.) Miller v. Commissioner of Correction , 153 Conn.App. 747, 751, 104 A.3d 767 (2014), cert. denied, 315 Conn. 912, 106 A.3d 304 (2015). "In determining whether the habeas court abused its discretion in denying the petitioner's request for certification, we necessarily must consider the merits of the petitioner's underlying claims to determine whether the habeas court reasonably determined that the petitioner's appeal was frivolous." (Internal quotation marks omitted.) Taft v. Commissioner of Correction , 159 Conn.App. 537, 544, 124 A.3d 1, cert. denied, 320 Conn. 910, 128 A.3d 954 (2015). Finally, "[t]he conclusions reached by the trial court in its decision to dismiss [a] habeas petition are matters of law, subject to plenary review.... [When] the legal conclusions of the court are challenged, [the reviewing court] must determine whether they are legally and logically correct . and whether they find support in the facts that appear in the record.... To the extent that factual findings are challenged, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous . [A] finding of fact is clearly erroneous when there is no evidence in the record to support it . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." (Internal quotation marks omitted.) Brewer v. Commissioner of Correction , 162 Conn.App. 8, 13, 130 A.3d 882 (2015). I The petitioner first claims that the habeas court improperly denied his petition for certification to appeal because there was merit to his claim that counsel provided ineffective assistance at trial by failing to take curative actions when the prosecutor vouched for the credibility of the state's witness, Setzer, in summation and improperly stated that no evidence existed against the petitioner's brother, Josue Williams (Josue), related to the drugs and firearm found in the apartment. "In order to establish an ineffective assistance of counsel claim a petitioner must meet the two-pronged test enunciated in Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Specifically, the claim must be supported by evidence establishing that (1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance.... Because both prongs of Strickland must be demonstrated for the petitioner to prevail, failure to prove either prong is fatal to an ineffective assistance claim.... In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted violation of the petitioner's constitutional right to effective assistance of counsel is plenary." (Citation omitted; emphasis in original; internal quotation marks omitted.) Atkins v. Commissioner of Correction, 158 Conn.App. 669, 675, 120 A.3d 513, cert. denied, 319 Conn. 932, 125 A.3d 206 (2015). The petitioner argues that statements made by the prosecutor in summation constituted prosecutorial impropriety. Specifically, the petitioner cites comments in which the prosecutor contrasted the credibility of Setzer and Josue. He takes issue with the prosecutor's description of Setzer as "a man with twelve years narcotics experience, who doesn't know this [petitioner], doesn't know his brother, has never seen them before, has no interest in this case and was such a trusted person he was a guard on Air Force One for President Reagan." The petitioner argues that through this statement the prosecutor impermissibly vouched for the credibility of Setzer by asserting that he was a trustworthy person because he was a guard on Air Force One for President Reagan. Although the claim of prosecutorial impropriety regarding the statements about Josue was not explicit in the petitioner's appellate brief, he clarified at oral argument before this court the nature of his claim. The petitioner argues the following statements made about Josue during rebuttal were improper: "Then you have a two time convicted felon out to protect his brother . who knows full well there was no evidence against him but now he can say other things. Now he can say [the drugs are] his because he knows he won't be prosecuted and he shouldn't be prosecuted. There is no true evidence, I submit to you, against Josue." The petitioner claims that these statements offered information to the jury not in evidence that there was "no evidence" or "no true evidence" against Josue. Additionally, he claims that the prosecutor improperly sought to influence the jury by contrasting Josue's motives and testimony with Setzer's impressive credentials rather than contrasting his motives and testimony to the officers as a group. Before addressing the petitioner's claim, we set forth the standard of review and law governing claims of prosecutorial impropriety. "[I]n analyzing claims of prosecutorial [impropriety], we engage in a two step analytical process. The two steps are separate and distinct: (1) whether [impropriety] occurred in the first instance; and (2) whether that [impropriety] deprived a defendant of his due process right to a fair trial. Put differently, [impropriety] is [impropriety], regardless of its ultimate effect on the fairness of the trial; whether that [impropriety] caused or contributed to a due process violation is a separate and distinct question that may only be resolved in the context of the entire trial ." (Internal quotation marks omitted.) State v. Sinvil , 270 Conn. 516, 522-23, 853 A.2d 105 (2004). "[P]rosecutorial [impropriety] of a constitutional magnitude can occur in the course of closing arguments.... When making closing arguments to the jury, [however] [c]ounsel must be allowed . generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument.... Thus, as the state's advocate, a prosecutor may argue the state's case forcefully, [provided the argument is] fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom.... Moreover, [i]t does not follow . that every use of rhetorical language or device [by the prosecutor] is improper.... The occasional use of rhetorical devices is simply fair argument.... "Nevertheless, the prosecutor has a heightened duty to avoid argument that strays from the evidence or diverts the jury's attention from the facts of the case. [The prosecutor] is not only an officer of the court, like every attorney, but is also a high public officer, representing the people of the [s]tate, who seek impartial justice for the guilty as much as for the innocent.... By reason of his office, he usually exercises great influence upon jurors. His conduct and language in the trial of cases in which human life or liberty [is] at stake should be forceful, but fair, because he represents the public interest, which demands no victim and asks no conviction through the aid of passion, prejudice, or resentment. If the accused [is] guilty, he should [nonetheless] be convicted only after a fair trial, conducted strictly according to the sound and well-established rules [that] the laws prescribe. While the privilege of counsel in addressing the jury should not be too closely narrowed or unduly hampered, it must never be used as a license to state, or to comment upon, or to suggest an inference from, facts not in evidence, or to present matters which the jury ha [s] no right to consider.... "Finally . the defendant's failure to object at trial to each of the occurrences [raised on appeal] . as instances of prosecutorial impropriety, though relevant to our inquiry, is not fatal to review of his claims.... This does not mean, however, that the absence of an objection at trial does not play a significant role in the determination of whether the challenged statements were, in fact, improper.... To the contrary, we continue to adhere to the well established maxim that defense counsel's failure to object to the prosecutor's argument when it was made suggests that defense counsel did not believe that it was [improper] in light of the record of the case at the time." (Citation omitted; internal quotation marks omitted.) State v. Medrano , 308 Conn. 604, 611-12, 65 A.3d 503 (2013). A In the present case, the petitioner claims that the prosecutor improperly vouched for the credibility of Setzer by stating that he was a "trusted person" because he was a guard on Air Force One for President Ronald Reagan. "A prosecutor, in fulfilling his duties, must confine himself to the evidence in the record.... Statements as to facts which have not been proven amount to unsworn testimony that is not the subject of proper closing argument." (Internal quotation marks omitted.) State v. Medrano , 131 Conn.App. 528, 541, 27 A.3d 52 (2011), aff'd, 308 Conn. 604, 65 A.3d 503 (2013). Additionally, "the prosecutor may not express his own opinion, directly or indirectly, as to the credibility of the witnesses.... Nor should a prosecutor express his opinion, directly or indirectly, as to the guilt of the defendant.... Such expressions of personal opinion are a form of unsworn and unchecked testimony, and are particularly difficult for the jury to ignore because of the prosecutor's special position.... Moreover, because the jury is aware that the prosecutor has prepared and presented the case and consequently, may have access to matters not in evidence . it is likely to infer that such matters precipitated the personal opinions.... A prosecutor also may not appeal to the emotions, passions and prejudices of the jurors . or otherwise inject extraneous issues into the case that divert the jury from its duty to decide the case on the evidence." (Internal quotation marks omitted.) State v. Santiago , 269 Conn. 726, 735, 850 A.2d 199 (2004). Nevertheless, "[i]t is not improper for the prosecutor to comment upon the evidence presented at trial and to argue the inferences that the jurors might draw therefrom . We must give the jury the credit of being able to differentiate between argument on the evidence and attempts to persuade [it] to draw inferences in the state's favor, on one hand, and improper unsworn testimony, with the suggestion of secret knowledge, on the other hand. The state's attorney should not be put in the rhetorical straitjacket of always using the passive voice, or continually emphasizing that he [or she] is simply saying I submit to you that this is what the evidence shows, or the like." (Internal quotation marks omitted.) State v. Ciullo , 314 Conn. 28, 41, 100 A.3d 779 (2014). In the present case, the prosecutor was not presenting facts not in evidence or his personal opinion; rather, he was asking the jurors to draw a reasonable inference from facts in the record. In describing his credentials, Setzer testified that he was in the Air Force Security Police, and was assigned to the Elite Guard Unit at Travis Air Force Base and to Air Force One, where he was employed to secure Air Force One and the president. Although Setzer did not testify, nor did anyone else, to the qualifications required for an assignment to guard Air Force One and the president, it is a reasonable inference that such a position requires a degree of trustworthiness. The prosecutor's statements summarized the evidence and asked the jury to make a reasonable inference therefrom. Moreover, although the prosecutor did not formulate the statement that Setzer was a "trusted person" as a submission, when he raised the inference that Setzer was trustworthy as a guard to the president a second time, he restricted his language stating, "I submit ." Accordingly, the prosecutor did not express his own opinion or provide facts not in evidence, and, thus, the statements regarding the trustworthiness of Setzer were not improper. Consequently, the habeas court correctly concluded that counsel was not ineffective at trial for failing to challenge these statements. B The petitioner also argues that the prosecutor improperly introduced facts not in evidence. Essentially, he contends that when the prosecutor stated that there was "no evidence" or "no true evidence" against Josue, he effectively conveyed that the court had dismissed the charges against Josue because there was no evidence against him although the only evidence presented was that the charges against Josue had been dismissed. The following additional facts are relevant to the resolution of this issue. In a written statement to police read into evidence by the clerk, the petitioner stated that his address was 691 Osgood Avenue, New Britain. He stated that on September 3, 2004, "I went out on the back porch of where I had been staying at [636] Riverside Avenue, Apartment 2B, in Waterbury. The next thing I knew was that the cops were yelling at me. I went back into [my] apartment and the cops smashed in the front door of the apartment." The petitioner also stated, "I have been staying in this apartment with a girl named Maria Gonzales. I have been staying with Maria for about three weeks ever since I met her at the Club Blu in Hartford. I knew that I had warrants in New Britain and I wanted to stay out of New Britain." Josue's testimony at trial conflicted with the petitioner's written statement. Josue testified, inter alia, that he, Josue, was married but had been having a romantic or sexual relationship with Gonzales since meeting her at Club Blu several weeks before the date in question and that the drugs were his and Gonzales'. He also testified that the petitioner had been living with him at 691 Osgood Avenue in New Britain, not at the Waterbury apartment, that the petitioner did not know about the drugs, was not in a relationship with Gonzales, and that the petitioner only came to the apartment with him. Additionally, he testified that, contrary to Setzer's testimony, law enforcement officers did not find the drugs on the kitchen counter but in a bedroom. Josue also testified that law enforcement asked him to "pin" the drugs on the petitioner so that Josue could avoid prosecution. The state challenged Josue's credibility during cross-examination. Josue admitted that he had two prior felony convictions and that he loved his brother, that he did not want to see anything happen to him, and that he wanted to protect him. Additionally, Josue testified that the charges against him in a related case concerning the drugs found in the apartment had been dismissed and that his attorney had told him that the charges would not come back against him. He later equivocated and testified that his attorney was uncertain about whether the charges could come back. The prosecutor stated the following, inter alia, about Josue during rebuttal summation: "Furthermore, [Josue] knows nothing can happen to him because, as he said, the charges were dismissed and he admitted, he didn't want to do it, but he reluctantly admitted [his attorney] told him nothing could happen to him. And I submit to you the charges against Josue were dismissed because there was no evidence [that] pointed to Josue. He didn't live there for three weeks. This [petitioner] lived there. "But contrast the credibility of Josue, a man who is a two-time convicted felon, has no reason to believe he'll be charged in this case because none of the evidence points to him, loves and protects-wants to protect his brother and acknowledges he doesn't want anything to happen to him. "Then you have the two-time convicted felon out to protect his brother, who [would rather] not see anything happen to his brother, who knows full well there was no evidence against him but now he can say other things. Now he can say it's his because he knows he won't be prosecuted and he shouldn't be prosecuted. There's no true evidence, I submit to you, against Josue." "A prosecutor, in fulfilling his duties, must confine himself to the evidence in the record.... Statements as to facts which have not been proven amount to unsworn testimony that is not the subject of proper closing argument." (Citations omitted.) State v. Williams , 204 Conn. 523, 544, 529 A.2d 653 (1987). Again, "[i]t is not improper for the prosecutor to comment upon the evidence presented at trial and to argue the inferences that the jurors might draw therefrom." (Internal quotation marks omitted.) State v. Ciullo , supra, 314 Conn. at 41, 100 A.3d 779. Where a prosecutor's arguments "[skirt] the boundaries of permissible argument . [w]e are mindful . that closing arguments of counsel are seldom carefully constructed in toto before the event; improvisation frequently results in syntax left imperfect and meaning less than crystal clear. While these general observations in no way justify prosecutorial [impropriety], they do suggest that a court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations." (Internal quotation marks omitted.) State v. Haase , 243 Conn. 324, 335-36, 702 A.2d 1187 (1997), cert. denied, 523 U.S. 1111, 118 S.Ct. 1685, 140 L.Ed.2d 822 (1998). "To draw from the realm of statutory interpretation, language is deemed ambiguous when read in context, [it] is susceptible to more than one reasonable interpretation.... To be clear, in furtherance of our policy of not assigning ambiguous remarks their most damaging interpretation from an array of less damaging interpretations, in those cases where a prosecutor's allegedly improper statements are genuinely ambiguous, the ambiguity will be construed in favor of the state. Put another way, for the purpose of determining whether a challenged remark is improper, when selecting among multiple, plausible interpretations of the language, this court will assign the remark the less damaging, plausible meaning." (Citation omitted; footnote omitted; internal quotation marks omitted.) State v. Felix R. , 319 Conn. 1, 13, 124 A.3d 871 (2015). In the present case, the respondent, the Commissioner of Correction, argues that the prosecutor was not testifying to facts not in evidence with respect to Josue's exposure to criminal liability but, instead, was summarizing the evidence and asking the jury to draw reasonable inferences therefrom. We agree. The petitioner's argument requires one to restrictively isolate the following statements made by the prosecutor: "And I submit to you the charges against Josue were dismissed because there was no evidence [that] pointed to Josue.... Then you have the two-time convicted felon . who knows full well there was no evidence against him . There's no true evidence, I submit to you, against Josue." Once isolated, the argument would proceed that either the prosecutor was providing unsworn testimony that there was no evidence against Josue or that, because the charges were dismissed, there was no evidence against him. The former would be improper unsworn testimony; the latter would improperly ask the jury to speculate because there are multiple reasons that criminal charges can be dismissed. See Practice Book § 41-8. This overly constrains the prosecutor's statements and removes them from the larger context of his rebuttal summation. There was ample, and conflicting, evidence in the record concerning Josue leading up to and after law enforcement's entry into the apartment on September 9, 2004, to weigh his potential exposure to criminal liability. Reading the prosecutor's statements about Josue in the full context of the state's rebuttal, the prosecutor summarized the available evidence and asked the jury to draw reasonable inferences from that evidence. Specifically, the prosecutor asked the jury to conclude, based on the evidence presented that conflicted with Josue's testimony, that there was no evidence against Josue and that is why the charges against him were dismissed. Accordingly, the prosecutor's statements regarding Josue were not improper and, consequently, counsel did not render ineffective assistance of counsel at trial by not challenging such statements. Because the challenged statements of the prosecutor were not improper, there was no prosecutorial impropriety. Curative actions by counsel at trial were not required, and his actions at trial were not deficient. II The petitioner next claims that the habeas court improperly denied his petition for certification to appeal because there was merit to his claim that counsel provided ineffective assistance on direct appeal by failing to raise a claim of prosecutorial impropriety. We disagree. Our standard of review for this claim is similar to the standard set forth in part I of this opinion, with the exception of the second prong of Strickland . "In regard to the second prong, our Supreme Court distinguished the standards of review for claims of ineffective trial counsel and ineffective appellate counsel. Small v. Commissioner of Correction , 286 Conn. 707, 721-24, 946 A.2d 1203, cert. denied sub nom. Small v. Lantz , 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008). For claims of ineffective appellate counsel, the second prong considers whether there is a reasonable probability that, but for appellate counsel's failure to raise the issue on appeal, the petitioner would have prevailed in his direct appeal, i.e., reversal of his conviction or granting of a new trial. Id., at 722, 946 A.2d 1203. This requires the reviewing court to [analyze] the merits of the underlying claimed error in accordance with the appropriate appellate standard for measuring harm." (Internal quotation marks omitted.) Moore v. Commissioner of Correction , 119 Conn.App. 530, 535, 988 A.2d 881, cert. denied, 296 Conn. 902, 991 A.2d 1103 (2010). For all of the reasons previously discussed, there is no reasonable probability that, but for appellate counsel's failure to raise a claim of prosecutorial impropriety, the petitioner would have prevailed in his direct appeal to obtain a reversal of his conviction or the granting of a new trial. See id. The prosecutor's statements during closing arguments regarding Setzer and Josue were not improper. Consequently, counsel was not ineffective for not raising such claims on direct appeal. On the basis of the foregoing analysis in parts I and II of this opinion, we conclude that the petitioner's claims are not debatable among jurists of reason, that a court could not resolve the issues in a different manner, and that the questions do not deserve encouragement to proceed further. Accordingly, we conclude that the court did not abuse its discretion by denying the petition for certification to appeal. The appeal is dismissed. In this opinion the other judges concurred. The same attorney represented the petitioner in his criminal trial and direct appeal. We therefore refer to this attorney simply as counsel. The petitioner also claimed that his constitutional rights to due process and a fair trial were violated by the prosecutor's (1) failure to disclose favorable material evidence; (2) knowing presentation of-and failure to correct-false testimony; and (3) improper comments during closing arguments. The petitioner withdrew the second claim at trial and he does not raise a claim on appeal related to the remaining issues. We ordinarily do not address arguments raised for the first time during oral argument. See, e.g., Grimm v. Grimm, 276 Conn. 377, 393, 886 A.2d 391 (2005), cert. denied, 547 U.S. 1148, 126 S.Ct. 2296, 164 L.Ed.2d 815 (2006). Nevertheless, by interpreting the argument section of the petitioner's brief in conjunction with his oral argument, we have discerned what we believe is his claim on appeal. Further, there is no prejudice to the respondent, the Commissioner of Correction, as he fully briefed the issues pertaining to the statements regarding Josue. See Calvert v. University of Connecticut Health Center, 142 Conn.App. 738, 742 n.5, 68 A.3d 107 (2013). The prosecutor stated as follows: "So you got Setzer, twelve year narcotics officer. Doesn't know this defendant, doesn't know his brother. Only goes to that scene, not involved in this overall investigation, no bias, no interest, no ax to grind, former guard for the President. I submit to you, ladies and gentlemen, untrustworthy people are not given that position." A discussion that followed indicates that the clerk misread the statement reading "the apartment" rather than "my apartment." Practice Book § 41-8 provides: "The following defenses or objections, if capable of determination without a trial of the general issue, shall, if made prior to trial, be raised by a motion to dismiss the information: "(1) Defects in the institution of the prosecution including any grand jury proceedings; "(2) Defects in the information including failure to charge an offense; "(3) Statute of limitations; "(4) Absence of jurisdiction of the court over the defendant or the subject matter; "(5) Insufficiency of evidence or cause to justify the bringing or continuing of such information or the placing of the defendant on trial; "(6) Previous prosecution barring the present prosecution; "(7) Claim that the defendant has been denied a speedy trial; "(8) Claim that the law defining the offense charged is unconstitutional or otherwise invalid; or "(9) Any other grounds." To the extent the petitioner argues that the comparison of Setzer's credentials and Josue's testimony and credibility was improper, this argument is without merit. The petitioner put their testimony in conflict as a theory of his case and in closing arguments by contesting the location of the drugs. Setzer testified that the drugs were in the kitchen, but Josue testified that they were in the bedroom. Consequently, the credibility of the two men was at issue.

12489677

John RIGHI v. Allison RIGHI

Righi v. Righi

2017-04-25

AC 38492

1094

1103

160 A.3d 1094

160

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.016011+00:00

Fastcase

John RIGHI v. Allison RIGHI

John RIGHI v. Allison RIGHI AC 38492 Appellate Court of Connecticut. Argued January 12, 2017 Officially released April 25, 2017 Joseph E. Prokop, for the appellant (plaintiff). Susan T. Pearlman, for the appellee (defendant). DiPentima, C. J., and Mullins and Bishop, Js.

4335

27766

BISHOP, J. This family law appeal requires us to analyze the statutory requirements necessary for a party to succeed on a postjudgment motion to modify, pursuant to General Statutes § 46b-86(a). The plaintiff, John Righi, appeals from the judgment of the trial court granting the postjudgment motion of the defendant, Allison Righi, to modify a marital dissolution judgment child support order. On appeal, the plaintiff claims that the court (1) improperly granted the motion to modify after determining there had not been a substantial change in circumstances; and (2) erred by finding that the dissolution court, in creating the original child support order, failed to make a finding that applying the child support guidelines would be inequitable or inappropriate, pursuant to General Statutes § 46b-215b(a) and 46b-86(a). We affirm the judgment of the trial court. The following factual and procedural background is relevant to our consideration of the plaintiff's appeal. The plaintiff and the defendant were married on May 28, 2004, and had two children, one born in December, 2003, and one born in March, 2005. After an uncontested hearing, the marriage of the parties was dissolved on December 8, 2014. The court, Johnson, J. , incorporated the parties' separation agreement into the judgment of dissolution, which provided, inter alia, that the parties would share joint legal custody of the two minor children. Pursuant to the parties' agreement, the court ordered that the plaintiff's house would be the children's principal place of residence, though "the parties shall equally share parenting time ." The agreement and order also provided that "[n]either party shall pay child support to the other party" and that "[t]his is a deviation from the child support guidelines based on the parties' shared parenting arrangement of shared physical custody and the best interests of the children." At the dissolution hearing, both the plaintiff and the defendant testified that they believed this was a fair and equitable agreement and that it was in the best interests of their children. As for the presumptive child support amount pursuant to the child support guidelines, the court found that the defendant would have had to pay $111 per week to the plaintiff if the children primarily lived with the plaintiff, and the plaintiff would have had to pay $256 per week to the defendant if the children primarily lived with the defendant. When asked by the court why she was asking the court to deviate from the child support guidelines, the defendant testified that the defendant and the plaintiff "just decided fifty/fifty. . I'll take the costs [of the children] when they're with me, and [the plaintiff will] take the costs when they're with him." She also testified that each parent, while the children were in his or her custody, would be "responsible for the costs of feeding, educating, and entertaining the children." The court accepted the parties' agreement and stated: "In review of the agreement and the child support guidelines, the court feels the agreement is fair and equitable under all of the circumstances and in the best interests of the two minor children and will adopt the agreement as a final order of the court." On August 7, 2015, the defendant filed a postjudgment motion to modify the child support order, claiming that since the dissolution judgment, there had been a substantial change in circumstances, and that she was "in need of financial help" and was no longer able to pay for one half of the children's expenses in addition to her bills. The court, Albis, J. , heard argument on this motion on September 1, 2015, during which the defendant testified that her circumstances had changed because she was anticipating that her rent would increase the following month; her hours at work did not increase, as she had anticipated they would; and the children's expenses had increased. The plaintiff opposed the defendant's motion to modify and testified that "nothing has really changed. . [The defendant is] just not managing her money very wisely." The court issued a memorandum of decision on September 3, 2015, granting the defendant's motion. In its written decision the court stated: "The court finds that there has been no substantial change in circumstances since the entry of judgment on December 8, 2014.... However, the terms of the judgment providing for no child support payments to either party represent a substantial deviation from the child support guidelines. A review of the record of the proceedings on December 8, 2014, reveals no specific findings of the court that would preclude consideration of the defendant's request for modification of child support pursuant to § 46b-86(a)...." The court continued: "The presumptive weekly child support obligation of the plaintiff . as the parent with the higher net weekly income, is found to be $266 pursuant to the child support guidelines. . But the court finds that it would be inequitable or inappropriate to apply the presumptive guideline support amount in view of the parties' shared physical custody arrangement ." The court ordered the plaintiff to pay weekly child support in the amount of $100 to the defendant. Thereafter, the plaintiff filed a motion to reargue, claiming that the court should not have granted the defendant's motion to modify the child support order because it found there had not been a substantial change in circumstances. In denying the plaintiff's motion, the court stated: "[E]ven absent a substantial change in circumstances, § 46b-86(a)... provides a second basis for modifying child support: that the prior order substantially deviated from the child support guidelines without a 'specific finding on the record that the application of the guidelines would be inequitable or inappropriate.' In the present case, the court found that the prior order substantially deviated from the child support guidelines and that no such specific finding was made on the record. Therefore, the modification of the child support order was permitted by § 46b-86(a) notwithstanding the prior agreement of the parties and the absence of a substantial change in circumstances." This appeal followed. We begin by setting forth the relevant standard of review and legal principles. The plaintiff's claims, that the court did not have the authority to modify the child support order, require us to analyze the court's interpretation and application of § 46b-86(a) to the facts of the case, and to determine whether the court acted in accordance with its authority. Accordingly, because our review requires an analysis of a legislative provision, and contrary to the plaintiff's assertions, we employ a plenary standard of review. Coury v. Coury , 161 Conn.App. 271, 293, 128 A.3d 517 (2015) ("[O]ur deferential standard of review [in domestic relations cases] . does not extend to the court's interpretation of and application of the law to the facts. It is axiomatic that a matter of law is entitled to plenary review on appeal." [Internal quotation marks omitted.] ). Section 46b-86(a) provides in relevant part: "Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent . support . may, at any time thereafter, be . modified by the court upon a showing of a substantial change in circumstances of either party or upon a showing that the final order for child support substantially deviates from the child support guidelines established pursuant to [General Statutes §] 46b-215a, unless there was a specific finding on the record that the application of the guidelines would be inequitable or inappropriate. ." We turn now to the plaintiff's claims. I The plaintiff argues first that the court should have denied the defendant's motion to modify because the defendant did not meet the statutory requirements for postjudgment modification pursuant to § 46b-86(a). Specifically, the plaintiff argues that the court was required to find that there had been a substantial change in circumstances before it could modify the child support order, and, because it specifically found that there had not been a substantial change in circumstances, it improperly granted the defendant's motion to modify. This claim is wide of the mark. Our case law is clear that § 46b-86(a) creates two alternative circumstances in which a court can modify a child support order. "[Section] 46b-86 governs the modification of a child support order after the date of a dissolution judgment . [and] permits the court to modify child support orders in two alternative circumstances ." (Citation omitted; emphasis added; internal quotation marks omitted.) Weinstein v. Weinstein , 104 Conn.App. 482, 491, 934 A.2d 306 (2007), cert. denied, 285 Conn. 911, 943 A.2d 472 (2008). Those circumstances are when there is "(1) a showing of a substantial change in the circumstances of either party or (2) a showing that the final order for child support substantially deviates from the child support guidelines absent the requisite findings." Santoro v. Santoro , 70 Conn.App. 212, 218, 797 A.2d 592 (2002). Accordingly, this court specifically has held that "[a] court has the power to modify a child support order on the basis of a substantial deviation from the guidelines independent of whether there has been a substantial change in the circumstances of the party." (Internal quotation marks omitted.) Weinstein v. Weinstein , supra, 104 Conn.App. at 495, 934 A.2d 306 ; see also McHugh v. McHugh , 27 Conn.App. 724, 728-29, 609 A.2d 250 (1992) ( "[O]nce the court enters an order of child support that substantially deviates from the guidelines, and makes a specific finding that the application of the amount contained in the guidelines would be inequitable or inappropriate . that particular order is no longer modifiable solely on the ground that it substantially deviates from the guidelines. By the same token, in the absence of such a specific finding, the order is continually subject to modification on the ground of a substantial deviation from the guidelines." [Footnote omitted.] ). The court granted the defendant's motion to modify on the basis of the second modification criteria, that there was a substantial deviation from the child support guidelines without the requisite specific finding that application of the guidelines would be inequitable or inappropriate. Under these circumstances, it was not necessary for the court to find first that there had been a change in circumstances before granting the defendant's motion to modify. Accordingly, the court's interpretation of its statutory authority to modify the child support order under § 46b-86(a), even absent a finding of substantial change in circumstances, was not in error. II The plaintiff next argues that the court's decision to grant the defendant's motion to modify on the stated basis that the court failed to make a specific finding that following the child support guidelines would be inequitable or inappropriate was erroneous because the dissolution court's finding that the agreement was fair and equitable was tantamount to a determination that application of the guidelines would be inequitable or inappropriate. In his brief, the plaintiff argues: "It is clear that the court, in finding the deviation from the child support guidelines fair and reasonable, must have concluded that given the shared parenting plan, the guideline amounts would have been unfair and inequitable. Indeed, requiring an additional finding that the guideline amounts were unfair and inequitable after finding the deviation fair and reasonable would be redundant and an undue burden on the court." We are not persuaded. In the exercise of our plenary standard of review, we first set forth the relevant legal principles applicable to our resolution of this claim. "The legislature has enacted several statutes to assist courts in fashioning child support orders. . The legislature also has provided for a commission to oversee the establishment of child support guidelines, which must be updated every four years, to ensure the appropriateness of child support awards . General Statutes § 46b-215a." (Internal quotation marks omitted.) Maturo v. Maturo , 296 Conn. 80, 89-90, 995 A.2d 1 (2010). In support of the application of these guidelines, § 46b-215b(a) provides: "The . guidelines issued pursuant to [§] 46b-215a . shall be considered in all determinations of child support amounts . In all such determinations, there shall be a rebuttable presumption that the amount of such awards which resulted from the application of such guidelines is the amount to be ordered. A specific finding on the record that the application of the guidelines would be inequitable or inappropriate in a particular case . shall be required in order to rebut the presumption in such case." (Emphasis added.) This exception to the application of the presumptive guideline amount is reiterated in § 46b-86(a), which governs the modifiability of support orders. Section 46b-86(a) provides in relevant part: "Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent . support . may, at any time thereafter, be . modified by the court . upon a showing that the final order for child support substantially deviates from the child support guidelines established pursuant to [§] 46b-215a, unless there was a specific finding on the record that the application of the guidelines would be inequitable or inappropriate ." (Emphasis added.) Section 46b-215a-5c(a) of the Regulations of Connecticut State Agencies provides in relevant part: "The current support . contribution amounts calculated under [the child support guidelines] . are presumed to be the correct amounts to be ordered. The presumption regarding each such amount may be rebutted by a specific finding on the record that such amount would be inequitable or inappropriate in a particular case. . Any such finding shall state the amount that would have been required under such sections and include a factual finding to justify the variance. Only the deviation criteria stated in . subdivisions (1) to (6), inclusive, of subsection (b) of this section . shall establish sufficient bases for such findings." Our courts have interpreted this statutory and regulatory language as requiring three distinct findings in order for a court to properly deviate from the child support guidelines in fashioning a child support order: (1) a finding of the presumptive child support amount pursuant to the guidelines; (2) a specific finding that application of such guidelines would be inequitable and inappropriate; and (3) an explanation as to which deviation criteria the court is relying on to justify the deviation. See Unkelbach v. McNary , 244 Conn. 350, 370, 710 A.2d 717 (1998) ("the trial court did not calculate the presumptively correct support order pursuant to the guidelines, did not make a specific finding on the record that application of the general rule would be inequitable or inappropriate under these circumstances, and did not include a justification for the variance"); Syragakis v. Syragakis , 79 Conn.App. 170, 176-77, 829 A.2d 885 (2003) ("[s]ection 46b-215a-3 [now § 46b-215a-5c ] of the Regulations of Connecticut State Agencies contains the deviation criteria . [and] provides that in addition to making a specific finding that following the guideline[s] would be inequitable or inappropriate, the court must state the amount that would have been required under the guidelines and the deviation criteria relied on by the court to justify [the] deviation"); Barcelo v. Barcelo , 158 Conn.App. 201, 215, 118 A.3d 657 ("The court in the present case failed to cite the presumptive support amount . and then did not invoke the defendant's earning capacity as a deviation criterion in calculating his child support obligation. It also did not explain why an obligation calculated in accordance with . the child support guidelines, would be inequitable or inappropriate ."), cert. denied, 319 Conn. 910, 123 A.3d 882 (2015) ; Wallbeoff v. Wallbeoff , 113 Conn.App. 107, 113, 965 A.2d 571 (2009) ("the court in the present case also deviated from the guidelines, did not calculate the presumptively correct support order pursuant to the guidelines, did not make a specific finding on the record that application of the general rule would be inequitable or inappropriate under these circumstances and did not include a justification for the variance"). In the case at hand, the plaintiff argues that a court can satisfy the "specific finding" requirement by finding an agreement that deviates from the guidelines to be fair and equitable and that such a finding satisfies the requirement that the court make a specific finding that application of the guidelines would be inequitable or inappropriate. In short, the plaintiff asserts that the required specific finding can be implied from the court's other findings. The question we ultimately face, therefore, is whether the court correctly interpreted § 46b-86(a) to require a court, pursuant to the "specific finding" language, to explicitly state that the application of the child support guidelines would be inequitable or inappropriate before deviating from the guidelines. "We approach this question according to well established principles of statutory construction designed to further our fundamental objective of ascertaining and giving effect to the apparent intent of the legislature. . In seeking to discern that intent, we look to the words of the statute itself, 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." (Citation omitted; internal quotation marks omitted.) Fahy v. Fahy , 227 Conn. 505, 512, 630 A.2d 1328 (1993). The plain language of the statute suggests that a court must state explicitly on the record its specific finding that applying the guidelines would be inequitable or inappropriate. "The American Heritage College Dictionary (4th Ed. 2002) defines specific in relevant part as: 1. Explicitly set forth; definite." (Internal quotation marks omitted.) Miller's Pond Co., LLC v. New London , 273 Conn. 786, 826, 873 A.2d 965 (2005). Furthermore, the legislative histories of § 46b-86 and 46b-215b are silent regarding the legislative intent behind the use of the phrase in § 46b-86(a) requiring a "specific finding on the record that the application of the guidelines would be inequitable or inappropriate." We can find no justification in that history, therefore, for not applying the phrase's plainly stated requirement. See Fahy v. Fahy , supra, 227 Conn. at 513, 630 A.2d 1328. In light of the statute's plain language and in the absence of any countervailing legislative history, we conclude that the enactment's "specific finding" requirement must be stated explicitly by the court and cannot be inferred merely from the court's determination that deviation from the guidelines is fair and equitable. Though we had not, until now, specifically determined that the language of § 46b-215b and 46b-86 required an explicit finding that application of the guidelines would be "inequitable or inappropriate" before deviating from the guidelines, we find instructive past decisions in which this court has looked for such talismanic language signifying an explicit finding in determining whether a court properly deviated from the child support guidelines. See Syragakis v. Syragakis , supra, 79 Conn.App. at 177, 829 A.2d 885 (affirming court's determination that the dissolution court, in fashioning a child support order, properly deviated from the guidelines because it "made all the necessary findings . to rebut the presumption that the amount of support provided for under the child support guidelines was correct" when it stated on the record the presumptive amount under the guidelines, specified which deviation criteria it was using, and stated that the guidelines amount "would be inequitable or inappropriate in this particular case"); Castro v. Castro , 31 Conn.App. 761, 766-67, 627 A.2d 452 (1993) (affirming court's determination that the dissolution court, in fashioning a child support order, properly deviated from the guidelines because it "made a specific finding that the application of the guidelines would be inequitable in this case" when it specifically stated "it would be inequitable to follow the guidelines under these circumstances" and based that determination "on two of the deviation criteria set forth in the guidelines"); Fish v. Igoe , 83 Conn.App. 398, 409-10, 849 A.2d 910 (affirming court's denial of a motion to modify because the magistrate properly deviated from the guidelines when it found the presumptive amount of child support, stated that it would deviate from the guidelines "because to do otherwise would be inequitable and inappropriate," and based its decision on deviation criteria), cert. denied, 271 Conn. 921, 859 A.2d 577 (2004) ; Pagliaro v. Jones , 75 Conn.App. 625, 641, 817 A.2d 756 (2003) (affirming court's support order that deviated from the child support guidelines because "[t]he court properly made deviations . in response to findings that the contributions by [the plaintiff] caused an extraordinary reduction in the plaintiff's living expenses and that, under those circumstances, it would be inequitable and inappropriate not to order a downward deviation"). Further support for requiring such talismanic language comes from previous decisions in which this court has recognized that such a specific finding is a "rigorous requirement"; Fox v. Fox , 152 Conn.App. 611, 639, 99 A.3d 1206, cert. denied, 314 Conn. 945, 103 A.3d 977 (2014) ; and "has very real and meaningful consequences ." (Emphasis added.) McHugh v. McHugh , supra, 27 Conn.App. at 729, 609 A.2d 250. Accordingly, in order to deviate properly from the child support guidelines in fashioning a child support order, the court must fulfill each of the statutory requirements for deviation from the guidelines and that obligation includes a specific finding on the record that application of the guidelines would be inequitable or inappropriate given the circumstances of the case. Absent such a finding, the order is modifiable pursuant to § 46b-86(a) because the "final order for child support substantially deviates from the child support guidelines ." Santoro v. Santoro , supra, 70 Conn.App. at 218, 797 A.2d 592. In sum, in the present case, the court's child support order substantially deviated from the child support guidelines, and the record is devoid of any specific finding on the record by the court that following the guidelines would be inequitable or inappropriate. Although we agree with the plaintiff that the court did make a specific finding on the record that the agreement created by the parties, which substantially deviated from the child support guidelines, was "fair and equitable," that is insufficient to satisfy the clear mandates of § 46b-86(a) requiring that the court make a "specific finding" that application of the guidelines would be inequitable or inappropriate in this situation. Because the court failed to make the required specific finding, the child support order was modifiable, despite the fact that the court had found there had not been a substantial change in circumstances. Accordingly, the court correctly interpreted the requirements of § 46b-86(a) to the facts of the case and acted within its statutory authority to modify the child support order. The judgment is affirmed. In this opinion the other judges concurred. The plaintiff argues in his brief that the court's findings of fact are at issue, and, therefore, are subject to the clearly erroneous standard of review. The plaintiff also argues that the court's granting of the defendant's motion should be reviewed under an abuse of discretion standard. We disagree with the plaintiff's assertion regarding our standard of review because in both claims, the plaintiff questions the court's authority to grant a modification and not the amount ordered. Since the court's authority stems from legislation and our task is to assess the meaning of the legislation, our review is plenary. Coury v. Coury, 161 Conn.App. 271, 293, 128 A.3d 517 (2015). General Statutes § 46b-86(a) further states: "There shall be a rebuttable presumption that any deviation of less than fifteen per cent from the child support guidelines is not substantial and any deviation of fifteen per cent or more from the guidelines is substantial." Neither the plaintiff nor the defendant argues that the court's deviation from the child support guidelines in making its original child support order was not substantial. In fact, at oral argument, the plaintiff admitted that there was "no question" that the deviation was substantial. The criteria enumerated in § 46b-215a-5c(b) of the regulations are: "(1) Other financial resources available to a parent . (2) [e]xtraordinary expenses for care and maintenance of the child . (3) [e]xtraordinary parental expenses . (4) [n]eeds of a parent's other dependents . (5) [c]oordination of total family support . [and] (6) [s]pecial circumstances ." Shared physical custody is considered a "special circumstance" that justifies deviation when "(i) such arrangement substantially: (I) reduces expenses for the child, for the parent with the lower net weekly income, or (II) increases expenses for the child, for the parent with the higher net weekly income; and (ii) sufficient funds remain for the parent receiving support to meet the needs of the child after deviation; or (iii) both parents have substantially equal income." Id., § 46b-215a-5c(b)(6)(A). The "[b]est interests of the child" is also considered a special circumstance that justifies deviation. Id., § 46b-215a-5c(b)(6)(D). We recognize that in other circumstances, we have found that the use of talismanic words is not required where a court's memorandum of decision contains all of the necessary findings to support the court's conclusion. See Pullman, Comley, Bradley & Reeves v. Tuck-it-Away, Bridgeport, Inc., 28 Conn.App. 460, 464, 611 A.2d 435 (court's memorandum of decision contained "all of the necessary subordinate findings to support the conclusion that [the defendant] had anticipatorily breached the contract as claimed at trial by [another defendant], even though it did not, in fact, use the talismanic words 'anticipatory breach' "), cert. denied, 223 Conn. 926, 614 A.2d 825 (1992) ; Nielsen v. Wisniewski, 32 Conn.App. 133, 139, 628 A.2d 25 (1993) (a finding of "wrongful conduct" was sufficient to affirm an award of punitive damages pursuant to General Statutes § 42-110g ). Here, however, requiring that the court, before deviating from the child support guidelines, explicitly state that the application of the guidelines would be inequitable or inappropriate is supported by the plain language of the statute requiring a "specific finding," as well as our previous case law recognizing the importance of such a finding. See McHugh v. McHugh, supra, 27 Conn.App. at 728-29, 609 A.2d 250 ; Fox v. Fox, supra, 152 Conn.App. at 639, 99 A.3d 1206.

12486163

Lisha LEWIS et al. v. Anthony BOWDEN.

Lewis v. Bowden

2016-06-21

No. 37741.

998

1000

141 A.3d 998

141

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:13.996264+00:00

Fastcase

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

Lisha LEWIS et al. v. Anthony BOWDEN.

Lisha LEWIS et al. v. Anthony BOWDEN. No. 37741. Appellate Court of Connecticut. Argued April 14, 2016. Decided June 21, 2016. Anthony Bowden, self-represented, the appellant (defendant). Gail M. Lawrence, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Sean Kehoe, assistant attorney general, for the appellee (plaintiff). DiPENTIMA, C.J., and KELLER and BISHOP, Js.

804

4926

PER CURIAM. The self-represented defendant, Anthony Bowden, appeals from the judgment of the Superior Court denying his motion to open a judgment of paternity rendered against him in 1982. We affirm the court's judgment. The following facts are not in dispute. On March 24, 1979, the plaintiff Lisha Lewis, now deceased, gave birth to a child. On February 18, 1982, the plaintiff filed a paternity petition naming the defendant as the child's father. On March 1, 1982, the court, Falsey, J., rendered a default judgment of paternity against the defendant, adjudicating the defendant to be the child's father. For over twenty years, no action was taken in this case. However, on October 26, 2009, the defendant filed a motion to open the default judgment of paternity, which was denied by a family support magistrate. Following this denial, the defendant filed three more motions to open the judgment of paternity, which were all denied for various procedural reasons. Finally, on July 3, 2014, the defendant filed his fifth motion to open the judgment of paternity, which the court, Emons, J., denied on January 23, 2015, following a hearing. This appeal followed. "In an appeal from a denial of a motion to open a judgment, our review is limited to the issue of whether the trial court has acted unreasonably and in clear abuse of its discretion.... In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action.... The manner in which [this] discretion is exercised will not be disturbed so long as the court could reasonably conclude as it did." (Internal quotation marks omitted.) Weinstein v. Weinstein, 275 Conn. 671, 685, 882 A.2d 53 (2005). A motion to open a default judgment is governed by General Statutes § 52-212, which provides in relevant part: "Any judgment rendered or decree passed upon a default or nonsuit in the Superior Court may be set aside, within four months following the date on which it was rendered or passed, and the case reinstated on the docket, on such terms in respect to costs as the court deems reasonable, upon the complaint or written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of the judgment or the passage of the decree, and that the plaintiff or defendant was prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense...." "Because of the important consideration of finality of judgments, however, a judgment should not be opened without a strong and compelling reason . [such as] when there appears cause for which the court acting reasonably would feel bound in duty so to do." (Citations omitted; internal quotation marks omitted.) Martin v. Martin, 99 Conn.App. 145, 156, 913 A.2d 451 (2007). We further note that "[w]hile . [i]t is the established policy of the Connecticut courts to be solicitous of [self-represented] litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the [self-represented] party . we are also aware that [a]lthough we allow [self-represented] litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law." (Citation omitted; internal quotation marks omitted.) Keating v. Ferrandino, 125 Conn.App. 601, 604, 10 A.3d 59 (2010). Our review of the record leads us to conclude that the court's denial of the defendant's motion to open was not an abuse of discretion. The defendant made no showing of "reasonable cause, or that a . defense . existed at the time of the . judgment . and that [he] was prevented by mistake, accident or other reasonable cause from . making the defense." General Statutes § 52-212(a). In fact, the defendant offered no explanation for why nearly thirty years passed before he tried to open the judgment. Under these circumstances and making every reasonable presumption in favor of the court's action, we do not conclude that the court abused its discretion in denying the defendant's motion to open. The judgment is affirmed. The state of Connecticut is also a plaintiff in this case and has the authority to defend the appeal on behalf of Lewis pursuant to General Statutes § 46b-160 (a)(1)(A) and (B). For convenience, we refer in this opinion to Lewis as the plaintiff.

12486159

STATE of Connecticut v. Tyrone TARVER.

State v. Tarver

2016-06-21

No. 38306.

940

956

141 A.3d 940

141

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:13.996264+00:00

Fastcase

STATE of Connecticut v. Tyrone TARVER.

STATE of Connecticut v. Tyrone TARVER. No. 38306. Appellate Court of Connecticut. Argued Feb. 29, 2016. Decided June 21, 2016. Glenn W. Falk, assigned counsel, for the appellant (defendant). Kathryn W. Bare, assistant state's attorney, with whom, on the brief, were David I. Cohen, former state's attorney, and Joseph Valdes, senior assistant state's attorney, for the appellee (state). KELLER, MULLINS and PELLEGRINO, Js.

8249

49828

MULLINS, J. The defendant, Tyrone Tarver, appeals from the judgment of conviction, rendered after a jury trial, of felony murder in violation of General Statutes § 53a-54c, robbery in the first degree in violation of General Statutes § 53a-134 (a)(2), and conspiracy to commit robbery in the third degree in violation of General Statutes § 53a-48 and 53a-136 (a). On appeal, the defendant raises two separate claims. First, he claims that "the unauthorized ex parte excusal of a juror by an unidentified person without notice and a hearing violated [General Statutes] § 54-82h (c) and various state and federal constitutional rights, including the right to be present during jury selection to ensure an impartial jury of one's peers, and the right to a public trial." (Footnote added.) In his second claim, he alleges that "the trial court abused its discretion in refusing to rule on the motion in limine and in denying a mistrial after [a] witness testified, just as defense counsel had anticipated, that the defendant went to jail for robbery." We disagree with both claims, and, accordingly, affirm the judgment of the trial court. The jury reasonably could have found the following facts. In late October, 2009, the defendant asked the victim, Denny Alcantara, to give him some marijuana without payment up front. The victim refused the defendant's request. As a result of the victim refusing his request for marijuana on credit, the defendant told his friend Shari Johnson that he planned to set up a marijuana transaction with the victim so that he could rob the victim. Shortly thereafter, the defendant set in motion his plan to rob the victim. Specifically, on November 4, 2009, the defendant arranged for the victim to meet him and two of his friends, Darryl Bonds and Joshua McNeil, at 62 Stillwater Avenue in Stamford, the home of Anthony Lacrete. The victim arrived at the designated location, retrieved six bags of marijuana that he had stored at Lacrete's apartment, and waited for the defendant on the front porch. Meanwhile, Ivania Collazo, Bonds' cousin, gave the defendant, Bonds, and McNeil a ride to a parking lot on Stillwater Avenue. While the victim waited on the porch for the defendant, Richard Patterson, a mutual acquaintance of the defendant and the victim, walked by. Patterson stopped and spoke briefly with the victim. After they conversed, Patterson continued walking down the block, and he encountered the defendant and his friends. Patterson told them that the victim was awaiting them. Patterson then telephoned the victim to tell him that the defendant was on his way to meet him. On arriving at the meeting point, the defendant and at least one of his friends took from the victim the marijuana, some cash, his cell phone, and the leather jacket and gold chain he was wearing. In the process, the victim was shot twice in the abdomen. The victim died shortly thereafter. Cell phone call details and cell tower location data placed the defendant at the scene during the foregoing events. The defendant, Bonds, and McNeil returned to Collazo's car, which she drove away from the area. In the car, as they discussed the events that had just unfolded, Bonds said that the victim had marijuana and a cell phone, and the defendant said that the victim had a black leather jacket, a gold chain, and some money. The defendant was wearing the victim's leather jacket. At a nearby store, McNeil left the car and Elvis Battista, Collazo's brother, got in. The defendant told Battista that he had robbed the victim, specifying that he had taken the leather jacket, the gold chain, the marijuana, and some cash. En route to Collazo's apartment in Bridgeport, Bonds received a call on the victim's cell phone, which he answered before throwing the phone out of the window. The defendant and Bonds spent the night at Collazo's apartment, smoking the victim's marijuana. After a trial, on January 18, 2013, the jury returned a verdict of guilty on all of the charges. Thereafter, the court sentenced the defendant to a total effective term of fifty years imprisonment and ten years special parole. This appeal followed. Additional facts will be provided as necessary. I The defendant claims that "the unauthorized ex parte excusal of a juror by an unidentified person without notice and a hearing violated . § 54-82h (c) and various state and federal constitutional rights, including the right to be present during jury selection to ensure an impartial jury of one's peers, and the right to a public trial." Specifically, he contends that a "reversal [of his conviction] is required since an unidentified person, not the court, excused the juror, and the court did not make a reliable, independent determination that the juror could not perform her duty, as required by statute; the defendant was deprived of his right to be present, his right to individual voir dire, his right to be heard by himself and by counsel, his right to due process of law, and his right to a public trial; and the harm from the statutory and constitutional violations must be presumed." We disagree. The following procedural history pertains to this claim. Jury selection in the defendant's trial occurred over five days between November 28, 2012, and December 11, 2012. The parties selected a total of twelve regular and four alternate jurors. In the course of selecting jurors, on December 4, 2012, venireperson E.A. was selected as the seventh regular juror, and venireperson L.C. was selected as the twelfth regular juror. By the conclusion of jury selection, the defendant had not exhausted all of his allotted peremptory challenges: he had exercised thirteen of his allotment of sixteen peremptory challenges and had three remaining. Trial was set to begin on the morning of January 7, 2013, at approximately 10 a.m. As of 10:41 a.m. on that date, however, three regular jurors, including L.C., and one alternate juror had not yet reported to the courthouse. The court noted, in addition, that L.C. had reported previously that he knew someone in the case. The court stated that it therefore was going to bring him in for voir dire when he arrived. The court then asked the clerk to telephone the missing jurors. Then, at approximately 11:29 a.m., the court stated: "The clerk has informed me that [E.A.] was released downstairs in the jury assembly room. She claimed that she has the flu and could not remain. And she is not in the building. I don't know who told her she could leave. Nobody informed the court. So, the parties didn't get a chance to voir dire her.... [E.A.] was released, and [L.C.] is the one who claims he knows somebody." Defense counsel immediately stated: "Your honor . I'm requesting that the court have the clerk call [E.A.] back. We went through careful voir dire of [E.A.].... She indicated that she was fully aware of this process [and] wanted to serve. She's an African-American lady and, while my client, under the guise of a jury of his peers, that doesn't mean people that are African-American like he is or his same age, but I think the panel benefits from a cross [section] of people. [E.A.] was an African-American lady, sixty-five years old, and seemed to be very well open to serving. And typically, as in the case of State v. Apodaca [303 Conn. 378, 33 A.3d 224 (2012) ] . if a jury member has an issue, it was incumbent upon us to bring that person into the courtroom, as I'm sure Your Honor probably adopts that theory, voir dire the person . and make a determination. "I don't know who in the building just let this person go. It doesn't sound like it's above board. And, just to make sure we're beyond reproach and nothing is questionable, I think the court-I'm asking the court to have the clerk call that person back so we can at least have that person brought into the courtroom. Because as we stand here, no one, not even Your Honor, knows who let her go and why.... There was some representation that she might have had a cold. That's all we have so far. So, now we have a panel member that's just let go, and we ask that she be brought back." Following defense counsel's argument, the court asked the prosecutor if he had anything to say, and he responded: "No, Your Honor." Then, the court brought in L.C. for voir dire, and, following questioning, the prosecutor indicated that he would like the juror released from duty, while defense counsel stated that he would like the juror to remain seated. The court ultimately determined that L.C. should be released, and that it would pick an alternate juror to replace him. The court then took up the matter of E.A., stating the following: "And let me just deal with the issue of [E.A.] while we're at it. Again, I didn't give permission for that juror to be released. I'm not sure who did give permission. I take it, it was our jury clerk, and I'm told that the juror represented that she had the flu and was unable to serve. And I'm not going to delay the trial. We have jurors waiting. We have witnesses. We're ready to proceed. So, we're going to use the statutory procedure for choosing two of the alternates who will be seated as regular jurors. I'm going to give them my preliminary instructions, and we're going to proceed with the trial." L.C. was brought back into the courtroom and released from service. Two alternate jurors were then chosen by the clerk by lot to be sworn in as regular members of the jury. The court asked defense counsel if he had anything else, to which he responded: "Nothing, nothing." The court then swore in the jury panel, after which trial commenced at approximately 11:45 a.m. A We first address the defendant's argument that the court violated § 54-82h (c). "Our standard of review for a trial court's decision to excuse a juror is well established. Section 54-82h (c) permits trial courts to excuse a juror [i]f, at any time, any juror shall, for any reason, become unable to further perform [his or her] duty.... The power to excuse a juror under this section is expressly premised on a finding of cause.... Whether in the circumstances just cause exists to excuse a juror is a matter within the discretion of the . court.... State v. Apodaca, [supra, 303 Conn. at 386, 33 A.3d 224 ]; see also State v. Cubano, 203 Conn. 81, 88-89, 523 A.2d 495 (1987) ( [t]he trial court is vested with wide discretion in determining the competency of jurors to serve, and that judgment will not be disturbed absent a showing of an abuse of discretion)." (Internal quotation marks omitted.) State v. Gonzalez, 315 Conn. 564, 576, 109 A.3d 453, cert. denied, - U.S. -, 136 S.Ct. 84, 193 L.Ed.2d 73 (2015). "We have recognized that unavailability due to illness may constitute cause to excuse a juror." Id., at 583, 109 A.3d 453. In this case, the defendant's appeal suffers from a misapprehension of the procedural history that must be remedied before we properly can address his claims. That misapprehension centers on precisely when E.A. was excused from her jury service for purposes of § 54-82h (c). The defendant argues that E.A. was improperly excused from her jury service when the "unauthorized" person permitted her to leave the courthouse. In light of the record, it is our view that, for purposes of § 54-82h (c), E.A. was not excused from her jury service at that point, but rather she was excused from jury service after the court heard from counsel and decided to replace her with an alternate. We acknowledge that it was not the trial judge who initially permitted E.A. to leave the courthouse. It was, however, the trial judge who ultimately made the decision to excuse her from her jury service. Indeed, after learning from the jury clerk that E.A. had been told she could leave the court, the trial judge sought input from the parties regarding how it should proceed. The defendant argued for the court to bring E.A. back. The court certainly could have opted to do so. Given her reported illness and the time that already had been lost that morning, however, the court opted instead to excuse her and then selected an alternate as required by § 54-82h (c). Therefore, although the court specifically noted, with respect to E.A. initially being permitted to leave the courthouse, that "I didn't give permission for that juror to be released," the court did not simply select an alternate without giving the parties an opportunity to be heard. After giving the parties that opportunity, the court appears to have credited the report from the clerk that E.A. had told someone that she was too ill to remain. The court then effectively excused E.A. when it announced its intent "to use the statutory procedure for choosing two of the alternates who will be seated as regular jurors." Accordingly, E.A. was excused from her service as a juror when the court did so after receiving input from the parties. With the point of E.A.'s excusal clarified, we now turn to the defendant's statutory claim. Although the defendant's statutory claim is not entirely clear and seems to be inextricably intertwined with his constitutional claims, he appears to be claiming that the court violated § 54-82h (c) in the following ways. First, he argues, the court did not make a reliable, independent determination that E.A. could not perform her duty because an unidentified person, not the court, excused E.A. Second, he appears to argue that the statute requires the court to give the defendant notice and hold a hearing to be able to make an informed decision regarding a juror's ability to serve before it may excuse the juror. In essence, he appears to be claiming that the court failed to exercise its discretion altogether because the unidentified person, rather than the court, actually excused E.A. Third, he argues that the statute was violated because he was not permitted an opportunity to ask questions of E.A. or assess the credibility of the person who excused her. We reject each of these contentions. As to the defendant's first argument in support of his statutory claim, that the court did not determine independently that there was cause to excuse E.A., it fails because, as we already have explained, it was in fact the court, not an unidentified person, who excused E.A. from jury service. The court accepted the representation that E.A. was ill. As we have noted, illness is good cause to excuse a juror. State v. Gonzalez, supra, 315 Conn. at 583, 109 A.3d 453. Next, as to the defendant's contention that E.A. was excused without notice and a hearing, this too fails. The record clearly demonstrates that after learning from a member of the courthouse staff that E.A. reportedly was suffering from the flu, the court held a discussion on the record before deciding to replace her. Thus, after announcing what it had learned from the clerk, the court gave the parties an opportunity to be heard on the matter. Defense counsel took that opportunity to place on the record numerous objections to excusing E.A. After hearing these objections, the court decided to excuse E.A. and replace her with an alternate. The court further explained that the trial already had been delayed that morning, that witnesses were waiting, and that it did not want to delay the start of trial any further. Therefore, given the information that E.A. was ill and having received input from both parties, the court properly exercised its discretion in deciding not to delay the trial and to replace E.A. with an alternate. Finally, to the extent that the defendant argues that he was entitled personally or through counsel to assess the credibility of E.A.'s excuse, neither § 54-82h (c) nor the cases that have construed it require an opportunity for the parties to question a juror before the court may excuse her. See, e.g., id., at 582-84, 109 A.3d 453 (court's excusal and replacement of juror who reported to court clerk by telephone that she would be unavailable that day because of medical condition was not abuse of discretion). Therefore, on the basis of the plain language of the statute and Gonzalez, the defendant's reliance on State v. Apodaca, supra, 303 Conn. at 384, 33 A.3d 224, for the proposition that the court must hold a hearing during which the parties can question a juror, is misplaced. In Apodaca, on the fifth day of evidence, at approximately 10:30 a.m., the trial court informed the parties that a juror had reported to the caseflow coordinator by telephone that she was suffering from the flu. Id., at 383, 33 A.3d 224. After hearing the parties' positions on whether it should dismiss the juror, the court deferred decision on the matter. Id., at 384, 33 A.3d 224. In the meantime, at the court's request, the caseflow coordinator telephoned the juror, who reported that she was not sure when she would feel well enough to return to jury duty. Id. Approximately one hour later, the court "reason[ed] that [the juror] presently was ill, that the court was not optimistic that she would be well enough by 2 p.m. to resume her duties and that, even if she did return, [the juror] might spread her illness to other jurors due to the close proximity that they shared. The court further reasoned that a delay could result in the loss of other jurors because the trial already had exceeded the estimated time frame that had been given to the jury and protracted testimony still lay ahead. Accordingly, the court ruled that it was excusing [the juror] for the aforementioned reasons and that an alternate juror would be selected by lot." Id., at 384-85, 33 A.3d 224. Our Supreme Court held that the trial court's decision was "well founded, and therefore cannot be deemed an abuse of discretion"; id., at 387, 33 A.3d 224 ; because "[t]he trial court articulated the basis of its . decision to excuse [the juror]: she was ill; unable to confirm when she would be well enough to return, and still potentially infectious; and a delay risked the loss of other jurors due to the trial having already exceeded its projected completion date." Id., at 386, 33 A.3d 224. Unlike the defendant in this case, we do not read Apodaca to require the trial court to conduct a credibility assessment of a juror's report of illness as a prerequisite to finding cause to excuse the juror. Neither the trial court nor the parties in Apodaca personally questioned the juror regarding her symptoms. After soliciting additional information through the caseflow coordinator, the trial court based its decision to excuse the juror on the potential delay that would arise from the uncertain time of her return as well as the possibility that, when she did return, she might be contagious. Although the court in this case did not follow up with E.A. to obtain more specific information regarding her reported illness, it, like the trial court in Apodaca, based its decision to excuse E.A. on proper considerations of efficiency and the other jurors' and witness' time. Neither the clear language of § 54-82h (c) nor Apodaca required more. For the foregoing reasons, we do not conclude that the court abused its discretion by crediting the report of E.A.'s illness, deciding that it was not going to delay any further the start of the trial in order to bring her back to the courthouse, and determining accordingly that there was cause to excuse her. Even if we were to conclude that the court abused its discretion when it excused E.A. and replaced her with an alternate juror, the defendant has not shown that he was harmed as a result. The defendant argues that harm should be presumed. He also contends that, even though harm should be presumed, he still has demonstrated harm in this case because the unauthorized excusal of E.A. decreased the racial diversity of the jury panel. We disagree. This court has stated that a "violation [of § 52-84h (c) ] does not necessarily implicate the defendant's constitutional rights and a reversal of conviction is not automatic." State v. Walton, 41 Conn.App. 831, 843, 678 A.2d 986 (1996) ; see also State v. LaBrec, 270 Conn. 548, 558, 854 A.2d 1 (2004) ("the mechanisms for providing for and dismissing alternate jurors, and the circumstances under which they may be substituted for regular jurors, do not implicate . constitutional rights" [internal quotation marks omitted] ); State v. Williams, 231 Conn. 235, 244, 645 A.2d 999 (1994) ("a violation of § 54-82h [c] does not implicate the defendant's constitutional rights"), overruled in part on other grounds by State v. Murray, 254 Conn. 472, 487 and n. 9, 757 A.2d 578 (2000). "Rather, the defendant bears the burden of proving that he was harmed by the substitution of the regular juror with an alternate." State v. Walton, supra, 41 Conn.App. at 843, 678 A.2d 986. The defendant must show "how the dismissal of the juror created unfairness to the defendant." State v. Mills, 57 Conn.App. 356, 365, 748 A.2d 891 (2000) ; see also State v. Bowens, 62 Conn.App. 148, 157, 773 A.2d 977 ("even if the court had abused its discretion, the defendant cannot show that the dismissal of [the juror] resulted in any harm to him"), cert. denied, 256 Conn. 907, 772 A.2d 600 (2001). In other words, the defendant must show that "the rulings of the trial court resulted in a jury that could not judge his guilt impartially." (Internal quotation marks omitted.) State v. Mills, supra, at 364, 748 A.2d 891. Although our case law is clear that the defendant must prove that the substitution of a juror resulted in harm, the defendant nevertheless argues that "[p]rejudice must be presumed under the circumstances of this case...." On the basis of numerous nonbinding cases, he posits that because the excusal of E.A. took place by a "secret proceeding" that excluded him from a critical stage of the prosecution and produced no record for review, this court must presume prejudice. We disagree. As we previously have discussed, the factual premise of a secret proceeding on which the defendant's argument rests is incorrect. In particular, although an unnamed individual dismissed E.A. from the jury assembly room, E.A. was not excused from jury service until the court subsequently determined that it would follow the applicable statutory procedure for choosing an alternate to replace her. The court did not make this determination in secret; it decided to replace E.A. on the record, after notifying counsel that E.A. reportedly was ill and providing counsel with the opportunity to present argument. The court then followed the proper procedure for choosing an alternate by lot. As a result, the nonbinding cases on which the defendant relies are factually distinguishable. E.g., Scott v. State, 219 Ga.App. 798, 799-800, 466 S.E.2d 678 (1996) (reversal required where trial court, relying on jury foreperson's representation that juror had become ill during deliberations, replaced ill juror without consulting counsel for either party); Bruckshaw v. Frankford Hospital of Philadelphia, 619 Pa. 135, 154-55, 58 A.3d 102 (2012) ("[t]he removal of a presumptively competent juror, by a court officer, without notice to the court, without notice to the parties, and the substitution with the last alternate juror [instead of the first, as required by statute] is so inimical to the integrity of our jury system that the presumption of prejudice arising therefrom is conclusive"). In addition to declining the defendant's invitation to presume harm under the circumstances of this case, we conclude that the defendant has not demonstrated that he was harmed by the replacement of E.A. with an alternate juror. The defendant, who is African-American, argues that he was harmed by the loss of racial diversity of the jury when E.A., an African-American woman, was excused. This court previously has considered and rejected a similar argument. In State v. Diaz, 94 Conn.App. 582, 588-89, 893 A.2d 495, cert. denied, 280 Conn. 901, 907 A.2d 91 (2006), this court concluded that the defendant failed to demonstrate that he was harmed by a juror's excusal when he argued only that the dismissed juror was the lone Hispanic juror and the defendant was Hispanic. See also State v. Lane, 101 Conn.App. 540, 549-50, 922 A.2d 1107 (where African-American juror failed to appear for trial at required time, court's substitution of alternate was permissible, nondiscriminatory basis for juror's removal and did not violate defendant's right to equal protection or fair trial), cert. denied, 283 Conn. 910, 928 A.2d 538 (2007). Here, as in Diaz, the defendant does not allege that the remaining jurors were unable to judge his guilt impartially. State v. Diaz, supra, 94 Conn.App. at 589, 893 A.2d 495. Indeed, "[a]lternate jurors, by statute, must have the same qualifications and be selected in the same manner as regular jurors." State v. Williams, 108 Conn.App. 556, 566, 948 A.2d 1085 (2008). Additionally, by not having exhausted his allotment of peremptory challenges, the defendant implicitly conveyed his acceptance of the alternate jurors available to replace E.A. "Unless all his peremptory challenges have been exercised before the completion of jury selection, it is presumed that no juror was permitted to serve whom the defendant regarded as biased or unsuitable, although he might have preferred others." State v. Vitale, 190 Conn. 219, 225, 460 A.2d 961 (1983). Thus, in essence, the court here simply substituted for one acceptable juror another equally acceptable juror. Accordingly, the defendant has not demonstrated that he was harmed by the court's substitution of an alternate for E.A. For the foregoing reasons, we conclude that the court did not violate § 54-82h (c) when, after learning that E.A. reportedly was ill and holding a hearing, it excused E.A. and replaced her with an alternate juror. B Next, we address the defendant's argument, which he asserts for the first time on appeal, that the court violated various constitutional rights when it excused E.A. and replaced her with an alternate. We conclude that this unpreserved claim is unreviewable because, despite the constitutional label he has affixed to this claim, the defendant has failed to allege a claim of constitutional magnitude. The defendant claims on appeal that "the excusal of the juror E.A. by a clerk or some other unauthorized person outside of the courtroom violated . the following interrelated and overlapping constitutional rights: the right to be present, the right to individual voir dire, the right to be heard by the defendant himself and by counsel, the right to due process of law, and the right to a public trial." Because the defendant concedes that he did not raise this claim at trial, we consider his claim pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). "Under Golding, a defendant may prevail on an unpreserved claim only if the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation . exists and . deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." (Internal quotation marks omitted.) State v. Wright, 319 Conn. 684, 688, 127 A.3d 147 (2015). "[T]he first two [prongs of Golding ] involve a determination [as to] whether the claim is reviewable; the second two . involve a determination [as to] whether the defendant may prevail." (Internal quotation marks omitted.) State v. LaBrec, supra, 270 Conn. at 555, 854 A.2d 1. The defendant's unpreserved claim fails under the second prong of Golding. "This court previously has held . that the process for selecting and dismissing alternate jurors, including § 54-82h (c), does not implicate constitutional rights." State v. Alston, 272 Conn. 432, 456, 862 A.2d 817 (2005) ; see also State v. LaBrec, supra, 270 Conn. at 558-59, 854 A.2d 1 (Golding review of defendant's claim that trial court violated § 54-82h [c] unavailable because claim was not of constitutional magnitude). Although the record is adequate for review, the defendant's claim, which is predicated on the court's allegedly improper excusal and replacement of E.A., is not of constitutional magnitude and, therefore, does not warrant Golding review. II The defendant next claims that "the trial court abused its discretion in refusing to rule on the motion in limine and in denying a mistrial after [a] witness testified, just as defense counsel had anticipated, that the defendant went to jail for robbery." We disagree. The following additional facts pertain to this claim. The defendant filed a motion in limine in which he sought an order prohibiting the state from introducing evidence of his 2007 arrest and robbery charge. On January 7, 2013, the court held a hearing on the motion. At the hearing, it was undisputed that the defendant had been convicted of the 2007 robbery charge. The state represented that it did not intend to introduce any evidence of the defendant's robbery conviction during its case-in-chief. The court then stated that it would "hold this motion in abeyance until such time as the defense puts on a case and you decide to put [the defendant] on the stand or somebody else. And it will be relevant at that moment since the state just told me it's not going to put on evidence of . his prior robbery conviction in its case-in-chief." Defense counsel expressed concern that certain witnesses who had talked about the defendant's prior bad acts at the defendant's hearing on probable cause would do so again at his trial. The court replied, "[i]f somebody says something objectionable, object and I'll hear your objection. I don't know what the witnesses are going to say. I'm not even sure who all the witnesses are going to be. I'm not going to anticipate something. I'm going to wait until it happens." Nevertheless, defense counsel then asked the court to instruct the state to direct Johnson, one of the aforementioned witnesses at the probable cause hearing, not to mention the defendant's robbery conviction in her trial testimony. The court declined this invitation, concluding the matter by stating that "the state's attorney just told me he wasn't going to ask or raise issues about [the defendant's] robbery conviction in the case-in-chief. If somebody says something objectionable, object." At the defendant's trial, Johnson testified during the state's case-in-chief. Twice during her testimony, Johnson referred to the defendant's prior robbery conviction. After the first instance, which occurred on direct examination, the defendant objected, and the court excused the jury. Defense counsel then made an oral motion for a mistrial, which the court denied. The court solicited from defense counsel a suggestion for a curative instruction to the jury, indicating that in the absence of a suggestion it would "tell the jury [to] ignore the last statement that was made," and would order the statement stricken from the record. Defense counsel declined to suggest a curative instruction. When the jury returned to the courtroom, the court directed the jurors to ignore Johnson's mention of the defendant's robbery conviction. Thereafter, during a recess, defense counsel obtained the court's permission to reduce the motion for a mistrial to writing and submit it. The court then explained the basis for its prior denial of the oral motion for a mistrial-namely, the lack of detail that Johnson had provided regarding the defendant's prior conviction. The court also noted that, in the absence of a suggested curative instruction from the defendant, the court "thought it was better not to mention the statement itself because all that would do is highlight it. And I struck it from the record...." Although after Johnson first mentioned the defendant's prior conviction the court twice instructed her not to volunteer any information beyond the call of counsel's questions, the court's instructions proved ineffective. During the state's redirect examination, Johnson unresponsively referred to the defendant having been released from jail. See footnote 6 of this opinion. Immediately thereafter, the court said "I'm going to order that last comment stricken. Ignore it. Let's proceed." Defense counsel then made a second oral motion for a mistrial, which the court denied. In its final instructions to the jury, the court directed jurors not to consider evidence that had been stricken from the record. Our review of a trial court's ruling on a motion in limine is limited to determining whether the court properly exercised its discretion. "It is axiomatic that [t]he trial court's ruling on the admissibility of evidence is entitled to great deference.... In this regard, the trial court is vested with wide discretion in determining the admissibility of evidence.... Accordingly, [t]he trial court's ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court's discretion.... [I]n determining whether there has been an abuse of discretion, every reasonable presumption should be made in favor of the correctness of the trial court's ruling...." (Internal quotation marks omitted.) State v. Creech, 127 Conn.App. 489, 495, 14 A.3d 434, cert. denied, 301 Conn. 906, 17 A.3d 1045 (2011). Our review of a court's denial of a motion for a mistrial is similarly curtailed. "It is only when an abuse of discretion is manifest or where an injustice appears to have been done that a reversal will result from the trial court's exercise of discretion.... "[Although] the remedy of a mistrial is permitted under the rules of practice, it is not favored.... If curative action can obviate the prejudice, the drastic remedy of a mistrial should be avoided.... The trial court enjoys wide discretion in deciding whether a mistrial is warranted . and its evaluation as to events occurring before the jury is to be accorded the highest deference.... Every reasonable presumption will be given in favor of the trial court's ruling . because the trial court, which has a firsthand impression of the jury, is in the best position to evaluate the critical question of whether the . jurors' exposure has prejudiced a defendant." (Internal quotation marks omitted.) State v. Anderson, 163 Conn.App. 783, 791, 134 A.3d 741, cert. denied, 321 Conn. 909, 138 A.3d 931 (2016). We turn first to the defendant's claim that the court abused its discretion by refusing to rule on his motion in limine. The court characterized its action as holding the motion in abeyance. We conclude that the court reserved decision on the motion with regard to the defendant's request to preclude the state from offering evidence regarding the prior robbery conviction when it accepted the state's representation that it was not going to offer any such evidence in its case-in-chief, ruling that the defendant would have to wait until "somebody says something objectionable" and then object. We further conclude that the court's reservation of decision on the motion was a proper exercise of its discretion. See Practice Book § 42-15 (court may reserve decision on motion in limine). The defendant argues that the foreseeability both of the state calling Johnson as a witness and of Johnson's mentioning the defendant's prior conviction, in light of her divulgence of the same at the probable cause hearing, indicates that the court abused its discretion. Put differently, he argues that the court vitiated the very purpose of a good faith motion in limine, which is to exclude anticipated evidence. For several reasons, we disagree with the defendant that Johnson's disclosures were so foreseeable that the court's failure to order that she be warned against making them was arbitrary or unreasonable. At the hearing on the defendant's motion in limine, the state represented that it did not intend to offer evidence of the defendant's prior conviction during its case-in-chief. Additionally, the mere fact that Johnson would testify did not require the court to anticipate that she would divulge the defendant's criminal history; as the court noted, in each instance Johnson's disclosure was wholly unresponsive to the prosecutor's line of questioning. Finally, we cannot say, in this case, that an order to the prosecutor to warn Johnson against making these disclosures would have been successful. As the record reveals, the court's two warnings to Johnson following the first disclosure proved ineffective: shortly thereafter, she again mentioned that the defendant previously had been in jail. For these reasons, we cannot say that the court's election to reserve decision on the defendant's motion in limine was an abuse of discretion. We next turn to the defendant's claim that the court abused its discretion by denying his motions for a mistrial. Again, the defendant argues that the court could have avoided the harm to the defendant flowing from Johnson's reference to the defendant's robbery conviction because it was foreseeable. Specifically, he argues that the court and the state had ample time to warn Johnson in advance not to refer to the conviction in her trial testimony as she had done at the probable cause hearing. The defendant also argues that he suffered prejudice because the jury readily could infer that he had gone to jail for robbery in the recent past: Contrary to the court's characterization of Johnson's testimony as lacking in detail, the prejudice to the defendant was not minimized by the jury not knowing the degree of the charged robbery, when it occurred, when the defendant went to jail for it, and how much jail time he received. We disagree. As we already have noted, the giving of a curative instruction, such as the court gave here, carries great weight in our determination of whether the court's denial of a motion for mistrial was an abuse of discretion. See State v. Anderson, supra, 163 Conn.App. at 791, 134 A.3d 741. Here, after both of Johnson's unresponsive disclosures that the defendant had been convicted of robbery and had previously been in jail, the court promptly gave the jury a curative instruction directing jurors to ignore each statement and informing them that each statement would be stricken from the record. Additionally, in its final instructions, the court instructed the jurors that they were not to consider as evidence any testimony that had been stricken from the record. "It is well established that, [i]n the absence of an indication to the contrary, the jury is presumed to have followed [the trial court's] curative instructions.... The burden is on the defendant to establish that, in the context of the proceedings as a whole, the challenged testimony was so prejudicial, notwithstanding the court's curative instructions, that the jury reasonably cannot be presumed to have disregarded it." (Citation omitted; internal quotation marks omitted.) State v. Nash, 278 Conn. 620, 659-60, 899 A.2d 1 (2006) ; see also State v. Doehrer, 200 Conn. 642, 654, 513 A.2d 58 (1986) ("[a]ny possible prejudice stemming from the portion of the question that the jury did hear was cured by the prompt curative instruction and the further instruction given by the judge in his final charge"); State v. Williams, 64 Conn.App. 512, 539-40, 781 A.2d 325 (denial of motion for mistrial not abuse of discretion where, immediately following prosecutor's question "[d]o you recall [the defendant] going to jail back in October of 1996?" court instructed jury to "[p]lease ignore that, ladies and gentlemen" and directed prosecutor to discontinue line of questioning), cert. granted on other grounds, 258 Conn. 911, 782 A.2d 1251 (2001) (appeal dismissed April 24, 2003). Here, the defendant has not carried his burden to demonstrate that the prejudicial effect of Johnson's testimony exceeded the ameliorative effect of the court's curative instructions. Indeed, each curative instruction that the court gave was carefully calculated to mitigate any prejudice. As the court told defense counsel, it had opted generally to direct jurors to ignore Johnson's foregoing statement rather than possibly to highlight the statement by specifically mentioning it. Although invited to suggest the language in which the court should have couched the curative instruction, "[t]he defendant . neither submitted a request to charge nor took exception to the court's charge on this point. He cannot now be heard to complain that the trial court failed to cure any prejudice caused by [the offending] remark." State v. Moye, 199 Conn. 389, 396, 507 A.2d 1001 (1986) (where court gave curative instruction couched in general terms to avoid undue emphasis on remark and defendant failed to suggest alternative or object to court's instruction, denial of motion for mistrial was not abuse of discretion). Additionally, the state's case against the defendant was otherwise strong. The state presented ample evidence on the basis of which the jury reasonably could have found that the defendant committed these crimes. The robbery of the victim took place in the same manner in which the defendant had told Johnson he planned to carry it out. The testimony of numerous witnesses, corroborated by cell phone evidence, placed the defendant at the scene during the events in question. Afterward, the defendant was wearing the victim's leather jacket and boasting of having taken the victim's marijuana, cash, gold chain, and cell phone. In sum, on the record before us, it does not appear that an injustice has been done. The court acted within its wide discretion in determining that its curative instructions had so obviated any prejudice flowing from Johnson's remarks that a mistrial was unwarranted. The judgment is affirmed. In this opinion the other judges concurred. General Statutes § 54-82h (c) provides in relevant part: "If, at any time, any juror shall, for any reason, become unable to further perform the duty of a juror, the court may excuse such juror and, if any juror is so excused or dies, the court may order that an alternate juror who is designated by lot to be drawn by the clerk shall become a part of the regular panel and the trial or deliberation shall then proceed with appropriate instructions from the court as though such juror had been a member of the regular panel from the time when the trial or deliberation began...." We refer to the jurors by initials to protect their legitimate privacy interests. State v. Williams, 108 Conn.App. 556, 558 n. 2, 948 A.2d 1085 (2008). Additionally, the defendant's claims that E.A. was excused off the record, in secret, and outside his presence or the presence of counsel, in violation of his constitutional rights, rest on the factual premise that E.A. was excused when she was dismissed from the jury assembly room instead of when the court decided to employ the statutory procedure to replace her. As we previously have discussed in part I A of this opinion, this premise is incorrect. After learning that E.A. had been dismissed from the jury assembly room, the court excused her on the record, after giving counsel notice of her reported illness and the opportunity to be heard. The defendant also sought to preclude the state from introducing evidence regarding his "previous involvement in a domestic violence case." That portion of the motion in limine is not at issue in this appeal. The defendant requested the same instruction with regard to Patterson, another witness who had mentioned the defendant's criminal history at the probable cause hearing. Patterson did not mention the defendant's prior conviction in his trial testimony. In the first instance, Johnson was testifying regarding her relationships with the defendant and the victim. Johnson testified that the defendant, a friend, had introduced her to the victim, "and he and I instantly hit it off. I was just like oh he's mad cool. We exchanged phone numbers and then we became friends as well. And then later, [the defendant] went to jail for robbery-" In the second instance, Johnson referred to the defendant having been released from jail in the following exchange that occurred between the prosecutor and Johnson: "Q. Okay. The timeline-when did [the defendant] live in your mother's house? Do you remember? Was it before November of 2009 or after? "A. Yeah. During the . duration of time when he just came home from jail." The court stated the following: "Okay, members of the jury, just before you were excused a moment ago, the witness made a statement that was unresponsive to the question that was asked. You are to ignore that statement. The statement is stricken from the record. Let's proceed." After denying the defendant's first oral motion for a mistrial, the court admonished Johnson outside the presence of the jury, stating "just don't volunteer things, okay?" Shortly thereafter, again outside the presence of the jury, the court reiterated its admonition during the following exchange among the court, the prosecutor, and Johnson: "The Court: [I] take it you had an opportunity to speak to your witness about making voluntary statements regarding criminal conduct by this defendant? "[The Prosecutor]: [S]he came in late this morning and I was unable to. And the first time she responded to the subpoena was Monday morning. I was remiss. "The Court: Okay. Well I think I indicated on the record before, ma'am, if you're asked a question about what [the defendant] said, you can say what [the defendant] said but just don't volunteer stuff that you're not asked about, all right? "The Witness: All right." We note that the court did reserve decision on the motion in limine with regard to the state's use of the defendant's prior conviction for impeachment purposes "until such time as the defense puts on a case and you decide to put [the defendant] on the stand.... And it will be relevant at that moment since the state just told me it's not going to put on evidence of . his prior robbery conviction in its case-in-chief." Because the defendant elected not to testify, the state had no occasion to introduce impeachment evidence. See State v. Crumpton, 202 Conn. 224, 230, 520 A.2d 226 (1987) (prior conviction may be admissible if defendant testifies, putting credibility in issue). Insofar as the specific basis of the defendant's claim on appeal is the court's denial of his request for an instruction to Johnson not to testify as to the defendant's robbery conviction, we note that the defendant did not include this request in his written motion in limine but only requested it orally at the hearing on that motion. The state argues that the court was entitled to disregard the motion because it did not comply with Practice Book § 42-15, which states that a motion in limine "shall be in writing...." Nevertheless, the state neither objected to the defendant's request on this ground nor argues before this court that it was deprived of notice or otherwise prejudiced by the oral motion. Accordingly, we will consider the denial of the defendant's oral request as a basis for this appeal. Cf. State v. Andrews, 313 Conn. 266, 273 n. 4, 96 A.3d 1199 (2014) (rejecting defendant-appellant's claim that court should have denied state's oral motion in limine summarily as procedurally improper where defendant did not object to motion on procedural grounds or claim on appeal that he was deprived of adequate notice to respond or otherwise was harmed, and cited no authority). We note briefly the defendant's argument that the court's denial of his motions for a mistrial was an abuse of discretion because Johnson referred to "the specific legal consequences attendant to [the defendant's prior] conduct." State v. Nash, supra, 278 Conn. at 659, 899 A.2d 1. In Nash, one of our Supreme Court's reasons for affirming the trial court's denial of the defendant's motion for mistrial was that "the allegedly improper statement . that [the witness] knew the defendant 'from previous related police intervention in the area in the past' is vague as to whether the defendant had engaged in any misconduct to prompt the police intervention. [The witness'] statement conceivably could have been a reference to a situation in which the defendant had been a victim, a witness or an innocent bystander." Id., at 658, 899 A.2d 1. In particular, the statement "[did] not reference explicitly a notorious criminal past . specific facts concerning improper conduct by the defendant [or] the specific legal consequences attendant to such conduct." (Citation omitted.) Id., at 658-59, 899 A.2d 1. Although the court in Nash observed that the absence of these references weighed in favor of concluding that the court properly had denied the motion for a mistrial in that case, Nash does not stand for the proposition that the presence of any such reference requires a mistrial. Furthermore, in the present case, as in Nash, "[t]o the extent that the jury arguably could have interpreted the isolated statement to mean that the defendant had engaged in prior misconduct . and thus it potentially could have relied on that statement as improper propensity evidence, it is significant that the trial court provided a curative instruction to the jury." Id., at 659, 899 A.2d 1. Accordingly, the defendant's reliance on Nash is misplaced.

12486158

STATE of Connecticut v. Frederick ACKER.

State v. Acker

2016-06-21

No. 38285.

938

940

141 A.3d 938

141

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:13.996264+00:00

Fastcase

STATE of Connecticut v. Frederick ACKER.

STATE of Connecticut v. Frederick ACKER. No. 38285. Appellate Court of Connecticut. Submitted on briefs May 9, 2016. Decided June 21, 2016. Steven A. Colarossi filed a brief for the appellant (defendant). David S. Shepack, state's attorney, Jonathan Knight, senior assistant state's attorney, and Gregory L. Borrelli, deputy assistant state's attorney, filed a brief for the appellee (state). BEACH, SHELDON and GRUENDEL, Js.

1133

7068

PER CURIAM. The defendant, Frederick Acker, appeals from the judgment of the trial court finding him in violation of his probation pursuant to General Statutes § 53a-32. The defendant contends, inter alia, that the evidence adduced at trial was insufficient to establish that violation. On appeal, the state agrees. We reverse the judgment of the trial court. In 2013, the defendant was charged by long form information with numerous counts of animal cruelty in violation of General Statutes § 53-247(a). Following a court trial, the defendant was found guilty of fifteen such counts. On January 23, 2014, the court sentenced the defendant to a total effective sentence of six months incarceration, execution suspended, with two years of probation. Among the special conditions of probation entered at that time was the requirement that "[i]f you attempt to operate any animal rescue operation you shall not confine any animal in any facility that has not first been inspected and approved by the animal control officer for the jurisdiction where the shelter is located." On March 12, 2015, probation officer David K. Maus inspected the premises of 359 Spring Hill Road in Monroe (property). An animal shelter known as The Society for the Prevention of Cruelty to Animals of Connecticut (shelter) was located on the property. The defendant lived on the property and volunteered at the shelter. In his application for an arrest warrant, Maus averred that he and "Chief Probation Officer Peter Bunosso conducted a home visit to the [property]. [The defendant] was not available at the time and a staff member accompanied [us] on a detailed inspection. According to the staff member and [the town of Monroe] Animal Control Officer, [the defendant] is only allowed to have 29 dogs on his property. During the inspection 47 dogs were located. Also located in the inspection were several areas of [concern] including . broken shelters (roof over the dog cage) and cages that appeared too small for the dogs." Maus therefore opined that "there is probable cause to issue an arrest warrant charging [the defendant] with [v]iolation of [p]robation." An arrest warrant subsequently was issued. The court held a hearing on the violation of probation charge on August 21, 2015. At the close of the evidentiary phase of that proceeding; see State v. Maurice M., 303 Conn. 18, 25-26, 31 A.3d 1063 (2011) ; the court found that the defendant had failed to comply with the condition of his probation prohibiting him from confining "any animal in any facility that has not first been inspected and approved by the animal control officer for the jurisdiction where the shelter is located." In the dispositional phase of the proceeding, the court revoked the defendant's probation and sentenced him to a term of six months incarceration. From that judgment, the defendant now appeals. On appeal, the defendant maintains that the evidence was insufficient to support the court's finding that he violated the terms of his probation. "The law governing the standard of proof for a violation of probation is well settled.... [A]ll that is required in a probation violation proceeding is enough to satisfy the court within its sound judicial discretion that the probationer has not met the terms of his probation.... It is also well settled that a trial court may not find a violation of probation unless it finds that the predicate facts underlying the violation have been established by a preponderance of the evidence at the hearing-that is, the evidence must induce a reasonable belief that it is more probable than not that the defendant has violated a condition of his or her probation.... In making its factual determination, the trial court is entitled to draw reasonable and logical inferences from the evidence.... Accordingly, [a] challenge to the sufficiency of the evidence is based on the court's factual findings. The proper standard of review is whether the court's findings were clearly erroneous based on the evidence.... A court's finding of fact is clearly erroneous and its conclusions drawn from that finding lack sufficient evidence when there is no evidence in the record to support [the court's finding of fact] . 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.) State v. Maurice M., supra, 303 Conn. at 26-27, 31 A.3d 1063. At the revocation proceeding, the state offered the testimony of Maus and Bunosso, the probation officers who visited the property on March 12, 2015. As the state notes in its appellate brief, "neither probation officer for the state testified that the shelter was not first inspected and approved by an animal control officer for the jurisdiction." We have reviewed the record and concur with the state's assessment that it contains "no evidence . by the state to establish that an animal control officer for the jurisdiction had not first inspected the [shelter] prior to the defendant returning to work as a volunteer." (Emphasis omitted.) We therefore conclude that there is no evidence to substantiate a finding that the defendant violated the condition of his probation prohibiting him from confining "any animal in any facility that has not first been inspected and approved by the animal control officer for the jurisdiction where the shelter is located." Because that finding is clearly erroneous, the revocation of the defendant's probation cannot stand. The judgment is reversed and the case is remanded with direction to render judgment for the defendant. The defendant also alleges a due process violation. Because we conclude that the evidence is insufficient to establish a violation of the terms of the defendant's probation, we do not consider that claim. Indeed, the defendant presented evidence suggesting otherwise. He offered the testimony of Susan Fernandez, the director of the shelter, who stated that the shelter was "in compliance" and had not received any notices of violations from the animal control officer or zoning authorities. The defendant also offered the testimony of Edward Risko, the animal control officer for the town of Monroe. Risko testified that neither he nor "anyone with similar jurisdiction in Monroe" had issued any violation notices with respect to the shelter since the time that the defendant's conditions of probation were entered. As the state acknowledged in its appellate brief, that evidence "supports the inference that the shelter had . been approved to operate...." (Emphasis omitted.)

12486157

HABITAT FOR HUMANITY OF COASTAL FAIRFIELD COUNTY, INC. v. Kim LANHAM et al.

Habitat for Humanity of Coastal Fairfield Cnty., Inc. v. Lanham

2016-06-21

No. 37940.

937

938

141 A.3d 937

141

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:13.996264+00:00

Fastcase

HABITAT FOR HUMANITY OF COASTAL FAIRFIELD COUNTY, INC. v. Kim LANHAM et al.

HABITAT FOR HUMANITY OF COASTAL FAIRFIELD COUNTY, INC. v. Kim LANHAM et al. No. 37940. Appellate Court of Connecticut. Argued March 2, 2016. Decided June 21, 2016. Kim Lanham, self-represented, the appellant (named defendant). Barbara M. Schellenberg, Bridgeport, with whom, on the brief, was Vincent M. Marino, Middletown, for the appellee (plaintiff). ALVORD, PRESCOTT and MULLINS, Js.

144

911

PER CURIAM. The defendant Kim Lanham appeals from the judgment of strict foreclosure, rendered by the trial court, in favor of the plaintiff, Habitat for Humanity of Coastal Fairfield County, Inc. After reviewing and considering the record in this case, including the briefs and arguments of the parties on appeal, we conclude that the court properly rendered a judgment of strict foreclosure. There is no error. The judgment is affirmed and the case is remanded to the trial court for the purpose of setting new law days.

12487641

STATE of Connecticut v. Lishan WANG.

State v. Lishan Wang

2016-09-13

No. 19637.

906

924

145 A.3d 906

145

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

2021-08-27T20:57:14.000696+00:00

Fastcase

STATE of Connecticut v. Lishan WANG.

STATE of Connecticut v. Lishan WANG. No. 19637. Supreme Court of Connecticut. Argued May 5, 2016. Decided Sept. 13, 2016. Mark Rademacher, assistant public defender, for the appellant (defendant). Nancy L. Walker, deputy assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Eugene Calistro, Jr., senior assistant state's attorney, for the appellee (state). ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, McDONALD, ESPINOSA and ROBINSON, Js. This case originally was scheduled to be argued before a panel of this court consisting of Chief Justice Rogers and Justices Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson. Although Chief Justice Rogers was not present at oral argument, she has read the briefs and appendices, and has listened to a recording of oral argument prior to participating in this decision.

8622

55277

PALMER, J. The issue that we must resolve in this appeal is whether the trial court properly granted the state's motion to forcibly medicate the defendant, Lishan Wang, in order to restore his competency to stand trial. The defendant was charged with murder and various other offenses in connection with the shooting death of Vajinder Toor in the town of Branford on April 26, 2010. Over the next several years, the defendant was found incompetent to stand trial, restored to competency, and then found incompetent again. After the second finding of incompetency, the trial court conducted evidentiary hearings on the question of whether the defendant should be forcibly medicated. The court ultimately concluded that the state had established by clear and convincing evidence that forcible medication of the defendant would not violate his federal due process rights under the test set forth in the decision of the United States Supreme Court in Sell v. United States, 539 U.S. 166, 180-81, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003), and ordered that the defendant be forcibly medicated. This appeal followed. The primary claim that the defendant raises on appeal is that the trial court incorrectly determined that it was "substantially likely" that forcibly medicating him would restore his competency to stand trial, as that phrase is used in Sell. Id., at 181, 123 S.Ct. 2174 ; see id. (to order involuntary administration of drugs for trial competence purposes, court "must find that [the] administration of the drugs is substantially likely to render the defendant competent to stand trial"). We disagree and affirm the decision of the trial court. The record reveals the following undisputed facts and procedural history. On April 26, 2010, Toor, a physician, was shot and killed outside his residence in Branford. Later that day, the defendant, who also was a physician, was arrested and charged with Toor's murder, the attempted murder of Toor's wife, carrying a pistol without a permit and possession of a weapon in a motor vehicle. On September 28, 2010, the trial court, Fasano, J., found the defendant incompetent to stand trial but restorable, and ordered that he be admitted to the Whiting Forensic Division of Connecticut Valley Hospital (Whiting) for treatment. Thereafter, Judge Fasano found that the defendant had been restored to competency and granted his motion to represent himself. On January 30, 2015, Thomas Ullmann, the supervisor of the Office of the Public Defender for the judicial district of New Haven, filed a motion for the appointment of counsel, in which he requested that the trial court revoke the defendant's status as a self-represented party and appoint a public defender to represent him on the ground that the defendant was incompetent to represent himself. In support of this claim, Ullmann referred to hundreds of motions that the defendant had filed in the trial court, including at least seventy in which the defendant had sought permission to obtain information from Kingsbrook Jewish Medical Center (Kingsbrook) in Brooklyn, New York, where the defendant had worked for two years with Toor until the defendant was terminated in May, 2008. In other motions, the defendant claimed that he had been wrongfully terminated by Kingsbrook because of false accusations made by Toor, claimed that the defendant, not Toor, was the real victim, and questioned the identification of Toor's body by the Office of the Chief Medical Examiner. After an evidentiary hearing, the trial court, O'Keefe, J., found the defendant incompetent to stand trial and ordered that he again be admitted to Whiting for evaluation and treatment. The trial court also ordered that a public defender represent the defendant until it could be determined whether treatment could restore him to competency. On September 14, 2015, the trial court conducted a second competency hearing for the purpose of determining whether the defendant had been restored to competency. Mark S. Cotterell, a psychiatrist and forensic monitor employed by Whiting, testified at the hearing that he had been involved in the evaluation of the defendant from late 2010 until early 2011 during the defendant's first admission to Whiting. After the defendant was sent back to Whiting in April, 2015, Cotterell again had been assigned to evaluate him and to prepare a report. In performing this task, Cotterell met repeatedly with the defendant and with members of his treatment team, and reviewed his treatment records. Cotterell testified that the defendant had been diagnosed with "unspecified schizophrenia spectrum and other psychotic disorder." In Cotterell's opinion, the defendant was not competent to stand trial but could be restored to competency. Cotterell also testified that the least restrictive placement that would still be effective would be for the defendant to remain at Whiting as an inpatient. Cotterell further testified that there were medications that could help restore the defendant to competency, but the defendant did not believe that he had any psychiatric disorder and did not want to take any medications. According to Cotterell, studies showed that the success rate of such medications was "anywhere from the mid-50 percent range up to about 70 percent." Cotterell also testified that, "based on our clinical experience, we can probably get at least . that much, if not sometimes more, simply because the research doesn't always include longer term treatment." At the conclusion of the hearing, the trial court found that the defendant was incompetent to stand trial and that the "normal treatment" that Cotterell had described was "not going to work here." The trial court appointed Gail Sicilia, a psychiatric advanced practice registered nurse employed by Yale University, as the defendant's health-care guardian pursuant to General Statutes § 54-56d (k)(3)(A). Finally, the trial court ordered that Sicilia prepare a report setting forth her findings and recommendations concerning the forced administration of antipsychotic medication to the defendant. On October 26, 2015, the trial court held an evidentiary hearing on the question of whether the defendant should be forcibly medicated. Cotterell testified at the hearing that, despite the ongoing efforts of the staff at Whiting, the defendant had not made any substantial progress toward competency since being admitted to Whiting in April, 2015. Cotterell recommended that the defendant be treated with the antipsychotic medications Olanzapine and Ziprasidone. Cotterell testified that these medications had "a substantial likelihood of treating the symptoms" that the defendant was experiencing, "based on our clinical experience dealing with these kinds of patients and these kinds of medication." In addition, the published research indicated a "greater than 50 percent chance . that [those medications will result] in a substantial improvement in the [patient's] clinical state." Cotterell wrote in a memorandum documenting the proposed medication regimen for the defendant that the "[n]otable potential side effects" of Olanzapine are dizziness, dry mouth, joint pain, constipation, orthostatic hypotension, and tachycardia, and that there is "some risk" of weight gain, hyperglycemia or sedation. A notable side effect is one that is either frequent or significant, or both. The "notable potential side effects" of Ziprasidone are dizziness, stiffness, sedation, nausea, dry mouth, skin rash and low blood pressure, and there is a "low [risk]" of weight gain or sedation with long-term use. Cotterell testified that "a lot of clients who use these medications . don't actually experience sedation" and that sedation was "not something that [one] would expect to be universally present." In addition, he testified that the staff at Whiting would carefully monitor the defendant and any side effects from his medications that could interfere with his ability to present a defense at trial and would report their observations to the court. Sicilia testified at the October 26, 2015 hearing that she had met several times with the defendant, and also with Cotterell and others who provided care to the defendant at Whiting. Sicilia's observations of the defendant were consistent with Cotterell's diagnosis. Sicilia testified that, in her opinion, it would be in the defendant's best interest to be treated with antipsychotic medications, both for purposes of restoring him to competency to stand trial and for his general mental health. Specifically, she believed that the defendant's "delusions affect how he's functioning" and that the medications would "[decrease] the delusions to the point where he could ignore some of [them] . go about his daily living . [and] function at a higher level." When she suggested this course of treatment to the defendant, however, he adamantly refused, stating that he did not need medication and that he should not be at Whiting. In Sicilia's professional opinion, there were no other treatments that would be less intrusive and that could restore the defendant to competency. After the October 26, 2015 hearing, the state filed a motion, along with a supporting memorandum of law, requesting that the trial court order the administration of medication to the defendant, and the defendant filed a memorandum of law in opposition to forced medication. The trial court heard arguments on the issue on November 18, 2015, and, at the conclusion of the hearing, found that the state had proven all of the elements of the test set forth in Sell v. United States, supra, 539 U.S. at 179-81, 123 S.Ct. 2174 for establishing the constitutionality of an order of involuntary medication by clear and convincing evidence. Accordingly, the court granted the state's motion for forced medication. Thereafter, the trial court supplemented its findings with a memorandum of decision in which it credited Cotterell's testimony that the recommended medications "are effective in restoring patients to competency from the mid-50 percent range up to 70 percent." The court concluded that this rate of effectiveness constituted a substantial likelihood that the defendant would be restored to competency for purposes of Sell. The court also concluded that the medications are "substantially unlikely to have side [e]ffects that will interfere significantly with the defendant's ability to assist counsel in conducting a trial defense" and that there are no less intrusive treatments that would be effective. Finally, the court credited Sicilia's testimony that the administration of the medications would be medically appropriate and in the defendant's best medical interest. This appeal followed. The defendant claims that the trial court incorrectly determined that the state proved by clear and convincing evidence that there is "a need for [forced medication] sufficiently important to overcome the [defendant's] protected interest in refusing it...." Sell v. United States, supra, 539 U.S. at 183, 123 S.Ct. 2174. Specifically, the defendant contends that the state failed to prove that it is substantially likely that forced medication will restore him to competency because a 55 to 70 percent probability of restoration to competency does not constitute a substantial likelihood for purposes of Sell, and, even if it did, the state failed to prove that there was a 55 to 70 percent probability that forced medication would restore the defendant to competency. In addition, the defendant challenges the trial court's findings that (1) it is substantially unlikely that the side effects of forced medication will deprive the defendant of his right to a fair trial, (2) there is no less restrictive alternative to forced medication, and (3) the involuntary administration of medication is in the defendant's best medical interest. We conclude that the trial court applied the proper standard and that its findings were supported by clear and convincing evidence. The following legal principles guide our analysis of the defendant's claims. "It is well established that [a]n individual has a constitutionally protected liberty interest in avoiding involuntary administration of antipsychotic drugs-an interest that only an essential or overriding state interest might overcome. [Id., at 178-79, 123 S.Ct. 2174 ] (quoting Riggins v. Nevada, 504 U.S. 127, 134, 135, 112 S.Ct. 1810, 118 L.Ed.2d 479 [ (1992) ] ). This is because [t]he forcible injection of medication into a nonconsenting person's body represents a substantial interference with that person's liberty. Washington v. Harper, 494 U.S. 210, 229, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990). Indeed, it has been observed that when the purpose or effect of forced drugging is to alter the will and the mind of the subject, it constitutes a deprivation of liberty in the most literal and fundamental sense. [Id., at 237-38, 110 S.Ct. 1028 ] (Stevens, J., dissenting). "At the same time, the government has a significant interest in bringing a person accused of a serious crime to trial. See Sell [v. United States, supra, 539 U.S. at 180, 123 S.Ct. 2174 ]. The power to bring an accused to trial is fundamental to a scheme of ordered liberty and prerequisite to social justice and peace. Illinois v. Allen, 397 U.S. 337, 347, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970) (Brennan, J., concurring). It surely is not an overstatement to observe that the government's ability to enforce the criminal laws in accordance with due process is the foundation on which social order rests and from which individual liberties emanate. Thus, when an individual commits a crime, he forfeits his liberty interests to the extent necessary for the government to bring him to trial. Recognizing this important governmental interest, the [United States] Supreme Court has held that in some circumstances, forced medication to render a defendant competent to stand trial for a crime that [that person] is charged with committing may be constitutionally permissible, even though the circumstances in which it is appropriate may be rare. See Sell [v. United States, supra, at 180, 123 S.Ct. 2174 ]. As the [United States Supreme] Court stated . [in Sell ]: "[T]he [c]onstitution permits the [g]overnment involuntarily to administer antipsychotic drugs to a mentally ill defendant facing serious criminal charges in order to render that defendant competent to stand trial, but only if the treatment is medically appropriate, is substantially unlikely to have side effects that may undermine the fairness of the trial, and, taking account of less intrusive alternatives, is necessary significantly to further important governmental trial-related interests. [Id., at 179, 123 S.Ct. 2174 ]. "Articulating a standard for determining the circumstances in which the government may obtain a court order to medicate involuntarily a defendant to render him competent to stand trial, the [United States] Supreme Court has focused on the competing interests of the defendant and the government.... United States v. Bush, 585 F.3d 806, 813 (4th Cir.2009). This standard requires the government to satisfy a four part test. First, it must show that important governmental interests are at stake.... An important governmental interest exists when the defendant is accused of a serious crime and [s]pecial circumstances do not undermine the government's interest in trying him for that crime.... Second, it must show that involuntary medication will significantly further the state's interest.... In other words, it must show that the involuntary administration of the medication is both (a) substantially likely to render the defendant competent to stand trial and (b) substantially unlikely to have side effects that will interfere significantly with the defendant's ability to assist counsel in conducting a trial defense, thereby rendering the trial unfair.... Third, it must show that involuntary medication is necessary to further its interests by showing that any alternative, less intrusive treatments are unlikely to achieve substantially the same result.... Fourth, it must show that the administration of the drugs is medically appropriate, or that it is in the defendant's best medical interest in light of his medical condition. . United States v. Evans, 404 F.3d 227, 235 (4th Cir.2005), quoting Sell v. United States, supra, 539 U.S. [at] 180-81 [123 S.Ct. 2174]." (Footnote added; internal quotation marks omitted.) State v. Seekins, 299 Conn. 141, 154-56, 8 A.3d 491 (2010). The court in Sell did not prescribe the standard of appellate review of the trial court's conclusions with respect to the four factors for determining the constitutionality of forced medication. Most federal circuit courts of appeals have concluded, however, that the first prong, regarding the government's interest in restoring the defendant to competency, is a question of law subject to de novo review and the remaining prongs are factual questions subject to review for clear error. See United States v. Dillon, 738 F.3d 284, 291 (D.C.Cir.2013) (citing cases). Although we generally agree with this approach, we disagree that the second prong presents a pure question of fact. Rather, we conclude that, for purposes of determining whether "the involuntary administration of the medication is both (a) substantially likely to render the defendant competent to stand trial and (b) substantially unlikely to have side effects that will interfere significantly with the defendant's ability to assist counsel in conducting a trial defense"; (internal quotation marks omitted) State v. Seekins, supra, 299 Conn. at 156, 8 A.3d 491 ; the meanings of the terms "substantially likely" and "substantially unlikely" are questions of law subject to de novo review. This is because, as we discuss subsequently in this opinion, these terms have no fixed, mathematical meanings that can be readily understood and applied by an expert or fact witness; rather, their meanings vary depending on the legal interests involved, which are questions for the court. Whether the state has satisfied those legal standards, however, is a question of fact. We review the trial court's factual findings for clear error, which occurs "when there is no evidence in the record to support [the court's finding of fact], or when, although there is evidence to support the factual finding, the reviewing court, upon consideration of the entire record, is left with a definite and firm conviction that a mistake has been committed." (Internal quotation marks omitted.) Lapointe v. Commissioner of Correction, 316 Conn. 225, 264 n. 35, 112 A.3d 1 (2015). The court in Sell also did not prescribe the government's standard of proof. Most federal courts that have considered the issue, however, have concluded that the Sell factors must be proven by clear and convincing evidence. See, e.g., United States v. Diaz, 630 F.3d 1314, 1331 (11th Cir.) ("[o]ther circuit courts that have considered this issue uniformly concluded that in Sell cases the government bears the burden of proof on factual questions by clear and convincing evidence"), cert. denied, - U.S. -, 132 S.Ct. 128, 181 L.Ed.2d 49 (2011). In light of the nature and importance of the right at issue, we agree with and adopt that standard. Cf. State v. Garcia, 233 Conn. 44, 86, 658 A.2d 947 (1995) (before United States Supreme Court's decision in Sell, state was required to demonstrate factors supporting order of forced medication by clear and convincing evidence), overruled in part on other grounds sub silentio by Sell v. United States, 539 U.S. 166, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003). I With these principles in mind, we turn to the defendant's claim that the trial court incorrectly determined that forced medication "is substantially likely to render [him] competent to stand trial." Sell v. United States, supra, 539 U.S. at 181, 123 S.Ct. 2174. We disagree. The defendant contends that, even if credited, Cotterell's testimony that the recommended medications are effective in restoring patients to competency from "the mid-50 percent range up to [the] 70 percent" range does not constitute clear and convincing evidence that there is a substantial likelihood that the medications will restore him to competency. In support of this contention, the defendant relies on cases holding that a success rate of slightly higher than 50 percent does not constitute a substantial likelihood for purposes of Sell. See United States v. Arendas, United States District Court, Docket No. 1:10-CR-123 (TS), 2013 WL 1896197 (D.Utah May 6, 2013) ("a roughly 60 [percent] success rate" does not constitute substantial likelihood for purposes of Sell ); United States v. Rivera-Morales, 365 F.Supp.2d 1139, 1141 (S.D.Cal.) ("[a]lthough the court declines to determine the exact percentage of success that equates with a substantial likelihood that a defendant's competency is restored, it is clear that a chance of success that is simply more than a 50 [percent] chance of success does not suffice to meet this standard"), aff'd, 160 Fed.Appx. 648 (9th Cir.2005) ; People v. McDuffie, 144 Cal.App.4th 880, 887, 50 Cal.Rptr.3d 794 (2006) (50 to 60 percent chance of restoration "is simply not enough to support the trial court's finding that these drugs are substantially likely to render [the defendant] competent to stand trial" [internal quotation marks omitted] ); State v. Barzee, 177 P.3d 48, 61 (Utah 2007) ("[t]o the extent that [a substantial] likelihood can be quantified, it should reflect a probability of more than [70] percent"), cert. denied, 553 U.S. 1056, 128 S.Ct. 2477, 171 L.Ed.2d 771 (2008) ; see also United States v. Valenzuela-Puentes, 479 F.3d 1220, 1228 (10th Cir.2007) ("[Under Sell ] the government establishes a fact by clear and convincing evidence only if the evidence place[s] in the ultimate [fact finder] an abiding conviction that the truth of its factual contentions are highly probable.... This would be true, of course, only if the material it offered instantly tilted the evidentiary scales in the affirmative when weighed against the evidence . offered in opposition." [Citation omitted; internal quotation marks omitted.] ). For the following reasons, we do not agree with these cases and instead conclude that a substantial likelihood that the defendant will be restored to competency exists when the state establishes that it is more likely than not that forced medication will be effective. First, most of the cases on which the defendant relies do not engage in any analysis of the meaning of the term "substantially likely" but merely state conclusorily that a 50 percent probability does not satisfy that standard. See United States v. Decoteau, 904 F.Supp.2d 235, 241 (E.D.N.Y.2012) ("[n]o controlling case law defines substantially likely with precision" [internal quotation marks omitted] ). In the two cases that do engage in some analysis, the courts focused not on the meaning of "substantially likely" but on the meaning of "clear and convincing evidence." United States v. Valenzuela-Puentes, supra, 479 F.3d at 1228 ("the government establishes a fact by clear and convincing evidence only if the evidence place[s] in the ultimate [fact finder] an abiding conviction that the truth of its factual contentions are highly probable" [internal quotation marks omitted] ); see also United States v. Arendas, supra, United States District Court, Docket No. 1:10-CR-123 (TS) (citing Valenzuela-Puentes for proposition that substantial likelihood fosters "an abiding conviction [that it is] highly probable" [internal quotation marks omitted] ). For purposes of making this predictive judgment, however, we believe that the clear and convincing evidence standard pertains to the confidence level of the fact finder, not the specific degree of probability that the state must establish. See Fish v. Fish, 285 Conn. 24, 69, 939 A.2d 1040 (2008) ("[t]he function of a standard of proof, as that concept is embodied in the [d]ue [p]rocess [c]lause and in the realm of [fact-finding], is to instruct the [fact finder] concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication" [internal quotation marks omitted] ); see also id., at 134, 939 A.2d 1040 (Katz, J., concurring) ("[Clear and convincing evidence] eliminates any serious or substantial doubt concerning the correctness of the conclusion to be drawn from the evidence.... It should produce in the [fact finder's] mind a firm belief or conviction regarding the truth of the allegations sought to be established." [Internal quotation marks omitted.] ). We note, for example, that § 54-56d (k)(2) provides in relevant part that "the court may order the involuntary medication of the defendant if the court finds by clear and convincing evidence that: (A) [t]o a reasonable degree of medical certainty, involuntary medication of the defendant will render the defendant competent to stand trial...." A reasonable degree of medical certainty means that restoration to competency is more likely than not. See Struckman v. Burns, 205 Conn. 542, 554-55, 534 A.2d 888 (1987). Thus, § 54-56d (k)(2) requires the state to prove by clear and convincing evidence that it is more likely than not that the defendant will be restored to competency. Second, contrary to the implicit suggestion of the cases holding without analysis that a slightly greater than 50 percent probability is not a substantial likelihood for purposes of Sell, the term "substantially likely" has no objective, mathematical meaning. Rather, its meaning depends on the context in which it is used. Compare Southern Utah Wilderness Alliance v. Thompson, 811 F.Supp. 635, 641 (D.Utah 1993) (for purposes of ruling on request for injunction, "whether [the] [p]laintiffs have a substantial likelihood of success is judged by whether [they] have a reasonable probability of success" [internal quotation marks omitted] ), with Clinton County R-III School District v. C.J.K., 896 F.Supp. 948, 950 (W.D.Mo.1995) (for purposes of statute requiring public schools to keep child in educational setting last agreed to by school and parents unless placement is substantially likely to result in injury to child or others, "5 [percent] danger of material personal injury or some appreciable danger of serious personal injury" constitutes "substantial likelihood" [emphasis in original] ). Third, there is no indication that the court in Sell intended to change the standards that it previously had enunciated for determining whether an individual may be forcibly medicated to restore competency to stand trial. Rather, the court in Sell expressly incorporated the standards set forth in its previous decisions in Washington v. Harper, supra, 494 U.S. at 210, 110 S.Ct. 1028 and Riggins v. Nevada, supra, 504 U.S. at 127, 112 S.Ct. 1810. See Sell v. United States, supra, 539 U.S. at 178, 123 S.Ct. 2174 (Harper and Riggins "set forth the framework for determining the legal answer" in Sell ); id., at 180, 123 S.Ct. 2174 (standard set forth in Sell was "fairly implie[d]" by Harper and Riggins ). This court previously has held that, under Harper and Riggins, the state must demonstrate, "to a reasonable degree of medical certainty, [that] involuntary medication of the defendant will render him competent to stand trial...." (Footnotes omitted.) State v. Garcia, supra, 233 Conn. at 84-85, 658 A.2d 947 ; see also United States v. Weston, 134 F.Supp.2d 115, 132 (D.D.C.) (applying Harper and Riggins and concluding that, "[a]lthough . it is not certain that the medication will restore [the defendant's] competency, the [c]ourt credits the . testimony of the mental health experts that this outcome is likely"), aff'd, 255 F.3d 873 (D.C.Cir.), cert. denied, 534 U.S. 1067, 122 S.Ct. 670, 151 L.Ed.2d 583 (2001) ; Woodland v. Angus, 820 F.Supp. 1497, 1511 (D.Utah 1993) (under Harper and Riggins, "the court must consider whether to a reasonable degree of medical certainty the treatment would render the [defendant] competent"); cf. United States v. Sanchez-Hurtado, 90 F.Supp.2d 1049, 1055 (S.D.Cal.1999) (under Riggins, "the government must show that there is a sound medical basis for treatment with antipsychotic medication" [internal quotation marks omitted] ); Khiem v. United States, 612 A.2d 160, 165-66 (D.C.1992) (under Riggins, "[t]he government cannot intrude [on a defendant's] bodily integrity without a showing of overriding justification and medical appropriateness"), cert. denied, 507 U.S. 924, 113 S.Ct. 1293, 122 L.Ed.2d 684 (1993). To be sure, the court in Sell stated that the instances in which the constitution permits forced medication to restore a defendant to competency "may be rare." Sell v. United States, supra, 539 U.S. at 180, 123 S.Ct. 2174. As one commentator has noted, however, "[t]he part of the Sell test most likely to cause courts to deny the government's petition to administer involuntary medications is the requirement that 'important governmental interests [must be] at stake.' " (Emphasis in original.) D. Klein, "Curiouser and Curiouser: Involuntary Medications and Incompetent Criminal Defendants After Sell v. United States, " 13 Wm. & Mary Bill Rts. J. 897, 908 (2005). In addition to this requirement, the court also must find that forced medication is medically appropriate and in the defendant's best medical interest, and that no less intrusive treatments will achieve the same result. Sell v. United States, supra, at 181, 123 S.Ct. 2174. These standards alone will significantly narrow the class of defendants who are potentially subject to forced medication to restore competency to stand trial. We see no reason why the United States Supreme Court would have intended that there must be a substantial further narrowing of that class by requiring proof of a very high probability that forced medication will restore competency. See D. Klein, supra, at 910 (requirement that government establish substantial likelihood that forced medication will render defendant competent to stand trial "is unlikely to limit the instances in which trial courts allow involuntary medications"). Put another way, if the government can establish that it has an important interest in bringing the defendant to trial, that it will not be able to do so unless the defendant is medicated and that medication is medically appropriate and in the defendant's best medical interest, we can see no reason why the government should be further required to establish, not just that it is more likely than not that forced medication will restore the defendant to competency, but that it is highly likely that forced medication will have that effect. Accordingly, we conclude that, for purposes of determining whether forced medication is substantially likely to render a defendant competent to stand trial under Sell, "substantially likely" means more likely than not, or a greater than 50 percent probability. In our view, in light of the other three prongs of Sell that, in and of themselves, provide significant protection to defendants who are potentially subject to orders of forced medication, a more stringent interpretation of the phrase "substantially likely" in Sell v. United States, supra, 539 U.S. at 181, 123 S.Ct. 2174 would place an undue burden on the state. In the present case, Cotterell's testimony that the likelihood that the recommended medications will be effective in restoring patients to competency is at least in the mid-50 percent range, and could be as high as 70 percent, comfortably met this standard. Indeed, Cotterell testified that the likelihood of restoration could well exceed this estimate with longer term treatment. We therefore conclude that the trial court correctly determined that there was clear and convincing evidence that there was a substantial likelihood that the medications will restore the defendant to competency. The defendant contends, however, that, even if a greater than 50 percent success rate constitutes a substantial likelihood for purposes of Sell, Cotterell's testimony was not sufficient to support the trial court's finding that it was substantially likely that he would be restored to competency because Cotterell did not testify regarding the success rate for patients with the defendant's specific psychiatric diagnosis and characteristics, including his current age, his age at the onset of his symptoms, and the length of time that he has experienced the symptoms but, rather, testified only about the general effectiveness of the recommended medications. We are not persuaded by this argument. Cotterell testified that he personally had met with and evaluated the defendant, and that his opinion was based on his "clinical experience dealing with these kinds of patients and these kinds of medication." (Emphasis added.) It is implicit in this testimony that, in Cotterell's professional judgment, there was nothing about the defendant's particular condition or circumstances that would significantly reduce the effectiveness of the medications. To the extent that Cotterell relied on published research indicating a "greater than 50 percent chance . that [those medications will result in] a substantial improvement in the [patient's] clinical state," medical experts and courts simply have no choice but to rely on generalized studies when making such predictive judgments. See, e.g., D. Klein, supra, at 13 Wm. & Mary Bill Rts. J. 910 ("[g]iven the current state of knowledge about the treatment of mental illnesses, courts presently have no choice but to base their decisions on generalized, rather than individualized, information about the likelihood that involuntary medications will render defendants competent to stand trial or infringe their right to a fair trial"); see also United States v. Watson, 793 F.3d 416, 441 (4th Cir.2015) (Traxler, C.J., dissenting) ("if [general] studies do not bear on [the defendant's] particular medical condition, it seems unlikely that any academic literature short of a paper devoted entirely to the treatment of the actual defendant in question would meet the majority's unexplained standard for 'bearing' on an incompetent defendant's particular medical condition"). Accordingly, in the absence of evidence demonstrating why a general study has no application to the particular defendant, medical experts and courts properly may rely on such studies. See, e.g., State v. Barzee, supra, 177 P.3d at 78 (when state's experts relied on their clinical experience and firsthand knowledge of defendant to support conclusion that there was substantial likelihood that forced medication would restore defendant to competency, their reliance on general studies regarding success rates of medications to further support their conclusion was proper). Although the defendant cites numerous cases that have criticized the use of general success rates and anecdotal studies for purposes of a Sell analysis, he has not referred to any evidence in the present case that would support a finding that the studies on which Cotterell relied, which were not identified, were so general as to be useless for purposes of predicting the effectiveness of the recommended medications with respect to him. He also has not referred to any evidence that would support a finding that the medications that Cotterell recommended have a lower success rate for individuals with the defendant's specific diagnosis and characteristics. We therefore conclude that the trial court's finding that there was a greater than 50 percent likelihood that forced medication would restore the defendant to competency was supported by clear and convincing evidence and was not clearly erroneous. II We next address the defendant's claim that the trial court's finding that forced medication was "substantially unlikely to have side effects that will interfere significantly with [his] ability to assist counsel in conducting a trial defense, thereby rendering the trial unfair"; Sell v. United States, supra, 539 U.S. at 181, 123 S.Ct. 2174 ; was clearly erroneous. We also reject this claim. In support of this prong of Sell, the state presented evidence that Olanzapine created only "some risk" of sedation. The evidence also showed that sedation was a "[n]otable potential side [effect]" of Ziprasidone, meaning that the side effect was either frequent or significant, or both, but there was only a low risk of sedation when used long term. In addition, Cotterell testified that "a lot of clients who use these medications . don't actually experience sedation" and that sedation was "not something that [one] would expect to be universally present." Cotterell further testified that the staff at Whiting would carefully monitor the defendant and any side effects from his medications that could interfere with his ability to present a defense at trial and would report their observations to the court. We conclude that this evidence supports the trial court's finding that the recommended medications are substantially unlikely to produce side effects that will interfere with the defendant's ability to conduct a defense. With respect to Olanzapine, the evidence demonstrated that sedation is not a notable risk of the medication, that is, that side effect is neither frequent nor significant. With respect to Ziprasidone, although the evidence indicated that sedation is a notable risk of the medication, the evidence also indicated that there is only a "low" risk of sedation with long-term use. We therefore agree with the state that the trial court reasonably could have concluded, on the basis of this evidence, that, although sedation may be a frequent or significant short-term side effect of Ziprasidone, that side effect significantly diminishes over time as the patient develops a tolerance for the medication. In addition, because the staff at Whiting will continuously monitor the side effects of the medication and report their observations to the trial court, the court reasonably could have concluded that, if the defendant initially experienced significant sedation, there was no substantial likelihood that the defendant would be brought to trial before that side effect diminished sufficiently to allow the defendant to conduct a defense. In our view, the fact that a defendant is likely to experience a short-term side effect that could interfere with his right to a fair trial does not require the court to deny a request for forcible medication if it is substantially likely that the side effect will subside sufficiently to allow the defendant to conduct a defense. This is especially true when the medication will have no negative effect on the defendant's overall health. Accordingly, we reject the defendant's claim that the trial court's finding that it was substantially unlikely that forced medication would result in side effects that would interfere with his right to conduct a defense was not supported by clear and convincing evidence. III We next address the defendant's claim that the trial court's finding that forced medication is necessary because "any alternative, less intrusive treatments are unlikely to achieve substantially the same results"; Sell v. United States, supra, 539 U.S. at 181, 123 S.Ct. 2174 ; was clearly erroneous. We disagree. In support of this prong of Sell, Cotterell testified that, despite the ongoing efforts of the staff at Whiting, the defendant had not made any substantial progress toward being restored to competency from the time that he was admitted to Whiting in April, 2015, up to the October 26, 2015 hearing. Sicilia testified that there were no treatments other than forced medication that would be less intrusive and that could still restore the defendant to competency. We conclude that this testimony constituted clear and convincing evidence in support of the trial court's finding that alternative treatments were unlikely to achieve the substantially same results as forced medication. In support of his claim to the contrary, the defendant contends that, during his first stay at Whiting in late 2010 through early 2011, he had been able to develop an effective therapeutic relationship with his privately retained therapist and had been restored to competency through psychotherapy and educational classes. The defendant presented no evidence during the competency hearings in 2015, however, to refute the evidence presented by the state with respect to this prong of Sell or that would support a finding that similar treatment would still be effective in restoring the defendant to competency. Accordingly, we reject this claim. IV Finally, we address the defendant's claim that the trial court's finding that forced medication "is medically appropriate, i.e., in the patient's best medical interest in light of his medical condition"; (emphasis omitted) Sell v. United States, supra, 539 U.S. at 181, 123 S.Ct. 2174 ; was clearly erroneous. We disagree. In support of this prong of Sell, the state presented Sicilia's testimony that it would be in the defendant's best interest to be treated with antipsychotic medications, both for purposes of restoring him to competency to stand trial and for his general mental health. Sicilia further explained that the defendant's "delusions affect how he's functioning" and that the medications would "[decrease] the delusions to the point where he could ignore some of [them] . go about his daily living . [and] function at a higher level." We conclude that this testimony constituted clear and convincing evidence in support of the trial court's finding that forced medication would be in the defendant's best medical interest. The defendant contends, however, that the state has not established that it is in his best medical interest to medicate him to reduce his delusional symptoms so that he is competent to stand trial, and then to stop the medications after trial. Specifically, he contends that the most likely result of forced medication in the long run will be to "reinforce his delusional beliefs that Whiting, along with the courts and his lawyers, is out to get him." As with his other claims, however, the defendant presented no evidence at the competency hearings that would support this claim. Moreover, when the sole purpose of ordering the administration of medication is to restore a defendant to competency to stand trial, there is always a possibility that the beneficial effects of the medication will last only as long as the trial because the sole basis for the order will disappear when the trial concludes. If that possibility were enough to bar an order of forced medication, it would be barred in every case. Accordingly, we reject this claim. V In summary, we conclude that the trial court correctly determined that it is substantially likely that forced medication will restore the defendant's competency to stand trial on the basis of Cotterell's testimony that the probability that the recommended medications will be effective is greater than 50 percent. We further conclude that the trial court's findings that it is substantially unlikely that the defendant will experience side effects that will adversely affect his ability to conduct a defense, that there are no less intrusive treatments that will achieve substantially the same effect, and that forced medication is in the defendant's best medical interest were supported by clear and convincing evidence. Accordingly, we conclude that the trial court correctly determined that the defendant constitutionally may be subject to forcible medication to restore his competency to stand trial under the standard set forth in Sell. The decision of the trial court is affirmed. In this opinion the other justices concurred. This court concluded in State v. Garcia, 233 Conn. 44, 658 A.2d 947 (1995), overruled in part on other grounds sub silentio by Sell v. United States, 539 U.S. 166, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003), that an order of forcible medication is an appealable final judgment under the second prong of State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983). See State v. Garcia, supra, at 66, 658 A.2d 947 (under Curcio, " '[f]or an interlocutory order to be an appealable final judgment it must threaten the preservation of a right that the defendant already holds,' " and defendant had vested "right to be free from involuntary medication"); see also Sell v. United States, supra, at 177, 123 S.Ct. 2174 (order of forcible medication is "appealable 'collateral order' " under federal law). The defendant's appeal from the trial court's decision was transferred to this court pursuant to General Statutes § 51-199(c) and Practice Book § 65-1. Thereafter, this court granted the state's motion to expedite the appeal. Hereinafter, all references in this opinion to the trial court are to the court, O'Keefe, J. Cotterell testified that, if the trial court did not order the administration of medication, Whiting would continue its current course of treatment for the defendant, which included interviewing him, and offering him classes and feedback about his condition. In addition to this testimony, at the September 14, 2015 hearing, the state entered into evidence Cotterell's written report in which he stated that the defendant "will not attain competency within the remainder of the period covered by the placement order absent administration of psychiatric medication for which he is unwilling or unable to provide consent...." Cotterell testified that orthostatic hypotension is a condition in which a person's blood pressure drops as the result of a change in body position, such as standing up. The drop in blood pressure can cause momentary confusion or weakness. See Sell v. United States, supra, 539 U.S. at 179, 123 S.Ct. 2174 ("the [federal] [c]onstitution permits the [g]overnment involuntarily to administer antipsychotic drugs to a mentally ill defendant facing serious criminal charges in order to render that defendant competent to stand trial, but only if the treatment is medically appropriate, is substantially unlikely to have side effects that may undermine the fairness of the trial, and, taking account of less intrusive alternatives, is necessary significantly to further important governmental trial-related interests"); see also id., at 181, 123 S.Ct. 2174 (to find that involuntary medication will significantly further state interests, court "must find that [the] administration of the drugs is substantially likely to render the defendant competent to stand trial" and "is substantially unlikely to have side effects that will interfere significantly with the defendant's ability to assist counsel in conducting a trial defense"); id. (to find that involuntary medication is necessary to further state interests, court "must find that any alternative, less intrusive treatments are unlikely to achieve substantially the same results"). We note that § 54-56d (k)(2), which was enacted before the United States Supreme Court decided Sell, also sets forth certain requirements that must be met before a defendant may be forcibly medicated. Section 54-56d (k)(2) provides in relevant part: "[T]he court may order the involuntary medication of the defendant if the court finds by clear and convincing evidence that: (A) To a reasonable degree of medical certainty, involuntary medication of the defendant will render the defendant competent to stand trial, (B) an adjudication of guilt or innocence cannot be had using less intrusive means, (C) the proposed treatment plan is narrowly tailored to minimize intrusion on the defendant's liberty and privacy interests, (D) the proposed drug regimen will not cause an unnecessary risk to the defendant's health, and (E) the seriousness of the alleged crime is such that the criminal law enforcement interest of the state in fairly and accurately determining the defendant's guilt or innocence overrides the defendant's interest in self-determination." The defendant in the present case makes no claim that § 54-56d (k)(2) imposes a higher burden on the state than the standard set forth in Sell. Accordingly, if we determine that the trial court correctly concluded that the state established the relevant Sell factors by clear and convincing evidence, the corresponding factors of § 54-56d (k)(2) necessarily will be satisfied. Several courts have considered a likelihood of 70 percent or greater to be a substantial likelihood for purposes of Sell. See United States v. Dillon, supra, 738 F.3d at 297 (73.3 percent likelihood of restoration to competency is substantial likelihood); United States v. Diaz, supra, 630 F.3d at 1332 (75 to 87 percent likelihood is substantial likelihood); United States v. Fazio, 599 F.3d 835, 840-41 (8th Cir.2010) (75 to 87 percent likelihood is substantial likelihood), cert. denied, 562 U.S. 1141, 131 S.Ct. 901, 178 L.Ed.2d 759 (2011) ; United States v. Green, 532 F.3d 538, 553 (6th Cir.2008) (more than 90 percent likelihood is substantial likelihood), cert. denied, 556 U.S. 1270, 129 S.Ct. 2735, 174 L.Ed.2d 250 (2009) ; United States v. Bradley, 417 F.3d 1107, 1115 (10th Cir.2005) (more than 80 percent likelihood is substantial likelihood); United States v. Gomes, 387 F.3d 157, 161-62 (2d Cir.2004) (70 percent likelihood is substantial likelihood), cert. denied, 543 U.S. 1128, 125 S.Ct. 1094, 160 L.Ed.2d 1081 (2005). We note, however, that these courts did not conclude that a 70 percent likelihood is the minimum probability that could constitute a substantial likelihood. But see State v. Barzee, supra, 177 P.3d at 61 ("[T]he substantially likely standard requires that the chance for restoration to competency be great. To the extent that such a likelihood can be quantified, it should reflect a probability of more than [70] percent."). The court in Harper considered the issue of whether forcible medication for the purposes of reducing a prison inmate's dangerousness to himself or others was consistent with constitutional due process principles. Sell v. United States, supra, 539 U.S. at 178, 123 S.Ct. 2174 ; see Washington v. Harper, supra, 494 U.S. at 213-14, 221-23, 110 S.Ct. 1028. The court in Riggins considered the circumstances under which it might be constitutionally permissible to forcibly medicate a defendant for the purpose of rendering him competent to stand trial. Sell v. United States, supra, 539 U.S. at 178-79, 123 S.Ct. 2174 ; see Riggins v. Nevada, supra, 504 U.S. at 134-38, 112 S.Ct. 1810. In United States v. Weston, 255 F.3d 873 (D.C.Cir.), cert. denied, 534 U.S. 1067, 122 S.Ct. 670, 151 L.Ed.2d 583 (2001), the District of Columbia Circuit Court of Appeals affirmed the District Court's judgment; id., at 887 ; concluding that the District Court's determination that restoration to competency was likely was supported by evidence demonstrating that the proposed antipsychotic medication mitigated symptoms for at least 70 percent of patients. Id., at 883. Like most of the courts that have concluded that a 70 percent chance of restoration to competency constitutes a substantial likelihood under Sell; see footnote 8 of this opinion; the District of Columbia Circuit Court of Appeals did not hold in Weston that this rate of success was the minimum rate that would satisfy the requirements of Harper and Riggins. Rather, it is implicit in Weston that Harper and Riggins are satisfied if restoration to competency is likely. The defendant in the present case does not dispute that, for purposes of Sell, the state has an important interest in bringing to trial defendants who, like him, have been charged with murder. See, e.g., United States v. Watson, supra, 793 F.3d at 425 ("It is critical that in evaluating the government's case for forcible medication under Sell, courts engage in the proper inquiry: not whether a proposed treatment plan is likely to work in general, but whether it is likely to work as applied to a particular defendant. Permitting the government to meet its burden through generalized evidence alone would effectively allow it to prevail in every case involving the same condition or course of treatment.... Because we are obligated to ensure that a given case is sufficiently exceptional to warrant the extraordinary measure of forcible medication, we cannot permit such deference...." [Citation omitted; internal quotation marks omitted.] ); United States v. Evans, supra, 404 F.3d at 241 ("Instead of analyzing [the defendant] as an individual, the report simply sets up syllogisms to explain its conclusions: [1] atypical antipsychotic medications are generally effective, produce few side effects, and are medically appropriate, [2] [the defendant] will be given atypical antipsychotic medications, [3] therefore, atypical anti-psychotic medication will be effective, produce few side effects, and be medically appropriate for [the defendant]. To hold that this type of analysis satisfies Sell 's second and fourth factors would be to find the government necessarily meets its burden in every case it wishes to use atypical antipsychotic medication."). Although the defendant has cited a number of articles and professional manuals that, according to him, support this claim, these materials were not presented as evidence in the proceedings before the trial court, and this court is not a fact-finding tribunal. We note that this prong of Sell requires the courts to focus exclusively on side effects of the medication that will affect the fairness of the trial. Whether the medication will have side effects that negatively affect the defendant's health is considered under the prong requiring courts to determine whether forced medication is in the patient's best medical interest. See Sell v. United States, supra, 539 U.S. at 181, 123 S.Ct. 2174 (in determining whether forced medication is in defendant's best medical interest, courts must take into account that "[d]ifferent kinds of antipsychotic drugs may produce different side effects and enjoy different levels of success"). In the present case, the defendant contends that the side effects of the medications that Cotterell recommended "may be permanent or life threatening." Because the defendant has referred to no evidence in the present case that would support such a contention, we decline to address this claim.

12489681

Jesse PAULETTE v. Ryan PAULETTE

Paulette v. Paulette

2017-05-18

No. 38577

1132

1132

160 A.3d 1132

160

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.016011+00:00

Fastcase

Jesse PAULETTE v. Ryan PAULETTE

Jesse PAULETTE v. Ryan PAULETTE No. 38577 Appellate Court of Connecticut. Submitted on briefs May 18, 2017 Officially released June 13, 2017

28

179

Per Curiam. The judgment is affirmed.

12487642

STATE of Connecticut v. John PANEK.

State v. Panek

2016-07-05

No. 36820.

924

937

145 A.3d 924

145

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.000696+00:00

Fastcase

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

STATE of Connecticut v. John PANEK.

STATE of Connecticut v. John PANEK. No. 36820. Appellate Court of Connecticut. Argued Oct. 22, 2015. Decided July 5, 2016. Denise B. Smoker, senior assistant state's attorney, with whom, on the brief, were David I. Cohen, state's attorney, and Nichol Peco, assistant state's attorney, for the appellant (state). William B. Westcott, Westport, for the appellee (defendant). DiPENTIMA, C.J., and SHELDON and PRESCOTT, Js.

6777

41340

SHELDON, J. This case concerns the ultimate facts that the state must plead and prove to convict a defendant of voyeurism under General Statutes § 53a-189a, Connecticut's video voyeurism statute. Section 53a-189a was enacted by the legislature in 1999, and it now provides in relevant part: "(a) A person is guilty of voyeurism when, (1) with malice, such person knowingly photographs, films, videotapes or otherwise records the image of another person (A) without the knowledge and consent of such other person, (B) while such other person is not in plain view, and (C) under circumstances where such other person has a reasonable expectation of privacy, or (2) with intent to arouse or satisfy the sexual desire of such person or any other person, such person knowingly photographs, films, videotapes or otherwise records the image of another person (A) without the knowledge and consent of such other person, (B) while such other person is not in plain view, and (C) under circumstances where such other person has a reasonable expectation of privacy...." So framed, the statute has two parallel subdivisions, each of which establishes a separate basis for proving a defendant guilty of voyeurism thereunder. Each subdivision sets forth the five common conduct, circumstances and mental state elements of that offense plus one additional, aggravating mental state element that distinguishes the two subdivisions from one another. The first common element, which describes the conduct a defendant must engage in to commit voyeurism under either subdivision, is (1) that he photograph, film, videotape or otherwise record the image of another person. The second, third and fourth common elements, which describe the circumstances under which the defendant must engage in the proscribed conduct in order to commit either form of that offense, are that he do so (2) without the other person's knowledge and consent, (3) while the other person is not in plain view, and (4) under circumstances where the other person has a reasonable expectation of privacy. The fifth common element, which describes the mental state with which the defendant must engage in the proscribed conduct under the statutorily prescribed circumstances in order to commit voyeurism, is that he do so (5) knowingly. Finally, the sixth essential element of voyeurism, an aggravating mental state that is different under each subsection of the statute, is (6) that the defendant commit the five common elements of voyeurism either with malice, in violation of subdivision (1) of subsection (a) of the statute, or with intent to arouse or satisfy the sexual desire of himself or of another person, in violation of subdivision (2) of subsection (a) of the statute. The question presented on this appeal is whether a defendant can be prosecuted for and convicted of voyeurism based upon allegations and proof that he surreptitiously recorded the image of another person while he and she were engaged in consensual sexual activity with one another in a private place. This question comes before us on the state's appeal from the dismissal of three consolidated informations charging the defendant, John Panek, with violating § 53a-189a (a)(1) in that manner against three different women. The informations were dismissed on the ground that the defendant's recording his own sexual activity with another person cannot establish the third essential element of voyeurism with respect to that person, to wit: that he recorded the other person's image when she was "not in plain view...." Interpreting the phrase "not in plain view," as used in the statute, to mean "not in plain view of the defendant, " the trial court concluded that the facts alleged by the state did not tend to establish the third essential element as to any of the complainants because each was allegedly in the defendant's immediate physical presence, and thus in his plain view, when he recorded her image. (Emphasis added.) The state claims that the trial court erred in so interpreting the statute, and thus in dismissing the three informations, because the meaning of its "not in plain view" element is not plain and unambiguous on the face of the statute, as the trial court ruled. It contends, to the contrary, that if the statute is properly construed in light of its legislative history, the disputed element must be understood to require only proof, as here alleged, that the complainants were "not in plain view of the public " when the defendant recorded their images. The defendant disagrees, and so do we. We conclude that the judgment of the trial court must be affirmed. This case arises against the following factual and procedural background. On or about July 30, 2011, a woman with whom the defendant had recently been involved in an intimate relationship reported to officers from the Wilton Police Department that approximately three weeks earlier she had caught the defendant making a recording with his cell phone of a private sexual encounter between them in the bedroom of her New York City apartment. When she objected to his conduct in so doing, which she had not previously known of or consented to, he complied at once with her demand that he delete the recording after telling her that it was the first time he had made such a recording of them. Twelve days later, however, having decided to end her relationship with the defendant and remembering that he had a computer with a camera in it facing the bed in his home in Wilton, where he and she had previously engaged in sexual activity, she traveled to Wilton to break up with him and confront him as to whether he had other recordings of their private sexual encounters on his computer. When he admitted that he did, insisting that he had used them only for his own personal sexual gratification, she demanded that he pull them all up so he and she could delete them together. In response to her demand, the defendant pulled up a file marked with her initials, but quickly deleted it before she could see what was in it or where in his computer files it had been stored. Over her protest that he had not complied with her demand, he stated that he had not wanted to show her where the recordings were stored because he also had recordings of other women in that location, all assertedly consented to, which he did not want her to see. Armed with this information, the Wilton police secured a warrant to search the defendant's Wilton home, including all of his computer equipment and file storage devices, for similar recordings. Thereafter, although the defendant initially had told the officers who searched his residence that he had no other unconsented-to recordings of the complainant or others in his possession, he recontacted them to tell them the names of two other women whose images he had secretly photographed, without their knowledge and consent, when they were undressed in his presence. On the basis of the foregoing information, which was subsequently set forth in an arrest warrant affidavit, the defendant was arrested and charged, in separate informations, with one count of voyeurism as to each of the three women under § 53a-189a. To test the legal sufficiency of the state's allegations to charge him with voyeurism, the defendant moved to dismiss the three informations, without procedural objection by the state, under Practice Book § 41-8(2). In support of his motion to dismiss, the defendant argued that if the state's allegations were those set forth in his arrest warrant affidavit, as he and the state had stipulated for the purpose of the motion, then the state had failed to charge him with an offense because it had not alleged that he recorded the image of any of the complainants while she was "not in plain view." Contending that the perspective from which it must be determined if a complainant is "not in plain view" at the time her image is being recorded is that of the defendant, as the alleged voyeur, the defendant argued that "[i]t defies the plain requirement of the language of sub [paragraph] (B) [of the statute] for the state to claim it can prove a complainant is not in plain view of an accused in any case where that complainant has chosen to remove her clothes and engage in sexual activity with the accused. Surely, under such circumstances one could not be any more in the plain view of another." (Emphasis omitted.) The state did not disagree with the defendant that any person who disrobes in his presence and engages in sexual activity with him puts herself in his plain view. It argued, however, that the "not in plain view" element of voyeurism should not be evaluated from the defendant's perspective, but instead from the perspective of the camera or other device he used to record the complainant's image or, in the alternative, from the perspective of the general public. The first of the state's alternative proposals for interpreting the disputed element was argued as follows in its memorandum in opposition to the motion to dismiss: "What the court should be focused on is where the camera/computer/phone is placed, not where the defendant is. To the victim it makes no difference. She had no knowledge of the recording device [and] therefore she was not in plain view to it." The state cited no language from the statute in support of this argument. The state's second proposal for interpreting the disputed element, which it advanced for the first time at oral argument on the motion, was that the phrase "not in plain view" should be held to mean "not in public view." Such an interpretation would be appropriate, the state argued, because it would afford the protection of the statute to all persons whose images are surreptitiously recorded by others, without their knowledge and consent, unless at the time such recordings are being made, they are knowingly exposing those parts or aspects of themselves that are being so recorded to public view. This part of the state's argument was also unsupported by any language from the statute. On April 21, 2014, the trial court issued a memorandum of decision granting the motion to dismiss. It ruled that the "not in plain view" element of voyeurism, as set forth in § 53a-189a (a)(1)(B), plainly and unambiguously requires the state to plead and prove that when the defendant recorded the image of a complainant without her knowledge and consent, he did so while she was not in the defendant's plain view. In reaching this result, the court first examined the text of the statute, as required by General Statutes § 1-2z, to determine if the legislature's intent as to the meaning of the disputed element could be discerned, plainly and unambiguously, therefrom. It concluded, on the basis of that examination, that the words "not in plain view" do indeed have a plain and unambiguous meaning as to the perspective from which it must be determined if the complainant is "not in plain view" when the defendant records her image. That meaning, it determined, is fully consistent with the defendant's proposed interpretation, namely "not in plain view of the defendant, " but not at all consistent with either of the alternative interpretations proposed by the state. (Emphasis added.) "Looking for the straightforward meaning of the phrase 'plain view,' " the court declared, "is not a difficult task." The court stated further: "The word 'plain,' when used as an adjective, has several meanings. Those most applicable here are: 'clearly evident,' and 'open and without pretense.' Webster's II New College Dictionary (2001) p. 841. It is also defined as 'free of duplicity or subtlety.' Webster's Ninth New Collegiate Dictionary (1990) p. 898. In a word, it means 'obvious.' Merriam-Webster's Dictionary, available at http://www.merriam-webster.com. " 'View,' when used as a noun, means 'the act of seeing or examining.' Webster's Ninth New Collegiate Dictionary, supra, p. 1314. It also means 'the field of vision.' Webster's II New College Dictionary, supra, p. 1231. Both of these possible meanings suggest that the act of viewing is being performed by a person. "Utilizing these definitions, the term 'plain view' means that which can be readily observed from a certain vantage point without the benefit of any special effort or aid being utilized to view an object. The term suggests the absence of any trickery, artifice, or device being used in the viewing process such that the view in question is reasonably evident to a person being photographed. This understanding of that phrase is certainly compatible with its more common use in the context of search and seizure cases in criminal actions. See, e.g., Horton v. California, 496 U.S. 128, 134, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990)." "As employed in the statute," the court continued, "the phrase is used in the larger clause, 'while such other person is not in plain view.' It is clear that the other person here is the person being photographed or depicted in the video. This is not disputed by the parties. Where the state and the defendant disagree, however, is whose view is being described in the phrase 'plain view.' " Upon so framing the issue before it, the court turned to consider the state's two alternative proposals for interpreting the disputed element. As for the state's initial proposal, that the phrase "not in plain view" should be interpreted to mean not in the view of the camera, the court first noted that the statute makes no reference to cameras or other recording devices. This, it concluded, is appropriate because "the word 'view' typically means the view of a person," not the view to or from a recording device. The court found support for this conclusion in the legislature's use of the phrase "not in plain view" in the disorderly conduct statute, General Statutes § 53a-182 (a)(7), in which in 2001, just two years after enacting the video voyeurism statute, it made "Peeping Tom" behavior punishable as a form of disorderly conduct. The conduct prohibited by § 53a-182 (a)(7) involves observing another person in other than a casual or a cursory manner, while committing a simple trespass, in the following circumstances: without the other person's knowledge and consent, while the other person is inside a dwelling and not in plain view, and where the other person has a reasonable expectation of privacy. The court found that the phrase "not in plain view," as used in that statute to describe a circumstance under which a defendant must have engaged in a particular type of surreptitious observational behavior in order to commit disorderly conduct, "clearly pertains to the view of a person...." It pertains, more particularly, to the view of the defendant as the person alleged to have engaged in such surreptitious observational behavior. The court found that this usage is "plainly inconsistent" with the state's proposed interpretation of the same language in this case "that the 'view' in question is that of a camera or recording device...." "When," the court concluded, "the legislature has used identical language to address very similar concerns and at virtually the same point in time, this court is reluctant to accord very different meanings to identical phrases." As for the state's second proposal, that the phrase "not in plain view" might alternatively be interpreted to mean "not in public view," the court rejected that proposal based upon the common-law principle that "[n]o part of a legislative enactment is to be treated as insignificant or unnecessary, and there is a presumption of purpose behind every sentence, clause or phrase [such that] no word in a statute is to be treated as superfluous." It found, more specifically, that the state's fallback proposal for interpreting the disputed element would render superfluous the fourth essential element of voyeurism, which, to reiterate, requires proof that the defendant recorded the complainant's image "under circumstances where [she] ha[d] a reasonable expectation of privacy." Impliedly construing the term "reasonable expectation of privacy" in accordance with its settled meaning under controlling federal case law enforcing the fourth and fourteenth amendment right against unreasonable searches and seizures, the court concluded that under the statute, as under such federal case law, a person has no privacy interest in, and thus no reasonable expectation of privacy as to, any aspect of her person, property or activities which she knowingly exposes to public view. See Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). On that basis, the court concluded that the "not in plain view" element of voyeurism cannot appropriately be interpreted to require proof that the defendant recorded the complainant's image while she was "not in public view," for if it were so interpreted, both it and the "reasonable expectation of privacy" element of that offense would improperly be deemed to have the same core meaning, to wit: that the defendant recorded the complainant's image while she was "not in public view." The court thus agreed with the defendant that the "not in plain view" element of voyeurism cannot mean that the complainant was "not in public view" when the defendant recorded her image, but instead must mean that she was "not in plain view of the defendant " at that time. (Emphasis added.) Finally, the court found support for its conclusion that the perspective from which the "not in plain view" element of the statute must be evaluated is that of the defendant in the name and nature of the conduct which the statute seeks to criminalize. Dictionaries define "voyeurism," the court noted, as " '[g]ratification derived from observing the sexual organs or acts of others, usu[ally] secretly.' " Voyeurism thus inherently involves the surreptitious invasion of another person's privacy by secretly observing her. By requiring proof that the complainant was not in the defendant's plain view at the time he recorded her image, the video voyeurism statute restricts the scope of liability for voyeurism to conduct that is fairly describable as voyeuristic because it involves or results from secretly, rather than openly and obviously, recording the image of the complainant under circumstances constituting an invasion of her privacy. Applying the foregoing definition of "plain view" to the allegations set forth in the defendant's arrest warrant affidavit, and thus by stipulation in the three challenged informations, the court concluded that the state had "fail [ed] to state any factual basis on which . the crimes alleged . occurred while the subjects of the depictions were not in plain view of the defendant...." The court thus dismissed the three informations on the ground of failure by the state to charge the defendant with an offense. This appeal followed. I The state has raised a single claim of error on this appeal. It claims, expressly, that "the trial court erred in construing the term 'not in plain view' in . § 53a-189a to mean not in the defendant's plain view and in granting his motion to dismiss because the victims were in his sight when he surreptitiously photographed and/or videotaped them having sex with him." "The requirements of the statute present a question of statutory construction over which we exercise plenary review.... When construing a statute, our fundamental objective is to ascertain and give effect to the apparent intent of the legislature.... [General Statutes] § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.... When a statute is not plain and unambiguous, we also look for interpretative guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.... 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.... "[W]hen the statute being construed is a criminal statute, it must be construed strictly against the state and in favor of the accused.... [C]riminal statutes [thus] are not to be read more broadly than their language plainly requires and ambiguities are ordinarily to be resolved in favor of the defendant.... Rather, penal statutes are to be construed strictly and not extended by implication to create liability which no language of the act purports to create.... Further, if, after interpreting a penal provision, there remains any ambiguity regarding the legislature's intent, the rule of lenity applies. It is a fundamental tenet of our law to resolve doubts in the enforcement of a [P]enal [C]ode against the imposition of a harsher punishment." (Citations omitted; internal quotation marks omitted.) State v. Drupals, 306 Conn. 149, 159-160, 49 A.3d 962 (2012). The state argues on appeal that that phrase "not in plain view," as used in the statute, is ambiguous, and thus that the statute must be construed in light of its legislative history, the circumstances surrounding its enactment, the legislative policy it was designed to implement and other accepted tools of statutory construction. Although the state acknowledges that one reasonable interpretation of the disputed element is "not in plain view of the defendant," as the trial court ruled, it insists that another reasonable interpretation of the element is one of the two it advanced in opposition to the motion to dismiss, namely "not in public view." The state contends that the latter interpretation of the disputed element is supported by the comments of legislators appearing in the statute's legislative history. The defendant disagrees, arguing first, as he did before the trial court, that the phrase "not in plain view" need not be construed on the basis of extratextual evidence because its plain and unambiguous meaning, as the trial court properly determined, is "not in plain view of the defendant." This conclusion, he argues, is well supported both by the language of the statute and by the statute's relationship to other statutes, particularly § 53a-182 (a)(7), where, as the trial court noted, identical language is used in a similar context to describe an essential element of a related criminal offense. The defendant further contends that even if the language of the disputed element is ambiguous on its face, and must therefore be construed, the trial court's interpretation of that element finds substantial support in the statute's legislative history. Even, then, if there were any ambiguity as to the meaning of that element after the statute is construed, which he denies, any such ambiguity would have to be resolved in his favor either by ruling the statute unconstitutionally void for vagueness because of its lack of clear meaning or by construing it in his favor under the rule of lenity, which in either case would require that the trial court's judgment be affirmed. We agree with the defendant that the trial court properly interpreted the disputed element in light of the plain and unambiguous language of the statute, and thus conclude that its judgment must be affirmed. Looking first, as we must, at the language of the statute, we note initially that the phrase "not in plain view" is not defined therein or in any other provision of the General Statutes. Therefore, in the absence of controlling case law construing that phrase in this or any related statutory context, we are directed by General Statutes § 1-1(a) to construe it "according to the commonly approved usage of the language," unless it has "acquired a peculiar and appropriate meaning in the law [and therefore] shall be construed and understood accordingly." In standard English usage, as the trial court noted, the word "plain," when used as an adjective, has several meanings. We find that the most applicable meanings here are: "free of impediments to view" and "unobstructed." Merriam-Webster's Collegiate Dictionary (11th Ed.2003) (available at http://www.merriam-webster.com). The word "view," when used as a noun, means "the extent or range of vision" or "the act of seeing or examining." Id. Both of these possible meanings, as the trial court observed, "suggest that the act of viewing is being performed by a person." Combining these definitions together, and applying them to the view of one person by another, the person being observed by another person is "in plain view" of the other person when she is so situated that the other person can readily or easily view her from his vantage point, without impediments or obstructions to his view. The trial court reached a similar conclusion, determining that " 'plain view' means that which can be readily observed from a certain vantage point without the benefit of any special effort or aid being utilized to view an object." It added, however, that "[t]he term suggests the absence of any trickery, artifice, or device being used in the viewing process such that the view in question is reasonably evident to a person being photographed." The court declared that this latter aspect of "plain view"-that "the view of the defendant . be open and obvious to [the complainant]" at the time he records her image-is "an inherent part of 'plain view' " under the video voyeurism statute. It based this conclusion not only on selected dictionary definitions of the words "plain" and "view," as previously noted, but on what it described as the compatibility of "[t]his understanding of the phrase ['in plain view'] . with its more common use in the context of search and seizure cases in criminal actions," as well as its consistency with the statute's use of the word "voyeurism" to describe the conduct made punishable thereunder. The state contends in its brief that the latter conclusion placed an unnecessary judicial gloss on the "not in plain view" element of voyeurism, demonstrating that the statute is ambiguous on its face, and thus in need of construction. Although we have doubts as to whether this aspect of the trial court's interpretation of the disputed element is compelled by the plain language of the statute, we agree with the state that that issue need not have been addressed by the trial court and need not be resolved by this court to decide the narrower question raised by the defendant's motion and presented for our decision on appeal. That question, to reiterate, is from whose perspective must it be determined if the complainant in a voyeurism prosecution was "not in plain view" at the time the defendant recorded her image without her knowledge and consent? Refocusing on that narrower question, we must first agree with the state that the text of the statute does not answer the question directly. That is, although the statute's use of the word "view" connotes the view of a person, it does not state whether the person whose view of the complainant must not have been a plain view was the defendant himself or some other person, such as a member of the general public. Its silence on that point, however, does not make this aspect of the disputed element ambiguous, for several reasons. First and foremost, as the trial court ruled, the disputed element cannot be interpreted to mean "not in public view," as the state has argued, because the parallel, "reasonable expectation of privacy" element of the statute imposes that very same restriction on the scope of liability thereunder. As the trial court implicitly acknowledged, the term "reasonable expectation of privacy" has acquired a settled meaning under our constitutional law of search and seizure, which the legislature logically had in mind when it used that term to describe the fourth essential element of voyeurism. For over three decades before the statute was enacted, the United States Supreme Court had held that a criminal defendant can challenge, as an unreasonable search or seizure in alleged violation of his rights under the fourth and fourteenth amendments, any intrusion by agents of the government as to an aspect of his person, his property or his activities as to which, at the time of such intrusion, he had an actual expectation of privacy that society is prepared to regard as reasonable. Katz v. United States, supra, 389 U.S. at 361, 88 S.Ct. 507. An actual expectation of privacy is subjective; a defendant has such an expectation of privacy as to those aspects of his person, property and activities which he actually believes to be free from governmental intrusion. See id. A reasonable expectation of privacy, on the other hand, is objective; its existence in particular circumstances depends upon the manner in which the person has attempted, in those circumstances, to keep private those aspects of his person, property or activities which he claims to have been intruded upon by the government. See id. Whereas a person is typically held to have a reasonable expectation of privacy as to those aspects of his person, property or activities which he has made reasonable efforts to keep private, he is universally held not to have no reasonable expectation of privacy as to those aspects of his person, property or activities which he knowingly exposes to public view. Id. Therefore, since an essential element of the state's proof of the "reasonable expectation of privacy" element of voyeurism is that at the time the complainant's image was recorded, she was not knowingly exposing those parts or aspects of herself of which an image was being recorded to public view, that same meaning cannot appropriately be attributed to the parallel, "not in plain view" element of the statute. Here, then, we agree with the trial court that because the video voyeurism statute concerns conduct involving two and only two persons, the complainant whose image was allegedly recorded without her knowledge and consent and the defendant who allegedly recorded that image of her when she was not in plain view, it must logically be the defendant as to whom the complainant was not in plain view when her image was recorded, for she will always have been in plain view of herself. Secondly, the foregoing interpretation of the disputed element is consistent with the settled meaning of the phrase "in plain view" under controlling federal case law enforcing the plain view exception to the warrant requirement of the fourth and fourteenth amendments. Under such case law, a state or federal officer is authorized to make a warrantless seizure of any item he finds "in plain view" while lawfully performing his duties if it is immediately apparent to him, upon viewing the item without touching or manipulating it except as authorized by law, that it is lawfully subject to seizure. See Arizona v. Hicks, 480 U.S. 321, 323-27, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987). An item is lawfully subject to seizure if, for example, it constitutes the fruits, evidence or instrumentality of a crime; Warden v. Hayden, 387 U.S. 294, 310, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967) ; it is contraband or it poses a danger to the public; Cady v. Dombrowski, 413 U.S. 433, 441-43, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973) ; or it is subject to seizure under the authority of a statute. See Michigan v. Tyler, 436 U.S. 499, 509-10, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978). It is immediately apparent to an officer that an item is lawfully subject to seizure if the officer has probable cause to believe that it is such an item. Horton v. California, supra, 496 U.S. at 136, 110 S.Ct. 2301. An officer is lawfully performing his duties when he comes upon an item lawfully subject to seizure if he has the right to be where he is and to be doing what he is doing at that time, under the authority of a warrant, an exception to the warrant requirement or otherwise. Coolidge v. New Hampshire, 403 U.S. 443, 465-66, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Finally, and of direct relevance here, an item is "in plain view" of the officer when he comes upon it if it is so situated in relation to him as to be readily observable by him, as he finds it, without the aid of advanced technological enhancements to vision that are not in general public use. Compare State v. Dickerson, 313 N.W.2d 526, 532 (Iowa 1981) (use of binoculars to observe, or standard photographic equipment to preserve a photographic record of, items come upon by officers while lawfully performing their duties held justified under the plain view exception to the warrant requirement of the fourth and fourteenth amendments) with United States v. Epperson, 454 F.2d 769, 770 (4th Cir.) (use of magnetometer to detect metal in or below the clothing of a person in plain view is not justified under the plain view exception because it constitutes a separate invasion of the searchee's privacy, for which a warrant is required), cert. denied, 406 U.S. 947, 92 S.Ct. 2050, 32 L.Ed.2d 334 (1972) ; see also Kyllo v. United States, 533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001). The rationale for imposing this limitation on the power of officers to make warrantless seizures of items they find in plain view while lawfully performing their duties is to protect the privacy interests of persons who, by exposing themselves or their property to observation by others in what they reasonably believe to be a limited manner, cannot reasonably be found to have surrendered their right not to have such items viewed more extensively or intensively than they reasonably expected when so exposing them by the unexpected use of such uncommon vision-enhancing devices or equipment. Even with this adjustment in meaning, however, it is clear that the perspective from which it must be determined if an item was "in plain view" at the time the officer came upon it is that of the officer himself, who must have viewed it without moving or manipulating it or using uncommon vision-enhancing equipment to examine it before seizing it. Thirdly, we find that this interpretation of the statute is confirmed, by necessary implication, by the nature of the conduct that is made punishable thereunder. Voyeurism, as the trial court aptly described it in light of its standard dictionary definition, is the practice of obtaining sexual gratification by looking at sexual objects or acts, especially secretively. Voyeuristic behavior thus inherently involves the surreptitious invasion of another person's privacy, usually by secretly viewing the other person while she is engaged in sexual or other intimate behavior. Although the term "voyeurism" is not specially defined in the video voyeurism statute apart from the listing of the elements of the offense so denominated, its use in the statute gives meaning to those elements as the ultimate facts that must be proved to obtain a conviction for that offense. Consistent with its name, the offense of voyeurism requires proof of conduct that involves or constitutes an aggravated form of voyeurism. The conduct proscribed by the statute is voyeuristic because it involves not only the secret recording of the complainant's image without her knowledge and consent, but the making of that recording under circumstances involving or constituting an invasion of her privacy by recording images of parts or aspects of her person which she has made reasonable efforts not to expose to public view. Such voyeuristic conduct is aggravated both because it preserves the image so recorded in storable, publishable and/or transferable form, exposing the complainant to possible future victimization by repeated viewings of her recorded image by the defendant and others, and because the defendant made that recording either with malice, in violation of subsection (a)(1) of § 53a-189a, or for the purpose of arousing or gratifying the defendant's or another person's sexual desire, in violation of subsection (a)(2) of § 53a-189a. Although only subsection (a)(2) expressly prohibits conduct that falls within the classic definition of voyeurism, because it alone requires proof that the defendant engaged in the prohibited conduct for the purpose of arousing his or another person's sexual desire, both subdivisions (1) and (2) criminalize behavior which, in light of the circumstances under which it must be engaged in, involves or constitutes the surreptitious invasion of the complainant's privacy. Understood in this light, the "not in plain view" element of voyeurism must logically be construed, like the other two circumstances elements of that offense, as a requirement designed to restrict the scope of liability under the statute to inherently voyeuristic behavior involving or constituting the surreptitious invasion of the complainant's privacy. That interpretation makes sense only if the perspective from which the plain view of the complainant must be evaluated is that of the defendant, as the alleged voyeur. Although, to reiterate, we need not here determine if liability for voyeurism can ever be established without proving that the defendant's opportunity to view the complainant, while surreptitiously recording her image, was reasonably evident to her, establishing that the complainant was not in the defendant's plain view when he recorded her image tends to confirm that his act of recording her image, without her knowledge and consent, was performed secretly, and thus voyeuristically. If, by contrast, the defendant recorded the complainant's image while she was in his plain view, then she would have been far more likely to see him as he did so, making his act of viewing her while he recorded her image nonsecretive and nonvoyeuristic, even though his unconsented-to act of recording of what he then viewed of her was not. Fourth and finally, we agree with the defendant that his interpretation of the "not in plain view" element of the statute is supported by the use of the phrase "not in plain view" in the "Peeping Tom" subsection of the disorderly conduct statute. By using such language to define an essential circumstances element of another statute of comparable vintage that prohibits a similar kind of voyeuristic behavior, the legislature clearly signaled its intention that under both statutes, the perspective from which it must be determined if the complainant was "in plain view" at the time the defendant engaged in such behavior toward her is that of the defendant, as the alleged voyeur. In sum, we agree with the trial court's determination that, under the plain and unambiguous language of the video voyeurism statute, the perspective from which the "not in plain view" element of voyeurism must be evaluated is that of the defendant, not that of the general public. II In light of the foregoing analysis, we have no need to consider the legislative history of the statute, much less to determine if, in light of that history, there might be other reasonable interpretations of the legislature's intent as to the meaning of the "not in plain view" element that were not expressed in the plain and unambiguous language of the statute. For that same reason, we have no occasion to decide, even if evidence supporting such an alternative construction of the disputed element could be found, whether the existence of such a construction renders the statute void for vagueness, and thus unenforceable, or requires the application of the rule of lenity. The words of the statute control, and that ends our inquiry. The judgment is affirmed. In this opinion the other judges concurred. Although the crime defined in the statute is denominated "voyeurism," the statute itself is known colloquially as the "video voyeurism statute." The state and the defendant further stipulated that the unconsented-to photographs of the other two complainants showed them in a state of undress when they were in the defendant's immediate physical presence. Although the state initially objected to the defendant's motion to dismiss under Practice Book § 41-9, on the ground that the defendant had been arrested on a warrant, it ultimately agreed to proceed with the defendant's motion and has not renewed its initial objection on appeal. Practice Book § 41-8 provides in relevant part: "The following defenses or objections, if capable of determination without a trial of the general issue, shall, if made prior to trial, be raised by a motion to dismiss the information . (2) Defects in the information including failure to charge an offense...."

12487639

STATE of Connecticut v. Michael EDMONDS.

State v. Edmonds

2016-09-13

No. 19389.

861

906

145 A.3d 861

145

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

2021-08-27T20:57:14.000696+00:00

Fastcase

STATE of Connecticut v. Michael EDMONDS.

STATE of Connecticut v. Michael EDMONDS. No. 19389. Supreme Court of Connecticut. Argued Sept. 10, 2015. Decided Sept. 13, 2016. Bradford Buchta, assistant public defender, with whom, on the brief, was Nicole Donzello, senior assistant public defender, for the appellant (defendant). Timothy J. Sugrue, assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Marc R. Durso, assistant state's attorney, for the appellee (state). ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, McDONALD, ESPINOSA and ROBINSON, Js.

25288

156463

McDONALD, J. The defendant, Michael Edmonds, appeals from the judgment of the Appellate Court affirming his conviction, following a conditional plea of nolo contendere, of one count of possession of narcotics with intent to sell in violation of General Statutes § 21a-277 (a), and one count of failure to appear in the first degree in violation of General Statutes § 53a-172. See State v. Edmonds, 151 Conn.App. 763, 765, 96 A.3d 607 (2014). On certification to this court, the defendant contends that the Appellate Court improperly concluded that: (1) the trial court, Rodriguez, J., in denying the defendant's motion to suppress narcotics evidence, correctly determined that the defendant was not seized until police officers performed a patdown search for weapons; and (2) the record was inadequate to review the defendant's claim that he was unreasonably seized, in violation of the federal and state constitutions, when two police cruisers simultaneously descended upon him from opposite directions in a small private parking lot behind a Subway restaurant and a uniformed officer verbally commanded him to stop. We agree with both of the defendant's claims and conclude that the evidence the defendant sought to suppress was seized in violation of the fourth amendment to the United States constitution and article first, § 7 and 9, of the constitution of Connecticut. We therefore reverse the judgment of the Appellate Court. Before setting forth the relevant facts and procedural history, we begin by observing that the standard of appellate review governing allegedly unconstitutional police searches and seizures differs from the standard that governs appellate review of other types of similarly fact intensive questions. It is well established that we must "undertake a more probing factual review" of allegedly improper seizures, so that we may come to "an independent legal determination of whether a reasonable person in the defendant's position would have believed that he was not free to leave." State v. Burroughs, 288 Conn. 836, 843, 844 n. 5, 955 A.2d 43 (2008). "A proper analysis of this question is necessarily fact intensive, requiring a careful examination of the entirety of the circumstances in order to determine whether the police engaged in a coercive display of authority...." Id., at 846, 955 A.2d 43. Although we must, of course, defer to the trial court's factual findings, "our usual deference . is qualified by the necessity for a scrupulous examination of the record to ascertain whether [each] finding is supported by substantial evidence...." (Citation omitted; internal quotation marks omitted.) Id., at 843, 955 A.2d 43. Furthermore, in reviewing the record, we are bound to consider not only the trial court's factual findings, but also the full testimony of the arresting officers; in particular, we must take account of any undisputed evidence that does not support the trial court's ruling in favor of the state but that the trial court did not expressly discredit. See State v. DeMarco, 311 Conn. 510, 520 and n. 4, 88 A.3d 491 (2014) ; id., at 543, 88 A.3d 491 (Palmer, J., dissenting). In the present case, the trial court's oral decision, as supplemented by the undisputed testimony of the arresting officers, reveals the following relevant facts. On the evening of Friday, January 28, 2011, Officers Elson Morales and Joseph Lawlor of the Bridgeport Police Department (department) were patrolling in the vicinity of Madison Avenue and Capitol Avenue. The officers had been assigned to patrol there because a large number of teenagers were expected to attend a basketball game at nearby Central High School and teenagers tended to congregate on Madison Avenue after such games, clogging traffic. The officers testified that this area of Bridgeport is plagued by a high rate of violent crime. Both officers conceded, however, that the department considers essentially the entire city of Bridgeport to be a high crime area. There was no testimony that the crime rate in the neighborhood of Madison Avenue and Capitol Avenue is any higher than in other areas of Bridgeport. At approximately 7 p.m., the two officers were driving northbound on Madison Avenue in a marked police cruiser when they stopped at a red light at the intersection of Madison and Capitol Avenues. As they waited for the light to change, they briefly observed a man, later identified as the defendant, who is black, standing alone in the parking lot at 944 Madison Avenue, behind a Subway sandwich restaurant located on the corner. Although it is not evidenced in the record, it may reasonably be assumed-and the state conceded at oral argument before this court-that the Subway restaurant would have been open for dinner at that hour. The officers offered three reasons why the defendant aroused their suspicions at that time. First, Morales testified that, at the time the officers observed the defendant, "[i]t was pre-dark, it was starting to get dark." He indicated that the defendant "was loitering in the rear in the shadows ." (Emphasis added.) The trial court does not appear to have credited Morales' testimony that, at 7 p.m. on January 28, 2011, in Bridgeport, it was just "starting to get dark." And for good reason. On that particular winter evening, the sun had set two hours earlier, at 5:04 p.m., and even the twilight had long since passed. Moreover, there was undisputed testimony that no lights illuminated the Subway parking lot at that time. Accordingly, the only reasonable inference is that anyone standing outside the Subway restaurant at dinnertime on that particular evening necessarily would have been standing in the "shadows." Second, both officers testified that the defendant aroused their suspicions because he was "loitering" in the Subway lot. In the police report they completed the evening of the incident, the officers wrote that "we observed a heavy set black male wearing a tan colored hooded sweatshirt loitering behind the Subway [s]andwich [s]hop...." In the section of the report entitled "Point of Illegal Entry/Means of Attack," the officers entered: "Loitering near Subway." During the suppression hearing, however, both officers acknowledged that, at the time they first observed the defendant and decided to question him, they had no reason to believe that he was in violation of Bridgeport's loitering ordinance. Bridgeport Municipal Code § 9.04.010 provides: "Any person who, without permission or legitimate purpose, loiters upon the property of another or upon city-owned property, and who upon command of any police officer or person in charge of city-owned property fails to quit such property, shall be punished as provided in Chapter 1.12 of this code." In this case, there were no signs indicating "no loitering" posted at that location, and the officers had no information that the defendant was on Subway's property without permission or legitimate purpose, nor that he had been commanded to leave by a police officer or city official. Indeed, the officers readily conceded that the defendant might have been a resident of one of the apartment units located above the Subway restaurant. In addition, the period during which the officers were stopped at the red light, and had an opportunity to observe the defendant and conclude that he might be loitering, lasted only a few seconds. During that brief period, and given the poor lighting conditions, the officers were unable to determine even the defendant's skin color. All they could see was a "silhouette and just a vague color of his jacket." Third, the officers testified that their suspicions were aroused because the Subway restaurant had been robbed multiple times in the past, including within the past year. There was undisputed testimony, however, that no incidents of any sort had been reported in the Bridgeport police logs for that Subway location during the preceding four months. Nor did the officers receive any calls with respect to that location on the date in question. In any event, after having observed nothing more than a nondescript individual standing outside a Subway restaurant for a few seconds at 7 p.m. on a Friday evening, the officers decided to interrupt their patrol of the high school traffic situation to question him. They testified that they intended to ask him why he was in the parking lot, and whether he lived in one of the apartment units above the Subway restaurant. There was no testimony suggesting that either Morales or Lawlor had any reason to believe that the defendant was armed or dangerous, nor that any sort of criminal activity was underway or recently had transpired at that location. Nevertheless, before stopping to talk to the defendant, they decided to radio their supervisor, Sergeant Ronald Mercado, for backup. Morales testified that "[w]e wanted to try to attempt to [identify] the party and we wanted [Mercado] to cover us." Later in the hearing, Morales reiterated that the two officers contacted Mercado because "we wanted cover." The small parking lot in which the defendant was standing formed an L shape around the rear of the rectangular Subway building. There were only two entrances/exits to the lot. The small end of the L exited onto Capitol Avenue, and the large end onto Madison Avenue. Otherwise, the lot was enclosed by the Subway building on the street corner side, and by various commercial buildings on the opposite side. The lot was private property. The defendant, who was standing in the middle of the lot, was the only person in the lot at the time of the incident. After Mercado reached the location to provide the requested "cover" for Morales and Lawlor, the three officers in two patrol cars entered the Subway lot from opposing directions and converged on the defendant simultaneously in the middle of the lot, near a staircase leading to the apartments located above the Subway shop. Morales and Lawlor entered the lot from the Capitol Avenue entrance, while Mercado entered through the Madison Avenue entrance. Both vehicles were marked police cruisers. All three officers were in uniform, and armed. The record does not reveal whether they activated the cruisers' light bars or sirens as they approached the defendant. The precise sequence of events from the time the officers entered the Subway lot until they frisked the defendant is less clear. In their signed police report, the officers provided the following account: "We . drove into the rear parking lot of [the] Subway [s]andwich [s]hop when the [defendant] turned away from us when he observed our patrol unit, Sergeant Mercado drove in from the Madison [Avenue] entrance and stopped the [defendant].... [The defendant] immediately stated 'I didn't rob nobody!' He kept moving his hands around in a nervous manner and yelling 'this is embarrassing!' while continuing to state his innocence." The officers' testimony at the suppression hearing, together with the trial court's subsequent factual findings, injected some ambiguity into three elements of the police report account of events: (1) whether Mercado entered the lot precisely at the same time as Morales and Lawlor; (2) the circumstances under which the defendant was stopped; and (3) the timing and nature of the defendant's nervous hand movements. First, with respect to the timing of the two cruisers entering the lot and approaching the defendant, Morales' testimony mirrored and expanded upon the account in the officers' police report: "As we entered from Capitol [Avenue] into the rear parking lot of Subway we observed the [defendant] still in the shadow of the parking lot. He immediately-when he saw our car, it's a marked unit, he immediately turned around and started walking away. That's-at the time when we went to go around the L shape of-toward Madison [Avenue] Sergeant Mercado entered in his marked unit and was able to stop the [defendant]." Morales later summarized this sequence of events by stating that the two cruisers "pulled in" at "about the same time" and arrived at the defendant's location in the middle of the lot at approximately the same time. Lawlor's testimony was consistent with that of Morales on this point. He testified that when he and Morales entered the lot from Capitol Avenue, the defendant immediately turned and started to walk away, and that Mercado entered the lot from Madison Avenue "shortly thereafter." The trial court found, however, that "[t]he two officers and . Mercado entered the parking lot at the same time and through the only two entrances into the eatery's parking lot.... As soon as the two officers arrived . the defendant started to immediately walk away from the officers...." (Emphasis added.) Because the police report, Morales, and Lawlor all indicated that Morales and Lawlor entered the lot from Capitol Avenue shortly before Mercado entered from Madison Avenue, and the record contains no evidence to the contrary, we must understand the court's finding that the two cruisers entered at the same time to mean that the two cruisers arrived at the lot at approximately the same time, and that, as the defendant began to walk away from the first cruiser, Mercado entered and the two simultaneously converged on his position in the middle of the lot. Second, with respect to when the defendant was stopped, Morales' testimony was again consistent with the police report. In response to direct questioning by the trial court to clarify the sequence of events, Morales indicated that Mercado made the first contact with the defendant as he attempted to walk away from the cruiser driven by Morales and Lawlor, and that Mercado stopped the defendant "[b]y verbally commanding him to stop." Morales indicated that Mercado also "might have been" the one who began to question the defendant after he was stopped, although Morales was unsure. Lawlor testified that it was Morales who "made contact with [the defendant] first," spoke to the defendant, and "handl[ed] more of the contact," while Lawlor himself observed the interaction. During that portion of the suppression hearing, however, Lawlor was not asked-and did not testify-about Mercado's role in the stopping and questioning of the defendant. Lawlor also did not testify as to how the defendant came to be stopped when he began to walk away from the first cruiser, and the trial court made no findings in this regard. Third, the record contains three accounts of the defendant's nervous hand movements. The police report states that, after Mercado stopped the defendant and he denied having robbed anyone, "[the defendant] kept moving his hands around in a nervous manner and yelling 'this is embarrassing!' while continuing to state his innocence." Morales offered a far more detailed account at the suppression hearing. He testified that, after the officers exited their cars and the defendant denied having robbed anyone, and as the three officers approached him on foot, the defendant moved his hands in a nervous manner while he stood facing the officers, and repeatedly stated that he felt embarrassed. These hand movements entailed "going on the side, behind him fixing his pants," and were accompanied by complaints about a bad back. Morales variously described these movements as "tussling with his pants"; "tussling with his belt buckle . the belt area of his pants"; and "fidgeting with his hands . moving his belt, his upper part of the pants...." Morales testified that when the officers then ordered the defendant to keep his hands where the officers could see them, the defendant refused to comply with those orders, which led the officers to pat him down for their safety. Lawlor, by contrast, testified without elaboration that the defendant moved his hands toward his waistband at the outset, as he turned to walk away from the approaching patrol car. The trial court found on this question that, "as the defendant started to immediately walk away from the officers, he was observed by . Morales and . Lawlor to engage in movements around his waistband as he walked. While the police exited their vehicles and approached the defendant, he spontaneously yelled out 'I didn't rob anyone' and he kept saying that he was embarrassed." Although there was no evidence in the record to support the court's finding that Morales witnessed suspicious hand motions at the outset, while the officers were still in their vehicle pulling into the lot, the court was free to credit Lawlor's testimony that he witnessed such motions at that time. The court made no findings with respect to Morales' testimony that the defendant later defied the officers' commands to keep his hands in plain view, after the officers had stopped him. In any event, it is clear that, soon after they entered the lot, exited their cruisers, and approached the defendant, the officers decided to pat the defendant down for their safety. Although they testified that they were concerned that he might have been carrying a weapon, the only fact they were able to articulate in support of that concern was that the defendant moved his hands near his waistband as he turned away from them. In fact, the officers did not find any weapons on the defendant when they frisked him. They did discover a bundle containing heroin, however, and arrested him. The defendant moved to suppress the narcotics evidence, contending that its discovery was the fruit of an illegal search and seizure, in violation of the state and federal constitutions. The trial court denied the defendant's motion and the defendant subsequently entered a plea of nolo contendere to the counts of possession of narcotics with intent to sell and failure to appear in the first degree, conditional on his right to appeal the denial of his motion to suppress pursuant to General Statutes § 54-94a. Consistent with the plea agreement, the court, Arnold, J., imposed a total effective sentence of ten years imprisonment, execution suspended after four years, and three years probation. The defendant appealed to the Appellate Court, arguing that he was seized when the police converged on him in the Subway parking lot or, at the very latest, when Mercado commanded him stop. State v. Edmonds, supra, 151 Conn.App. at 766, 96 A.3d 607. The defendant further argued that at neither of those times did the police possess a reasonable and articulable suspicion that he was involved in criminal activity, as required to justify a nonarrest seizure under Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). State v. Edmonds, supra, at 766, 96 A.3d 607. The Appellate Court rejected the defendant's claim that he was seized at the outset, when the officers converged on him in the Subway lot. Id., at 772-73, 96 A.3d 607. The court also concluded that (1) the defendant had not preserved his claim that Mercado's verbal command to stop constituted a seizure, and (2) the record was inadequate to review that claim under the test for the review of unpreserved constitutional claims that we established in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). State v. Edmonds, supra, at 769-71, 96 A.3d 607. Accordingly, the Appellate Court upheld the trial court's implicit finding that the defendant was not seized until Morales performed the patdown search. Id., at 773, 96 A.3d 607. Finally, the Appellate Court concluded that, at that time, the police had a reasonable and articulable suspicion sufficient to detain and frisk the defendant. Id., at 775, 96 A.3d 607. Accordingly, the court affirmed the judgment of the trial court. Id., at 776, 96 A.3d 607. We granted the defendant's petition for certification and this appeal followed. See footnote 1 of this opinion. Additional facts and procedural history will be set forth as necessary. In part I of this opinion, we consider whether the Appellate Court properly concluded that the defendant was not seized until the officers patted him down for weapons and that certain of his claims in that regard are unreviewable. In part II, we consider whether, at the time of the defendant's seizure, the police officers possessed a reasonable and articulable suspicion of criminal activity, whether the purpose of the seizure was reasonable, and whether the scope and character of the seizure was reasonable in light of its purpose. I "[W]hen considering the validity of a . [Terry ] stop, our threshold inquiry is twofold.... First, we must determine at what point, if any, did the encounter between [the police officers] and the defendant constitute an investigatory stop or seizure.... Next, [i]f we conclude that there was such a seizure, we must then determine whether [the police officers] possessed a reasonable and articulable suspicion at the time the seizure occurred." (Internal quotation marks omitted.) State v. Brown, 279 Conn. 493, 516, 903 A.2d 169 (2006). With respect to the former inquiry, the defendant argues that he was seized at the moment the two marked police cruisers converged on him from opposite directions in the small Subway parking lot, and no later than the time at which Mercado commanded him to stop. The state, by contrast, contends that the Appellate Court properly affirmed the implicit conclusion of the trial court that the defendant was not seized until the officers patted him down for weapons. We agree that the defendant was seized no later than when Mercado commanded him to stop. A We begin by setting forth the legal test used to determine when a person is seized for purposes of the federal and state constitutions. "[A] person is seized when, by means of physical force or a show of authority, his freedom of movement is restrained.... The key consideration is whether, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.... The inquiry is objective, focusing on a reasonable person's probable reaction to the [officers'] conduct." (Citations omitted; footnotes omitted; internal quotation marks omitted.) State v. Burroughs, supra, 288 Conn. at 844-46, 955 A.2d 43 ; accord United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). In situations in which the police have not applied any physical force, we must conduct "a careful [fact intensive] examination of the entirety of the circumstances in order to determine whether the police engaged in a coercive display of authority...." State v. Burroughs, supra, at 846, 955 A.2d 43. Factors to be considered in determining whether police conduct projects coercion include, but are not limited to: the number of officers and vehicles involved; whether the officers are uniformed; whether the officers are visibly armed or have their weapons drawn; whether the vehicles involved are marked police cruisers, whether the vehicles' sirens and emergency lights are activated, and whether the vehicles' headlamps or spotlights illuminate the defendant; whether the defendant is alone or otherwise appears to be the target of police attention; the nature of the location, including whether it is public or private property; whether the defendant is surrounded or fully or partially blocked in by the police; the character of any verbal communications or commands issued by the police officers; whether the officers advise the detainee of his right to terminate the encounter; the nature of any physical contact; whether the officers pursue after an initial attempt by the defendant to leave; whether the officers take and retain possession of the defendant's papers or property; and any other circumstance or conduct that bespeaks aggressiveness or a show of force on the part of the police, or suggests that the defendant is under suspicion or otherwise not free to leave. See United States v. Griffith, 533 F.3d 979, 983 (8th Cir.2008) ; State v. Burroughs, supra, 288 Conn. at 846-47, 955 A.2d 43 ; State v. Thomas, 291 Kan. 676, 683, 246 P.3d 678 (2011) ; 4 W. LaFave, Search and Seizure (5th Ed.2012) § 9.2(a) and 9.4(a). Although it is true that "not all personal intercourse between [the police] and citizens involves seizures of persons"; (internal quotation marks omitted) Immigration & Naturalization Service v. Delgado, 466 U.S. 210, 215, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984) ; and that law enforcement officers must be free to engage in "healthy, mutually beneficial intercourse with the public"; State v. Burroughs, supra, at 853, 955 A.2d 43 ; it is equally true that use of coercion beyond that inherent in any police-citizen encounter transforms these sorts of informal, voluntary interactions into seizures. 4 W. LaFave, supra, at § 9.4(a), p. 601. B In support of its conclusion that the defendant was not seized until the officers frisked him for weapons, the Appellate Court offered the following analysis: "The facts found by [the trial court] and our independent review of the record demonstrate nothing more than a benign police presence in the Subway parking lot. The court's oral decision portrays an unremarkable scene of three uniformed officers approaching the defendant as part of a routine investigation to obtain identification and determine his purpose for being in the lot. In addition to the facts set forth in the court's oral decision, the record does not contain any evidence suggestive of threatening or coercive police conduct. For instance, there is no evidence that the police engaged their lights or sirens when they entered the Subway parking lot, that they brandished their weapons, or that they impeded the defendant's ability to move, either physically or verbally.... We conclude, therefore, that the defendant was not seized when the police approached him because a reasonable person in the defendant's position would not have believed that it was impermissible to leave the scene." (Citations omitted.) State v. Edmonds, supra, 151 Conn.App. at 772-73, 96 A.3d 607. Our own independent review of the record reveals anything but an unremarkable instance of benign community-police dialogue. On the contrary, we do not believe that any reasonable person, finding himself or herself in the position of the defendant, would have felt free to simply disregard the approaching officers and leave the scene. Numerous circumstances of the present case support this conclusion. From the perspective of the defendant, the incident began when two police cruisers suddenly converged on him from opposite directions, effectively blocking off his only means of egress from the small Subway parking lot. It is well established that, when law enforcement officials block a suspect's vehicle so as to prevent him from driving off, they have, by that fact alone, executed a fourth amendment seizure. See, e.g., Pane v. Gramaglia, 509 Fed.Appx. 101, 103 (2d Cir.2013) (citing authorities); State v. Clark, 297 Conn. 1, 8, 997 A.2d 461 (2010) ; State v. Januszewski, 182 Conn. 142, 147, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S.Ct. 3159, 69 L.Ed.2d 1005 (1981), overruled in part on other grounds by State v. Hart, 221 Conn. 595, 609, 605 A.2d 1366 (1992) ; 4 W. LaFave, supra, at § 9.4(a), pp. 596-97 n. 122. Both this court and our sister courts have applied the same reasoning with respect to pedestrians, concluding that a seizure occurs when the police maneuver or park their vehicles, or approach a pedestrian on foot, in such a way as to block the pedestrian's path or effectively close off any avenue of escape. See, e.g., United States v. Berry, 670 F.2d 583, 597 (5th Cir.1982) ("blocking an individual's path or otherwise intercepting him to prevent his progress in any way is a consideration of great, and probably decisive, significance"); State v. Januszewski, supra, at 147, 438 A.2d 679 (pedestrian constructively seized where police blocked his vehicle from leaving parking lot); State v. Allen, Docket No. 02CA0059, 2003 WL 21276146, *3 (Ohio App. June 4, 2003) (defendant held seized where officers effectively blocked only exit from hallway), review denied, 100 Ohio St.3d 1424, 797 N.E.2d 92 (2003) ; State v. Ingram, 82 Ohio App.3d 341, 345, 612 N.E.2d 454 (1992) (seizure when two officers blocked defendant's exits from where he sat on porch railing). We recognize that, in the present case, the officers did not fully block in the defendant, who presumably could have walked past one of the two police cruisers onto Capitol Avenue or Madison Avenue. Even under such circumstances, however, when officers have only partially blocked the available exits, courts have not hesitated to find a seizure when a reasonable person would conclude that the police have positioned their bodies or vehicles so as to effectively surround the suspect or thwart his egress. See, e.g., United States v. Smith, 794 F.3d 681, 685 (7th Cir.2015) (pedestrian in alleyway held seized when two officers "positioned their bicycles at a [forty-five degree] angle to him, obstructing his intended path forward"); State v. Burroughs, supra, 288 Conn. at 847, 955 A.2d 43 (important factors include whether individual's movement was restrained or he was otherwise isolated in some manner, such as when cruiser parks in close proximity); J.N. v. State, 778 So.2d 440, 441-42 (Fla.App.2001) (pedestrian suspected of loitering held seized when exiting alley and approached on either side by three uniformed officers in marked patrol cars); State v. Epperson, 237 Kan. 707, 714, 703 P.2d 761 (1985) (suspects held seized when officer "cut off their avenue of escape" by parking cruiser so that his open car door blocked lane of travel in which suspects' vehicle was parked [internal quotation marks omitted] ); Swift v. State, 393 Md. 139, 149, 156, 899 A.2d 867 (2006) (defendant walking on public road held seized when police officer pulled marked cruiser directly in front of him, "blocking his path"). Although there is no Connecticut authority directly on point, given the unique factual circumstances of the present case, State v. Rustad, Docket No. 58691-2-I, 2008 WL 555945 (Wn.App. March 3, 2008), a decision of the Washington Court of Appeals, is instructive. In that case, two officers, driving separate marked patrol cars, were responding to a "911 hang-up call" from a " 'known drug house' " at approximately 10:30 p.m. when they noticed a suspicious vehicle begin to turn into that home's driveway. Id., at *1. When the officers shined their flashlights at the vehicle, it instead continued down the street. Id. The officers then spotted that same vehicle in the rear of a nearby parking lot. Id. The officers entered the lot and parked thirty to forty feet away from the vehicle, near the only road providing entry to or exit from the area, and partially blocking that exit. Id. Their spotlights were aimed at the vehicle, but they did not activate their emergency lights or sirens. Id. One officer then approached the passenger side of the defendant's vehicle, while his partner "stood guard at the rear of the vehicle." Id. Both officers were uniformed and armed, although their weapons remained holstered. Id., at *2. Under those circumstances, the court concluded that the officers' actions constituted a seizure. Id. Specifically, the court concluded that, although the defendant was not physically detained, "a reasonable person would not feel free to leave or otherwise terminate the encounter" because the officers "largely, though not fully, blocked any exit the [defendant's vehicle] may have had from the parking area and back onto the road...." Id. Indeed, the theory that the police seize an individual when they knowingly surround him or obstruct his free passage is firmly rooted in our state constitution and federal common law. In State v. Oquendo, 223 Conn. 635, 650-51, 613 A.2d 1300 (1992), in construing article first, § 7 and 9, of the constitution of Connecticut, we emphasized that, at common law, "no man [could] be restrained of his liberty; be prevented from removing himself from place to place, as he [chooses]; be compelled to go to a place contrary to his inclination, or be in any way imprisoned, or confined, unless by virtue of the express laws of the land. 1 Z. Swift, [A System of the Laws of the State of Connecticut (1795) ] p. 180.... Moreover, every detention or confinement of the person in any shape, including the forcible detention of a person in the street, constituted an imprisonment." (Citation omitted; emphasis altered; internal quotation marks omitted.) A review of the case law construing certain maritime provisions of a 1790 act, which prohibited the "confine[ment of] the master of any ship or other vessel"; An Act for the Punishment of Certain Crimes against the United States, c. 9, § 12, 1 Stat. 115 (1790); makes clear that, at both the time that Chief Justice Swift wrote his two volume treatise, A System of the Laws of the State of Connecticut, in 1795 and 1796, and when the relevant provisions of the state constitution were adopted in the early nineteenth century, an individual was deemed to be illegally "confined" not only when he was physically restrained or imprisoned, but also under circumstances in which he was surrounded and thereby intimidated into believing that he could not freely move. See, e.g., United States v. Huff, 13 F. 630, 641 (C.C.W.D.Tenn.1882), and authorities cited therein; United States v. Hemmer, 26 F. Cas. 259, 260 (C.C.D.Mass.1825) ( No. 15345). To the extent that the state relies on State v. Benton, 304 Conn. 838, 43 A.3d 619 (2012), and State v. Burroughs, supra, 288 Conn. 836, 955 A.2d 43, for the proposition that blocking in or surrounding a defendant does not support a finding of seizure, that reliance is misplaced. In Benton, three young males suspected of possible involvement in gang related violence were riding their bicycles on a public street in New Haven. State v. Benton, supra, at 841, 43 A.3d 619. Two officers on foot patrol stepped into the road approximately twenty to twenty-five feet ahead of the three cyclists. Id. At that point, the defendant's two companions reversed direction and rode off. Id. The defendant also veered away and attempted to pedal off, but the officers physically apprehended him. Id. In concluding that the officers had not seized the defendant at the moment they initially stepped into the road, we relied on the facts that (1) the officers entered the road twenty to twenty-five feet away from the defendant, (2) they occupied less than one quarter of the two lane road, and (3) they stepped into the road in such a way as to indicate that they might merely have intended to advertise a police presence, or to observe the cyclists, rather than to stop them. Id., at 845-47, 43 A.3d 619. In addition, the fact that both of the defendant's companions decided to ride off in another direction, and did so, indicated that they were not in fact blocked in by the officers' conduct. See id., at 841, 43 A.3d 619. Accordingly, Benton is readily distinguishable from the present case, in which the arrival of a second police presence, from the opposite direction, closing off the only available means of egress from the lot, thwarted the defendant's initial attempt to walk away from Morales and Lawlor as they approached him. Burroughs provides even weaker authority for the state's position, because in that case the police did nothing whatsoever to discourage or hinder the defendant from leaving the scene. In Burroughs, a single police cruiser pulled up behind a vehicle that was parked at night in an industrial area, without activating the cruiser's emergency lights or sirens. State v. Burroughs, supra, 288 Conn. at 840, 852, 955 A.2d 43. Two officers exited the cruiser and walked up to the driver's and passenger's sides of the parked vehicle to determine whether the occupants needed assistance. Id. Under those circumstances, we concluded that there was no significant show of police authority sufficient to indicate that the defendant and his passenger were not free to leave. Id., at 851-52, 955 A.2d 43. Importantly, nothing barred the defendant in Burroughs from simply driving off in the direction his vehicle was facing. By contrast, if a second police cruiser had entered the scene and pulled in front of the defendant's vehicle, boxing him in, he would not have been free to leave. That is precisely what happened here. Beyond the fact that two marked police cruisers converged on the defendant from opposite directions, effectively blocking him from exiting the lot, several other aspects of the present case would indicate to a reasonable person in the defendant's position that he was not free to leave. First, the defendant was the only person in the parking lot at the time the police entered. Whereas an individual standing in a crowded area or traveling a public road has no reason to assume that a sudden police presence is directed toward him, in the present case it would have been apparent to the defendant that the two cruisers and three officers who suddenly approached were there for him. See State v. Oquendo, supra, 223 Conn. at 653, 613 A.2d 1300. Second, and relatedly, it is important that the Subway lot was private property, where police would not be expected to routinely patrol. See Parker v. Commonwealth, 255 Va. 96, 102, 496 S.E.2d 47 (1998). A third, critical consideration is the fact that, as the defendant turned to walk away from the marked police cruiser driven by Morales and Lawlor, he was confronted by a second cruiser, driven by Mercado, which had entered from the opposite direction, appearing to thwart his passage. There is a common trope in espionage and other action genre films in which the protagonist turns to retreat upon confronting an enemy, only to see more would-be captors appear from the other direction. At that point, he, along with the audience, realizes that he is trapped. Both courts and commentators have applied this basic intuition in the search and seizure context, recognizing that cornering or "pursuing a person who has attempted to terminate the contact by departing" sends a clear signal that the person is not free to leave. 4 W. LaFave, supra, § 9.4(a), p. 586; see, e.g., United States v. Beauchamp, 659 F.3d 560, 566-67 (6th Cir.2011) ; In re D.J., 532 A.2d 138, 141 (D.C.App.1987), abrogated for federal constitutional purposes by California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) ; Commonwealth v. Depina, 456 Mass. 238, 242, 922 N.E.2d 778 (2010) ; Commonwealth v. Lewis, 535 Pa. 501, 506, 509, 636 A.2d 619 (1994) ; Parker v. Commonwealth, supra, 255 Va. at 102, 496 S.E.2d 47. Other factors that would have indicated to a reasonable person in the defendant's position that he was not free to leave were the fact that he was approached by multiple uniformed police officers; see State v. Benton, supra, 304 Conn. at 846, 43 A.3d 619 ; driving multiple marked patrol cars; see State v. Burroughs, supra, 288 Conn. at 847, 955 A.2d 43 ; in a dark, unlit space. See United States v. Smith, supra, 794 F.3d at 685. Moreover, although there is no indication whether the cruisers' sirens and emergency lights were activated, we must at least assume, because the incident occurred approximately two hours after sunset, that the officers had illuminated their headlamps, and, therefore, that the defendant would have been illuminated in the glare of those headlamps as the cruisers approached him in the unlit lot. See Commonwealth v. Helme, 399 Mass. 298, 303, 503 N.E.2d 1287 (1987) ; State v. Pierce, 173 Vt. 151, 153, 787 A.2d 1284 (2001). These factors, therefore, further support the conclusion that a reasonable person, standing alone in a dark and private parking lot, who suddenly found himself blocked in by marked police cruisers, would not have felt free to leave. Lastly, if we had any remaining doubt as to whether a reasonable person in the defendant's position would have felt free to disregard the three officers and leave the scene as they approached, those doubts are dispelled by the fact that Mercado, upon entering the Subway lot, commanded the defendant to stop. As a result of this command, the defendant, who initially sought to turn away from the first cruiser driven by Lawlor and Morales, stopped and submitted to police authority. It is well settled that a reasonable citizen would not feel free to disregard a verbal command to stop issued by an armed, uniformed police officer. See State v. Benton, supra, 304 Conn. at 844 n. 4, 43 A.3d 619 (state conceded that police officer's command to stop constitutes seizure for purposes of state constitution); State v. Oquendo, supra, 223 Conn. at 647-48 n. 8, 613 A.2d 1300 (similar); State v. Williamson, 10 Conn.App. 532, 540, 524 A.2d 655 (order to halt, standing alone, constituted seizure), cert. denied, 204 Conn. 801, 525 A.2d 965 (1987) ; see also United States v. Stover, 808 F.3d 991, 995 (4th Cir.2015) (command to halt is example of police conduct that conveys to reasonable person that he is not free to leave); In re Martin H., Docket No. B151148, 2002 WL 1732650, *3 (Cal.App. July 25, 2002) ("when an officer commands a citizen to stop, this constitutes a detention because the citizen is no longer free to leave" [internal quotation marks omitted] ); Blake v. State, 939 So.2d 192, 195 (Fla.App.2006) ("[i]f . the officer phrases his or her inquiries as commands, this action would indicate that the individual was not free to leave"); M. Raymond, "The Right to Refuse and the Obligation to Comply: Challenging the Gamesmanship Model of Criminal Procedure," 54 Buff. L.Rev. 1483, 1493 (2007) ("[P]olice commands or orders create seizures. The quintessential command is the order to stop...." [Footnotes omitted.] ). Accordingly, having considered all of the relevant circumstances and all of the undisputed evidence in the record, we are compelled to conclude that a reasonable person in the defendant's position would not have felt free to leave the scene, and that the defendant was seized no later than when Mercado successfully commanded him to stop. C We next consider the state's assertion, which the Appellate Court found persuasive, that the defendant's claim that he was seized no later than when Mercado commanded him to stop is unreviewable on appeal. The state contends that we must determine either that the defendant was seized at the outset, when the officers converged on him in the middle of the parking lot, or later, when they patted him down for weapons. We disagree, and conclude that the defendant's full argument is preserved for appellate review and that we are not barred from considering any of the undisputed testimony in the record. The following additional procedural history is relevant to our evaluation of the state's argument. The defendant filed with the trial court what fairly may be characterized as a boilerplate motion to suppress evidence. The motion alleged only that: (1) "certain items seized by law enforcement officer(s) or his agent(s) . were not seized pursuant to a search and seizure warrant"; and (2) "[t]he search and seizure violated the laws and constitutions of the United States and of the [s]tate of Connecticut in that . [t]he search and seizure was unreasonable." No memorandum of law setting forth specific legal theories or arguments accompanied the motion, and the state neither filed an objection to the motion nor sought any clarification or specification as to the grounds or theories on which the defendant objected to the search and seizure. In fact, neither party presented its theory of the seizure issue prior to the opening of testimony at the suppression hearing. At the suppression hearing, the state proceeded first with its case, consistent with its burden of proving that the officers' warrantless search and seizure of the defendant was constitutional. See State v. Eady, 249 Conn. 431, 436, 733 A.2d 112, cert. denied, 528 U.S. 1030, 120 S.Ct. 551, 145 L.Ed.2d 428 (1999). The state called and examined two witnesses-Officers Morales and Lawlor-whom defense counsel cross-examined broadly about the circumstances surrounding the defendant's arrest. The prosecutor indicated that he had intended to call Sergeant Mercado as well, but that Mercado was on vacation in Florida and, therefore, unavailable to testify. When the prosecutor completed his redirect questioning of Morales, the trial court intervened to ask the officer a series of questions to clarify the timeline of events. The court specifically asked Morales one-half dozen questions about the circumstances under which Mercado had stopped the defendant from walking away, and twice asked Morales to confirm that Mercado did so by verbally commanding the defendant to stop. After questioning Morales in this area, the court gave the prosecutor an opportunity to ask Morales follow-up questions. After the state rested, the defendant briefly called one witness to establish a lack of recent criminal activity at the Subway in question. The court then invited the state to present its closing argument, and the prosecutor for the first time offered the state's theory of the search and seizure. It was only then, at the very end of the hearing, after the witnesses had been excused, both sides had rested, and the state had presented its argument, that the court invited defense counsel to argue her theory of the case. Defense counsel began by advising the court that the court's primary duty was to determine when the defendant was seized, if at all. At varying times, she argued that the defendant was seized: (1) when the police cruisers surrounded him in the lot; (2) when the three officers exited their cruisers and approached the defendant; or (3) when the police patted him down. At other times, however, defense counsel framed the issue more broadly. Near the end of the hearing, for example, she argued that the "bottom line" was that the defendant "was seized the minute that those police officers turned around and did a U-turn, came into the parking lot and stopped [the defendant ]...." (Emphasis added.) Despite the fact that defense counsel correctly advised the trial court that the court was obliged to determine whether a seizure occurred between the time that the officers entered the lot and when they verbally stopped the defendant, the trial court made no express findings in that regard. Instead, the court appears to have assumed that the frisk was the event of constitutional significance, and to have concluded that a seizure was justified at that time. On appeal, the state argues that (1) the defendant failed to preserve his argument that a seizure occurred when Mercado commanded the defendant to stop, (2) the record is inadequate for us to review this allegedly unpreserved claim, and (3) the state relied to its detriment on the fact that the defendant opted not to raise this argument at the suppression hearing. All of the state's arguments are without merit. First, we disagree with the conclusion of the Appellate Court that the defendant's claim that he was seized no later than when Mercado commanded him to stop is unpreserved and, therefore, can only be reviewed on appeal if it satisfies the Golding test. State v. Edmonds, supra, 151 Conn.App. at 770, 96 A.3d 607. At the suppression hearing, defense counsel advised the trial court that it must determine precisely when the defendant was seized. Counsel, who did not bear the burden of proof on this issue and had just heard the officers' account of the events in question for the first time, offered three specific possibilities, ranging from the moment the officers entered the lot to the moment they approached the defendant on foot to the moment they frisked him. But defense counsel also argued that the constitutionally relevant time period was of longer duration: the "minute" during which the officers turned around, entered the lot, and "stopped" the defendant. Because the only explicit testimony as to how the defendant was stopped was Morales' testimony that Mercado verbally commanded him to stop, we have no difficulty concluding that that command is fairly encompassed by the seizure theory that defense counsel articulated at the suppression hearing. As the Appellate Court has recognized, "[c]losing arguments of counsel . are seldom carefully constructed in toto before the event; improvisation frequently results in syntax left imperfect and meaning less than crystal clear.... [S]ome leeway must be afforded to the advocates in offering arguments...." (Internal quotation marks omitted.) State v. McCleese, 94 Conn.App. 510, 517-18, 892 A.2d 343, cert. denied, 278 Conn. 908, 899 A.2d 36 (2006). Second, even if we agreed that the defendant's argument is unpreserved, we would disagree with the state-and the Appellate Court-that the record is inadequate to review that argument. The state contends that the record is inadequate because: (1) the trial court made no express findings with respect to Mercado's verbal command to stop; and (2) the testimony of Morales and Lawlor as to this point allegedly conflicts. The first contention is of little moment, as it is well established that, when reviewing the constitutionality of an alleged seizure, we must parse the entire record, and not only the trial court's express findings. State v. Burroughs, supra, 288 Conn. at 843-44, 955 A.2d 43. If there is uncontested testimony by the state's own witness indicating that Mercado seized the defendant before the defendant made any incriminating statements, and if the trial court did not affirmatively decline to credit that testimony, then it is fairly considered in the context of a constitutional analysis. This is especially true in light of the fact that the trial court clearly failed to focus on the constitutional import of any of the events that transpired prior to the patdown, suggesting that we can read little into the court's failure to make express findings with respect to those events. The primary question, therefore, is whether Morales' testimony on this point is uncontested. Morales clearly testified, on multiple occasions, that it was Mercado who "stopped" the defendant. The police incident report-which Morales authored, for which Lawlor provided assistance, and which an unidentified supervisor reviewed and signed -is in full agreement, stating that "when the [defendant] turned away from us when he observed our patrol unit . Mercado drove in from the Madison [Avenue] entrance and stopped [him]...." The trial court itself questioned Morales at some length to clarify this testimony. In response, Morales specified that Mercado verbally commanded the defendant to stop. For his part, Lawlor testified only that Mercado arrived shortly after Morales and he entered the lot, and that he could not recall where Mercado had parked. He gave no indication of what role Mercado played in the incident, if any, nor whether Mercado spoke to the defendant or issued any commands. When asked whether all three officers approached the defendant, Lawlor replied: "I don't recall at what specific time but we approached him." Nothing in Lawlor's testimony, then, directly contradicted Morales' testimony that Mercado ordered the defendant to stop as, or before, the defendant made any incriminating statements. In fact, the state's argument that Lawlor offered conflicting testimony is based entirely on the following brief colloquy between the prosecutor and Lawlor: "Q. Okay. Now, when you exited the vehicle did you make contact with the individual that was hanging out in back of the Subway? "A. Well, contact was made. "Q. By who? "A. By-Officer Morales made contact with him first. "Q. Okay. And then who made contact with him second? "A. I was there, but Officer Morales was handling more of the contact first. "Q. So is it a fair assessment to say that Officer Morales spoke to the individual and you just kind of observed what was going on? "A. Yes." During this colloquy, no mention is made of Mercado and, in particular, there is no discussion of any role that Mercado might have played before Morales and Lawlor exited their vehicle. In fact, Lawlor's entire testimony during this portion of the hearing is limited to the roles that he and Morales played in the events in question, and he is not asked about Mercado's role until much later. In context, then, there simply is no reason to interpret Lawlor's brief reference to the fact that, after he and Morales exited their vehicle, Morales made the first contact with the defendant, to mean that Lawlor disagreed with Morales' testimony that Mercado initiated the stop. Indeed, the failure of either party to seek clarification of Lawlor's testimony as to this point suggests that this testimony was not interpreted to conflict with Mercado's testimony or with the officers' incident report. The most reasonable reading of the testimony, therefore, is that Lawlor was merely indicating that, of the two partners, it was Morales who interacted with the defendant. Accordingly, we are not precluded from considering Morales' uncontradicted testimony with respect to the time of seizure. Third, we are not persuaded by the argument that the state relied to its detriment on a belief that Mercado's verbal command to stop was not relevant to the case. As we already have explained, that issue clearly was raised at the suppression hearing. The trial court, sua sponte, questioned Morales about the command at some length, and afforded the prosecutor an opportunity to pursue the issue on redirect. Defense counsel later argued that the "bottom line" was that the defendant was seized during the minute in which the officers stopped the defendant. That the state opted to largely ignore the constitutional significance of the period during which the officers entered the lot and confronted the defendant, and instead focused almost exclusively on the reasonableness of the patdown search, was a strategic decision, and not the result of trial by ambuscade. Nor is there any indication that the state declined to call Mercado as a witness out of a belief that his role in the encounter was somehow irrelevant. Rather, the prosecutor indicated at the suppression hearing that he had intended to call Mercado as a witness but that Mercado was on vacation in Florida at the time. Accordingly, we reject the state's argument that, in determining when the defendant was seized, we may not consider the undisputed testimony of the state's own witness, as corroborated by the officers' official incident report, that Mercado, upon entering the parking lot, restrained the defendant by issuing a verbal command to stop. II Having concluded that the defendant was seized no later than when Mercado commanded him to stop, we next consider whether the seizure was legal. It is well settled that a Terry stop is constitutionally permissible only if three conditions are met: "(1) the officer[s] must have a reasonable suspicion that a crime has occurred, is occurring, or is about to occur; (2) the purpose of the stop must be reasonable; and (3) the scope and character of the detention must be reasonable when considered in light of its purpose." State v. Cyrus, 297 Conn. 829, 837, 1 A.3d 59 (2010) ; see also United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981) ("An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.... [That] is the central teaching of this [c]ourt's [f]ourth [a]mendment jurisprudence." [Citations omitted; emphasis omitted; footnote omitted; internal quotation marks omitted.] ). For an officer's suspicion of criminal activity to be objectively reasonable, the officer "must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion...." (Emphasis added; internal quotation marks omitted.) State v. Cyrus, supra, at 838, 1 A.3d 59. In the present case, we agree with the conclusion of the trial court that, from the time Morales and Lawlor first observed the defendant standing in the Subway lot until they and Mercado converged on his location, the officers had no reasonable, articulable suspicion that he was engaged in criminal conduct. We further conclude that the two additional factors that arose as the officers were approaching-that the defendant turned to walk away, and that his hands moved near his waist as he did so-also do not support a reasonable and articulable suspicion of criminal activity. Accordingly, we conclude that the warrantless seizure was illegal. It is undisputed that, prior to the time the officers entered the lot to question the defendant, he did not make any suspicious statements or nervous gestures. He was just standing outside at night. It is well established that the fact that a citizen chooses to stand outside at the dinner hour, in a neighborhood plagued by crime, does not warrant any reasonable and articulable suspicion that he himself is engaged in criminal activity. See State v. Santos, 267 Conn. 495, 508-509, 838 A.2d 981 (2004) (presence of individual in high crime area at night not sufficient to justify seizure), abrogated on other grounds by State v. Burroughs, 288 Conn. 836, 844 n. 5, 955 A.2d 43 (2008) ; State v. Hammond, 257 Conn. 610, 625, 778 A.2d 108 (2001) (relying on United States v. Gray, 213 F.3d 998, 1001 [ (8th Cir.2000) ], for proposition that standing on street in high crime area before 10 p.m. in cold weather insufficient to justify Terry stop); see also United States v. Blair, 524 F.3d 740, 751 (6th Cir.2008) (10:30 p.m. is "not late enough to arouse suspicion of criminal activity," even in high crime area); People v. Bower, 24 Cal.3d 638, 645, 597 P.2d 115, 156 Cal.Rptr. 856 (1979) (time of 8:37 p.m., "while falling during darkness in winter, is simply not a late or unusual hour nor one from which any inference of criminality may be drawn"); People v. Bower, supra, at 645, 156 Cal.Rptr. 856, 597 P.2d 115 (cautioning that "high crime area justification is easily subject to abuse" [internal quotation marks omitted] ); Commonwealth v. Helme, supra, 399 Mass. at 298, 302, 503 N.E.2d 1287 (stop not justified where defendant's car was parked with interior lights on and engine running at 12:30 a.m. in parking lot outside pub that was open for business). Compare 4 W. LaFave, supra, at § 9.5(e), pp. 691-92 (not suspicious for individual to stand outside residential or commercial establishment in evening), with id., at p. 688 n. 180 (listing cases finding reasonable suspicion that suspect was casing for possible burglary where suspicious conduct took place after midnight outside closed or abandoned establishments), and id., at § 9.5(g), p. 741 n. 346 (similar). Quite simply, "[t]oo many people fit this description for it to justify a reasonable suspicion of criminal activity." (Internal quotation marks omitted.) United States v. Gray, supra, 213 F.3d at 1001. Nor does standing in a private lot for a few seconds constitute loitering, particularly without any indication that the person is engaged in otherwise improper conduct or has been asked to leave the premises. See Bridgeport Municipal Code § 9.04.010; see also Wainwright v. New Orleans, 392 U.S. 598, 604, 88 S.Ct. 2243, 20 L.Ed.2d 1322 (1968) (Warren, C.J., dissenting from dismissal of writ of certification as improvidently granted); United States v. James, 62 F.Supp.3d 605, 612 (E.D.Mich.2014) ; State v. Grace, 28 Kan.App.2d 452, 459, 17 P.3d 951 (2001). In the present case, Morales and Lawlor saw an otherwise nondescript man-if they could even discern that the vague "silhouette" they saw was male-standing outside a restaurant and apartment building for a few seconds at 7 p.m., in a city with a generally high crime rate. This particular location had not reported any criminal activity for at least the prior four months, and no incidents had been reported in the area that evening. There are 1001 legitimate reasons why a man might pause for a moment outside an open eatery at the dinner hour. He might have been meeting friends, family, or colleagues for supper; waiting for his children to come out of the restroom; reviewing the menu; checking to see if a friend was inside; pondering whether he was in the mood for sandwiches or fish; taking a smoke break; making a private call; or just getting a breath of fresh air. This was not a case where the defendant looked into a store window one dozen times without entering; see Terry v. Ohio, supra, 392 U.S. at 6, 88 S.Ct. 1868 ; staked out a store for an extended period of time, from an unusual location; see State v. Thurlow, 485 A.2d 960, 963 (Me.1984) ; or paid particular attention to a store's cash registers. See Mosley v. State, 289 Md. 571, 572, 425 A.2d 1039 (1981). Quite simply, the officers were unable to articulate anything remarkable, let alone suspicious, about this particular individual that would differentiate him from any of the myriad other citizens who might have paused for a moment in any residential or commercial area of Bridgeport that evening, or that would suggest that he was preparing to commit a crime. As Justice Glass explained in his dissenting opinion in State v. Cofield, 220 Conn. 38, 50, 595 A.2d 1349 (1991), "[m]any of our less fortunate citizens are forced to establish their homes in or near locales of criminal repute, or they travel to such places to call upon friends or engage in an infinite range of innocuous human activities.... [T]he crime rate of a particular area cannot transform otherwise innocent-appearing circumstances into circumstances justifying the seizure of an individual." (Citation omitted; internal quotation marks omitted.) In fact, the defendant's conduct in this case was far less suspicious than conduct that has been held to be insufficient, as a matter of law, to justify a seizure. In State v. Donahue, 251 Conn. 636, 639, 742 A.2d 775 (1999), cert. denied, 531 U.S. 924, 121 S.Ct. 299, 148 L.Ed.2d 240 (2000), for example, the police observed an individual idle his car at 1:50 a.m. in a vacant lot outside a closed social club, on a street that " 'had experienced a dramatic increase in criminal activity in the previous four to six weeks....' " Notwithstanding that " '[i]ndividuals would often park their vehicles at the commercial establishments along [that particular street] and then walk through [a] cemetery into [a] housing project to engage in [drug dealing and prostitution]' "; id.; we concluded that the circumstances did not give rise to a reasonable and articulable suspicion of criminal activity. Id., at 648, 742 A.2d 775. Allowing the police to execute a seizure without any information linking that particular individual to any particular crime, we reasoned, would permit law enforcement to improperly profile entire neighborhoods and communities as criminal. Id., at 648 and n. 11, 742 A.2d 775. "This court," we concluded, "cannot permit such a suspension of constitutional protections." Id., at 648, 742 A.2d 775. Looking to other jurisdictions, the most similar case to the present case appears to be People v. Revoal, 269 P.3d 1238 (Colo.2012) (en banc). In that case, the police observed an individual standing outside a closed Subway shop at 11:30 p.m., in an area that had experienced a recent history of robberies. Id., at 1239. They observed the individual look to the left and to the right, as if watching for something, and then walk to a dark area across the lot, behind an open liquor store. Id. When he saw their patrol car approaching, the individual turned and walked in the opposite direction. Id. Considering all of these circumstances, the Supreme Court of Colorado unanimously concluded that the officers did not have a reasonable suspicion sufficient to justify an investigatory stop. Id. In the present case, under circumstances even less suspicious than those in Revoal and Donahue, we likewise conclude that there was no legitimate reason for Morales, Lawlor, and Mercado to seize the defendant at the time they entered the Subway lot. The only events of potential constitutional significance that transpired between the time the two cruisers entered the lot and the time that Mercado successfully commanded the defendant to stop are: (1) the fact that the defendant turned to leave when the police arrived; and (2) the fact that the defendant's hand moved near his waistband as he turned. These factors, taken together with those previously discussed, also do not provide sufficiently specific grounds to support a reasonable conclusion that the defendant was involved in criminal activity. First, the fact that the defendant turned to walk away when he saw Morales and Lawlor driving into the Subway lot does not suggest that he was up to something nefarious. It is true that an individual's "[h]eadlong flight" upon perceiving police may justify a Terry stop. Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) ; accord State v. Middleton, 170 Conn. 601, 605, 368 A.2d 66 (1976). The mere fact that a citizen turns and walks away from an approaching police officer does not, however, support a reasonable and articulable suspicion of criminality. State v. Hammond, supra, 257 Conn. at 625, 778 A.2d 108 ; see also United States v. Jones, 584 F.3d 1083, 1087 (D.C.Cir.2009) (stating federal rule), cert. denied, 559 U.S. 1044, 130 S.Ct. 2081, 176 L.Ed.2d 428 (2010) ; State v. Milotte, 95 Conn.App. 616, 617, 897 A.2d 683 (2006) (fact that defendant, in area where driving under influence arrests are common, appeared to drive so as to avoid police officer held too speculative to justify Terry stop), appeal dismissed, 281 Conn. 612, 917 A.2d 25 (2007) ; State v. Hicks, 241 Neb. 357, 362, 488 N.W.2d 359 (1992) (majority rule among states is that citizens may avoid or retreat from police presence without creating reasonable suspicion of criminality). We have recognized that "merely veering off course may be a wholly appropriate response to the sudden appearance of police officers in the roadway and is consistent with going about one's business...." (Internal quotation marks omitted.) State v. Benton, supra, 304 Conn. at 850, 43 A.3d 619. In the present case, not only did the defendant not flee headlong from the officers, but he did not flee at all; Morales even rejected the suggestion that the defendant had walked away "quickly." There are a number of legitimate reasons why a law-abiding citizen may not desire to remain on the scene when the police appear, especially in a dangerous neighborhood where police-citizen relations may be strained. See Alberty v. United States, 162 U.S. 499, 511, 16 S.Ct. 864, 40 L.Ed. 1051 (1896) (noting that, as matter of common knowledge, people who are entirely innocent may seek to depart crime scene due to fear of being mistakenly apprehended or unwillingness to appear as witnesses). As Justice Stevens elaborated in his concurring and dissenting opinion in Illinois v. Wardlow, supra, 528 U.S. at 131-34, 120 S.Ct. 673, "a reasonable person may conclude that an officer's sudden appearance indicates nearby criminal activity. And where there is criminal activity there is also a substantial element of danger-either from the criminal or from a confrontation between the criminal and the police. These considerations can lead to an innocent and understandable desire to quit the vicinity with all speed. "Among some citizens, particularly minorities and those residing in high crime areas, there is also the possibility that the fleeing person is entirely innocent, but, with or without justification, believes that contact with the police can itself be dangerous, apart from any criminal activity associated with the officer's sudden presence.... [T]he evidence supporting the reasonableness of these beliefs is too pervasive to be dismissed as random or rare, and too persuasive to be disparaged as inconclusive or insufficient." (Footnotes omitted.) See also State v. Hicks, supra, 241 Neb. at 363, 488 N.W.2d 359 ("[f]ear or dislike of authority, distaste for police officers based upon past experience, exaggerated fears of police brutality or harassment, and fear of unjust arrest are all legitimate motivations for avoiding the police"). It would be ironic, to say the least, if we were to rely on a defendant's freedom to leave as evidence that there was not a seizure but then rely on the mere exercise of that ability to conclude that there is a reasonable suspicion that justifies a seizure. Turning to the second factor, the state contends that the fact that Lawlor saw the defendant "engage in movements around his waistband as he walked" led the officers reasonably to suspect the defendant of criminal activity. Courts and commentators have recognized, however, that the mere fact that the police report that a suspect moved his hands in the area of his waist, without further context or detail, does not justify a warrantless seizure. See In re Jeremy P., 197 Md.App. 1, 14, 11 A.3d 830 (2011) (reviewing "waistband" cases from various jurisdictions and concluding that "a police officer's observation of a suspect making an adjustment in the vicinity of his waistband does not give rise to reasonable suspicion of criminal involvement sufficient to justify a Terry stop"). Because a typical man's hands hang only a few inches or so below his waist, under normal circumstances it is virtually impossible to turn and walk off in such a way that the hands do not appear to come into proximity thereto. Surely it cannot be the case that any man living in a high crime neighborhood who appears to move his hands in the vicinity of his waist as the police approach, or who engages in commonplace and innocuous conduct such as briefly adjusting his pants, thereby subjects himself to search and seizure. See Duhart v. United States, 589 A.2d 895, 899-900 (D.C.1991). The officers in the present case did not provide the sort of detailed testimony that has been found to support a reasonable and articulable suspicion of gun possession in other cases. For example, there was no testimony describing a gun-shaped bulge in the clothing, an awkward gait or arm movement typical of those carrying concealed guns, an informant's tip that the subject was armed, or the fact that persons similarly situated to the defendant frequently carry unlicensed guns. See, e.g., United States v. Parker, 277 Fed.Appx. 48, 51 (2d Cir.2008) ; State v. Mann, 271 Conn. 300, 322-26, 857 A.2d 329 (2004), cert. denied, 544 U.S. 949, 125 S.Ct. 1711, 161 L.Ed.2d 527 (2005) ; 4 W. LaFave, supra, at § 9.6(a), pp. 855-62. In fact, the officers never even testified that they actually believed the defendant was carrying a weapon. Although we have recognized a compelling interest in preserving officer safety; see State v. Mangual, 311 Conn. 182, 209-10, 85 A.3d 627 (2014) ; mere conclusory testimony that the officers were concerned for their safety does not constitute the sort of specific, articulable evidence necessary to justify a Terry stop. See Pinnock v. New Haven, 553 F.Supp.2d 130, 141 (D.Conn.2008). Accordingly, while we remain cognizant of law enforcement officers' legitimate safety concerns, we cannot allow the police to invoke an individual's waistband like a talisman in order to justify any seizure after the fact. Particularly in a case such as the present one, where the facts that have been asserted as justifying an officer safety patdown-repeated fiddling with the waistband and refusal to comply with officers' orders-are almost entirely facts that the officers neglected to memorialize in their official incident report, and then claimed to remember two years later at a suppression hearing where they were unable to recall other basic details of the incident, we should be extremely wary of sanctioning a seizure in the absence of truly specific and articulable evidence that the defendant was engaged in criminal conduct. A decision of the Supreme Court of Colorado is instructive in this regard. See People v. Thomas, 660 P.2d 1272 (Colo.1983), overruled on other grounds by People v. Archuleta, 980 P.2d 509, 515 (Colo.1999). The facts of Thomas are remarkably similar to those of the present case. While stopped at a red light, police officers observed the defendant, Joseph Thomas, " 'just standing' " in the parking lot of a fast-food restaurant. Id., at 1273. Upon their approach, Thomas placed his hand in his pocket, and either walked or ran across the lot toward an adjoining building. Id., at 1273-74. The court concluded that the mere fact that an individual in a high crime area makes a " 'furtive gesture' " about his clothing and quickly leaves the scene upon the arrival of law enforcement is clearly insufficient to justify a seizure. Id., at 1275-76, 1276 n. 2. By contrast, our decision in State v. Mann, supra, 271 Conn. at 325, 857 A.2d 329, on which the Appellate Court relied; State v. Edmonds, supra, 151 Conn.App. at 776, 96 A.3d 607 ; is readily distinguishable. In that case, the police had specific prior information that drugs were being packaged and sold from the apartment in question. State v. Mann, supra, at 323-24, 857 A.2d 329. Upon confronting the police at the apartment door, the defendant in that case immediately thrust his hand into his pocket. Id., at 324, 857 A.2d 329. Under those circumstances, and given the "well established correlation between drug dealing and firearms," we concluded that there was a reasonable suspicion that the defendant was armed and posed an imminent danger to the police. (Internal quotation marks omitted.) Id., at 325, 857 A.2d 329. In the present case, by contrast, there was no specific and articulable basis for the officers to believe that the defendant was engaged in criminal conduct, that he was reaching for a weapon, or that they were in any immediate danger. For these reasons, we conclude that the officers' seizure of the defendant was not supported by a reasonable and articulable suspicion that he was engaged in criminal conduct and, accordingly, that his motion to suppress the narcotics evidence obtained in violation of his constitutional rights should have been granted. The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to reverse the judgment of the trial court and to remand the case to the trial court with direction to grant the defendant's motion to suppress. In this opinion ROGERS, C.J., and PALMER, EVELEIGH and ROBINSON, Js., concurred. We granted the defendant's petition for certification to appeal limited to the following two issues: (1) "Did the Appellate Court properly determine that the record was not adequate for appellate review of the defendant's claim that he was seized when Sergeant Ronald Mercado commanded him to stop?"; and (2) "Did the Appellate Court properly determine that the defendant was not seized until police officers conducted a patdown search of the defendant's person?" State v. Edmonds, 314 Conn. 925, 100 A.3d 855 (2014). Because the certified questions are inextricably linked with the related issue of whether the officers' seizure of the defendant was reasonable, and because the defendant briefed that question extensively and the state-while declining to brief the question before this court-briefed it before the Appellate Court and argued it at oral argument before this court, we address it herein as well. See Montoya v. Montoya, 280 Conn. 605, 617 n. 11, 909 A.2d 947 (2006). The fourth amendment to the United States constitution provides in relevant part: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...." Article first, § 7, of the Connecticut constitution provides in relevant part: "The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures...." Article first, § 9, of the Connecticut constitution provides: "No person shall be arrested, detained or punished, except in cases clearly warranted by law." Although we have determined that, under certain circumstances, the relevant provisions of the state constitution provide broader protection from unreasonable search and seizure than does the fourth amendment; see, e.g., State v. Oquendo, 223 Conn. 635, 649-50, 613 A.2d 1300 (1992) ; our analysis and resolution of the present appeal would be the same under either constitution. We recognize, however, that the defendant's claim that he was seized the moment that two police cruisers approached him from opposite directions in the parking lot, and before he was ordered to stop, is cognizable only under the constitution of Connecticut, because the United States Supreme Court has held that the fourth amendment is not implicated until a suspect actually submits to a show of authority by the police or is physically detained. California v. Hodari D., 499 U.S. 621, 628-29, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). Only three witnesses testified at the suppression hearing: two of the three arresting officers, and a sergeant with the Bridgeport Police Department (department) called by the defense for the limited purpose of establishing that the department's computer aided dispatch system had not recorded any incidents at the location of the defendant's arrest during the four months preceding the defendant's arrest. The court found, rather, that "[i]t was dark outside...." See Time and Date AS, "Bridgeport, CT, USA-Sunrise, Sunset, and Daylength, January 2011," available at http://www.timeanddate.com/sun/usa/bridgeport?month=1&year=2011 (last visited June 1, 2016); see also State v. Morris, 47 Conn. 179, 180 (1879) ("[t]he time of the rising or setting of the sun on any given day belongs to a class of facts . of which courts will take judicial notice"). When the trial court asked Morales whether the fidgeting hand motions occurred at the same time as the defendant professed his innocence, Morales responded ambiguously: "[n]o, I believe that was before." (Emphasis added.) Under Golding, a criminal defendant can prevail on an unpreserved claim of constitutional error if all of the following conditions are met: "(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation . exists and . deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." (Footnote omitted.) State v. Golding, supra, 213 Conn. at 239-40, 567 A.2d 823 ; see also In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015) (modifying third prong of Golding ). Because we conclude, taking all of the relevant circumstances into account, that the defendant was seized without reasonable justification when Mercado commanded him to stop, we need not consider the defendant's alternative theory that he was seized at the outset, when the officers converged on his position in the center of the parking lot. See footnotes 2 and 3 of this opinion. Accordingly, this case is readily distinguishable from State v. Brunetti, 279 Conn. 39, 901 A.2d 1 (2006), cert. denied, 549 U.S. 1212, 127 S.Ct. 1328, 167 L.Ed.2d 85 (2007), in which the defendant, who had taken the lead during the suppression hearing; id., at 48 n. 14, 901 A.2d 1 ; and consistently argued that his father's consent to search was invalid, shifted gears on appeal and began to argue for the first time that his mother's opposition precluded a valid consent search. Id., at 48-49, 53, 901 A.2d 1. It is unclear whether the supervisor's signature is that of Mercado or another supervisor. At the time of the suppression hearing in February, 2013, for example, Morales, who had conducted more than 500 such patdowns over the course of his career, was unclear about or unable to recall a number of significant details of the January, 2011 incident involving this particular defendant: whether there were any cars in the lot; whether he patted the defendant down on a vehicle; who transported the defendant from the scene; which officer was driving the cruiser; whether Mercado was accompanied by another officer; where Mercado parked; what statements the defendant made upon being confronted; whether the defendant was wearing a hood; the circumstances under which the defendant provided the police with two different addresses; and which officer questioned the defendant. Morales did testify, however, that he specifically recalled: the defendant tussling with his pants in the area of his waistband and belt buckle; placing his hands behind him; fixing his pants; and ignoring the officers' commands that he keep his hands in plain view. When Lawlor was first questioned as to what concern led to the need for an officer safety patdown, he replied only that he was concerned because the defendant initially started to walk away from the police and denied having robbed anyone. The prosecutor, however, responded by further prompting Lawlor: "[D]id the defendant make any movements with his hands at all to the best of your recollection?" Lawlor then volunteered that, in fact, the defendant had "moved them toward his waistband when he was walking away." Neither officer was able to explain why they had neglected to include these key details in their official incident report, which stated only that the defendant "kept moving his hands around in a nervous manner and yelling 'this is embarrassing!' while continuing to state his innocence."

12489663

STATE of Connecticut v. Evandro P. LIMA

State v. Lima

2017-05-16

SC 19736

651

660

159 A.3d 651

159

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

2021-08-27T20:57:14.017162+00:00

Fastcase

STATE of Connecticut v. Evandro P. LIMA

STATE of Connecticut v. Evandro P. LIMA SC 19736 Supreme Court of Connecticut. Argued November 9, 2016 Officially released May 16, 2017 Vishal K. Garg, for the appellant (defendant). James M. Ralls III, assistant state's attorney, with whom, on the brief, were Maureen T. Platt, state's attorney, and John J. Davenport, supervisory assistant state's attorney, for the appellee (state). Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa and Robinson, Js.

5082

31899

PALMER, J. The defendant, Evandro P. Lima, appeals from the judgment of the trial court, which denied his motion to vacate his guilty plea to one count of conspiracy to commit larceny in the third degree in violation of General Statutes § 53a-124 and 53a-48. The defendant claims that the trial court abused its discretion in denying that motion because, under General Statutes § 54-1j(a), the court was required but failed to ask the defendant whether he had spoken with counsel about the possible immigration consequences of pleading guilty before accepting the plea offer. We disagree with the defendant that the trial court improperly failed to inquire of the defendant whether he had consulted with counsel about the possible immigration consequences of his guilty plea because the defendant expressly acknowledged that he understood those consequences, which is all that was required for purposes of § 54-1j(a). We therefore affirm the judgment of the trial court. The following undisputed facts and procedural history are relevant to our resolution of this appeal. The defendant entered a plea of guilty under the Alford doctrine to conspiracy to commit larceny in the third degree after he and a friend took an automobile worth approximately $10,000 from a dealership for a test drive and never returned it. During the plea canvass, when the court asked the defendant whether he had discussed with his attorney the case and his decision to plead guilty, he answered in the affirmative. The defendant also responded in the affirmative when the court asked him whether he understood that, if he was not a citizen, his conviction could result in his "removal from the United States, exclusion from readmission or denial of naturalization ." At the conclusion of the plea canvass, the trial court also asked the assistant state's attorney and defense counsel whether there was any reason why the court should not accept the defendant's plea, and both responded that they were not aware of any such reason. Following the plea canvass, the court sentenced the defendant to one year of incarceration. Thereafter, pursuant to § 54-1j(a) and (c), the defendant filed a motion to vacate his guilty plea, claiming that the trial court improperly failed to determine whether he had spoken to defense counsel about the possible immigration consequences of pleading guilty before the court accepted the defendant's plea. The trial court denied the defendant's motion, concluding that § 54-1j(a) contains no requirement that the court ask the defendant whether he had discussed with counsel the possible immigration consequences of pleading guilty; rather, it requires the court to ask only whether he understood that pleading guilty could have such consequences. Under the trial court's reading of the statute, only if the defendant had answered the court's question in the negative was it obligated to conduct an additional inquiry. The defendant claims on appeal that § 54-1j(a) is ambiguous as to whether the trial court was required to make an express inquiry of the defendant to determine whether he had discussed with counsel the possible immigration consequences of pleading guilty. The defendant contends that this ambiguity arises from the fact that, although the statute provides that the trial court must allow a defendant time to discuss with counsel those possible consequences of his plea if he has not already done so, it is silent as to the manner in which the trial court is to determine whether such a discussion had taken place. According to the defendant, two possibilities exist. The first is that, before accepting the defendant's plea, the court must ask the defendant directly whether he has discussed the immigration consequences of the plea with his attorney. The second is that the court may ascertain whether such a discussion had taken place when it asks the defendant whether he understands that his plea could carry with it certain adverse immigration consequences because, if the defendant has not previously discussed that issue with counsel, he will respond to the court's inquiry in the negative. The defendant further maintains that, in light of this ambiguity, this court may consult extratextual evidence of the statute's meaning, such as its legislative history, prior judicial decisions and the laws of other states, which, according to the defendant, support his reading of the statute. As in all cases of statutory interpretation, we begin our analysis with the pertinent statutory language. Section 54-1j(a) provides that the court shall not accept a guilty plea without first addressing the defendant personally to ensure that he fully understands that, if he is not a United States citizen, his conviction may have certain enumerated immigration consequences under federal law, and, further, if the defendant has not discussed these possible consequences with his attorney, the court shall permit him to do so before accepting his plea offer. Section 54-1j(c) provides that, if the court fails to comply with the requirements of subsection (a), and the defendant can demonstrate that his conviction may have one of the enumerated immigration consequences, the court, upon motion of the defendant within three years of the plea, shall vacate the judgment and permit the defendant to withdraw his guilty plea and enter a plea of not guilty. Thus, by its terms, "[§] 54-1j (a) permits a court to accept a defendant's plea only if the court conducts a plea canvass during which . (1) the court personally addresses the defendant and (2) the court determines that the defendant understands fully the possible immigration consequences that may result from entering a plea." State v. James , 139 Conn.App. 308, 313, 57 A.3d 366 (2012). The defendant maintains, however, that § 54-1j imposes a third requirement, namely, that the trial court must inquire directly of the defendant as to whether he has discussed with counsel the possible immigration consequences of pleading guilty. In the defendant's view, this requirement inheres in the language directing the court to allow the defendant the opportunity to have such a discussion if he has not already done so. As the defendant acknowledges, however, the Appellate Court rejected this very argument in State v. James , supra, 139 Conn.App. at 313-14, 57 A.3d 366, concluding that § 54-1j(a), by its plain terms, does not require that the trial court determine whether the defendant has discussed with counsel the possible immigration consequences of a guilty plea. Although acknowledging that an attorney has a well established and independent duty to advise a client about those possible consequences of pleading guilty; id., at 313 n.1, 57 A.3d 366 ; the Appellate Court rejected the contention that § 54-1j(a) was a source of that duty, stating in relevant part: "We do not read [§ 54-1j(a) ] . as requiring defense counsel to advise the defendant of the possible immigration consequences of entering a plea or as requiring that the court specifically inquire as to whether defense counsel advised the defendant of the possible immigration consequences of entering a plea. Rather, we read [the] conditional language [at issue] to direct the court, before accepting a plea, to provide the defendant an opportunity to discuss with defense counsel the possible immigration consequences of entering a plea if the court is made aware that the defendant has not [previously] discussed those immigration consequences with defense counsel." (Footnote altered.) Id., at 313-14, 57 A.3d 366. We agree with the Appellate Court that § 54-1j(a) does not purport to require the trial court to inquire directly of the defendant as to whether he has spoken with counsel about the possible immigration consequences of pleading guilty before the court accepts the defendant's guilty plea. Well established rules of statutory construction compel this conclusion, chief among them the bedrock principle that the legislature is fully capable of enacting legislation consistent with its intent, particularly in the area of criminal procedure. See, e.g., State v. Fernando A ., 294 Conn. 1, 101, 981 A.2d 427 (2009) (Palmer , J. , dissenting in part) ("[a] review of other criminal procedure statutes demonstrates that, when the legislature has desired to impose specific requirements on the conduct of a pretrial hearing, it has said so explicitly" [internal quotation marks omitted] ); Fedus v. Planning & Zoning Commission , 278 Conn. 751, 771 n.17, 900 A.2d 1 (2006) (legislature knows how to enact legislation consistent with its intent). Thus, we may assume that, if the legislature had intended to require the trial court to determine that the defendant had discussed with counsel the possible immigration consequences of pleading guilty, it would have indicated such an intent explicitly, in the same manner that it directed the trial court to determine that the defendant fully understood those consequences. "It is not the province of this court, under the guise of statutory interpretation, to legislate such a policy, even if we were to agree with the [defendant] that it is a better policy than the one endorsed by the legislature as reflected in its statutory language." DiLieto v. County Obstetrics & Gynecology Group, P.C ., 316 Conn. 790, 803-804, 114 A.3d 1181 (2015) ; see also State v. Whiteman , 204 Conn. 98, 103, 526 A.2d 869 (1987) ("[i]t is not the function of courts to read into clearly expressed legislation provisions [that] do not find expression in its words" [internal quotation marks omitted] ). Our interpretation finds support in the fact that, under subsection (c) of § 54-1j, a conviction may be vacated only "[i]f the court fail [ed] to address the defendant personally [to] determine that [he] fully understands the possible consequences of [his] plea, as required in subsection (a) of [§ 54-1j ] ." Once again, we may presume that, if the legislature had intended to allow a conviction to be set aside for any other reason, it would have indicated such intent explicitly. In reaching our determination, we are also mindful "that the jurisdiction of the sentencing court terminates once a defendant's sentence has begun and that a court may not take action affecting a defendant's sentence unless it expressly has been authorized to act ." (Emphasis added.) State v. Lawrence , 281 Conn. 147, 154, 913 A.2d 428 (2007). In light of this limitation on the court's jurisdiction, we previously have stated that "[t]he only reasonable interpretation [of § 54-1j(a) ] is that a court has jurisdiction [to vacate a conviction] only if the conditions expressly provided [thereunder] are satisfied." State v. Ramos , 306 Conn. 125, 140, 49 A.3d 197 (2012). As we have explained, § 54-1j(c) authorizes the trial court to vacate a conviction only if the court failed to determine that the defendant understood that pleading guilty may adversely affect his immigration status and, within three years following the acceptance of the plea, the defendant moves to vacate his conviction upon a showing that the conviction may result in one or more of the possible immigration consequences enumerated in § 54-1j(a). Because the trial court's canvass of the defendant in the present case complied with the requirements of § 54-1j (a), the trial court properly denied the defendant's motion to vacate. The defendant nonetheless argues that this court's decision in State v. Hall , 303 Conn. 527, 35 A.3d 237 (2012), supports his contention that the trial court was required to ascertain from him whether he had discussed with counsel the possible immigration consequences of pleading guilty. Specifically, the defendant relies on this court's statement in Hall that "the statute, on its face, turns on communication between the defendant and his attorney about immigration consequences" and the statement that, "based on the text of the statute, the legislature was primarily concerned with ensuring that defendants engage in a conversation with their counsel, not the court, regarding the immigration consequences of guilty pleas." (Emphasis omitted.) Id., at 536, 35 A.3d 237. We disagree that the quoted language, when considered in context, supports the defendant's contention. In Hall , the defendant, Osibisa Hall, claimed that, under § 54-1j(c), the trial court's failure to address him personally during the plea canvass-the court had addressed his attorney instead-to determine whether he understood the immigration consequences of his plea required that his conviction be vacated and that he be allowed to withdraw his guilty plea. See id., at 530-32, 35 A.3d 237. Before accepting Hall's plea, the trial court had asked whether there were any immigration issues to be concerned about, and counsel had responded that there were but that he had discussed them with Hall and that Hall understood them. See id., at 530-31, 35 A.3d 237. The state also advised the court during the hearing that Hall was to be deported after serving his sentence. See id., at 531-32, 35 A.3d 237. In light of these facts, this court concluded that the trial court had substantially complied with the basic tenets of § 54-1j(a), which was all that the statute required under State v. Malcolm, 257 Conn. 653, 778 A.2d 134 (2001). See State v. Hall , supra, 303 Conn. at 533-36, 35 A.3d 237 ; see also State v. Malcolm , supra, at 662, 778 A.2d 134 ("only substantial compliance with [§ 54-1j(a) ] is required to validate a defendant's guilty plea"). In reaching our determination, we rejected Hall's contention "that [a 2003] amendment to § 54-1j(a) subsequent to our decision in Malcolm require[d] us to revisit the substantial compliance standard." State v. Hall , supra, 303 Conn. at 534, 35 A.3d 237. In so doing, we explained that, "[p]rior to the 2003 amendment; see Public Act 2003, No. 03-81, § [1 (P.A. 03-81) ]; the statute provided that [t]he court shall not accept a plea of guilty or nolo contendere from any defendant in any criminal proceeding unless the court advises him of the following: If you are not a citizen of the United States, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization, pursuant to the laws of the United States.... General Statutes (Rev. to 2003) § 54-1j(a). As a result of the amendment, rather than requiring the court to advise the defendant of the potential immigration consequences of his plea, the statute requires the court to [address] the defendant personally and [to determine] that the defendant fully understands [those potential consequences] ." (Emphasis omitted; internal quotation marks omitted.) State v. Hall , supra, at 534, 35 A.3d 237. Hall, however, argued that the 2003 amendment also "require[d] the court in all circumstances to direct its immigration inquiry to the defendant himself, not his attorney ."(Internal quotation marks omitted.) Id. In addressing this argument, we acknowledged "that § 54-1j, as amended, places an additional burden on the court to ascertain the defendant's understanding of the potential consequences of his plea ." Id., at 534-35, 35 A.3d 237. We also emphasized that the better practice for trial courts is "full and literal compliance with the statute." Id., at 538, 35 A.3d 237. We concluded, however, that the purpose of the statute-"to warn a defendant of possible immigration consequences from a guilty plea"-remained the same following the amendment and that, just as before, "rather than demanding that trial courts instruct defendants on the intricacies of immigration law, [the statute] seeks only to put defendants on notice that their resident status could be implicated by the plea." (Internal quotation marks omitted.) Id., at 535, 35 A.3d 237. In light of the purpose of § 54-1j, we concluded that the trial court had substantially complied with that statutory provision because the record revealed "that [Hall] was adequately warned that his immigration status could be implicated by his guilty pleas. In response to the court's inquiry, defense counsel stated on the record that he had informed [Hall] about potential immigration issues and that [Hall] understood the possible consequences of his pleas. The trial court properly relied [on] these representations by defense counsel." Id., at 536, 35 A.3d 237. Such reliance, we observed, was also consistent with the trial court's duty under § 54-1j(a) to allow the defendant time to discuss the immigration consequences of a guilty plea with counsel if the defendant has not already done so. Id. That provision, we noted, reflects that "the legislature was primarily concerned with ensuring that defendants engage in a conversation with their counsel, not the court, regarding the immigration consequences of guilty pleas." Id. Contrary to the defendant's contention, however, our observation concerning the legislature's understanding of the trial court's role in effectuating the policy reflected in § 54-1j was intended simply to underscore the reasonableness of the trial court's reliance on defense counsel's representations regarding Hall's understanding of the immigration consequences of his plea, because it was the duty of counsel, not the trial court, to apprise Hall of those consequences. Indeed, the right to the effective assistance of counsel guaranteed by the sixth amendment to the United States constitution requires defense counsel to advise a defendant about the possible immigration consequences of pleading guilty whenever that defendant considers entering such a plea. See, e.g., Padilla v. Kentucky , 559 U.S. 356, 367, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) ("[a]uthorities of every stripe-including the American Bar Association, criminal defense and public defender organizations, authoritative treatises, and state and city bar publications-universally require defense attorneys to advise as to the risk of deportation consequences for [noncitizen] clients [during plea negotiations]" [internal quotation marks omitted] ); Budziszewski v. Commissioner of Correction , 322 Conn. 504, 506-507, 142 A.3d 243 (2016) ("the federal constitution's guarantee of effective assistance of counsel requires criminal defense counsel to accurately advise a noncitizen client of the immigration consequences of pleading guilty to a crime, as described in federal law"). We note, moreover, our observation in Hall ; see State v. Hall , supra, 303 Conn. at 535 n.7, 35 A.3d 237 ; that the 2003 amendment to § 54-1j, which added the language at issue in this appeal, appears to have been enacted in response to two Appellate Court decisions, namely, State v. Webb , 62 Conn.App. 805, 813-14, 772 A.2d 690 (2001), and State v. Irala , 68 Conn.App. 499, 518-21, 792 A.2d 109, cert. denied, 260 Conn. 923, 797 A.2d 519, cert. denied, 537 U.S. 887, 123 S.Ct. 132, 154 L.Ed.2d 148 (2002), neither of which supports the defendant's interpretation of the statute. As we previously discussed, prior to the 2003 amendment, § 54-1j(a) provided that a "court shall not accept a plea . unless the court advises " the defendant that if he was not a citizen of this country, his conviction "may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization, pursuant to the laws of the United States." (Emphasis added; internal quotation marks omitted.) General Statutes (Rev. to 2003) § 54-1j(a). In Webb , the defendant, Delroy Anthony Webb, argued that the term "advises," as used in the preamendment version of the statute, "required the court to actively interact with the defendant and to engage in a colloquy to ensure that he fully underst[ands] the deportation consequences of his guilty plea ." State v. Webb , supra, 62 Conn.App. at 813, 772 A.2d 690. Although the Appellate Court rejected this claim, the legislature apparently agreed with it because, shortly thereafter, it amended § 54-1j(a) to require, in language nearly identical to the language the Appellate Court had used to describe Webb's claim, that the trial court actively interact with a defendant during the plea canvass to ensure that the defendant fully understands the possible immigration consequences of pleading guilty. See P.A. 03-81, § 1, codified at General Statutes (Rev. to 2005) § 54-1j(a). In State v. Irala , supra, 68 Conn.App. 499, 792 A.2d 109, the Appellate Court rejected a claim that the trial court had misled the defendant, Fanny Irala, by informing her, in accordance with the preamendment version of § 54-1j(a), that, if she was not a citizen, her conviction "could" result in her deportation; (emphasis omitted) id., at 519, 792 A.2d 109 ; when, in fact, under federal immigration law, her conviction was certain to result in her deportation. See id. In rejecting Irala's claim, the Appellate Court, relying on State v. Malcolm , supra, 257 Conn. at 663-64, 778 A.2d 134, held that the preamendment version of § 54-1j did not require trial courts to "instruct defendants on the intricacies of immigration law, [but sought] only to put defendants on notice that their resident status could be implicated by the plea.... [T]he statute's purpose [was] simply to recognize that this collateral consequence [of a guilty plea] is of such importance that the defendant should be informed of its possibility.... The onus rests . with the defendant and her counsel to determine the final result applicable to her situation under federal immigration law before entering a plea ." (Citations omitted; emphasis added; footnote omitted; internal quotation marks omitted.) State v. Irala , supra, at 520, 792 A.2d 109. When read in light of Irala , the 2003 amendment requiring the court to inform defendants that they have the right to discuss with counsel the immigration consequences of pleading guilty if they have not already done so is properly understood as a codification of the principle, applied in Irala , that it is primarily the role of counsel to provide such advice, not the role of the court. We note, finally, that the scant legislative history surrounding the 2003 amendment does not support the defendant's interpretation of the amendment but, instead, suggests that it was enacted solely to reduce the number of habeas cases in which the petitioners claimed not to have understood the immigration implications of pleading guilty. Such a reduction was to be achieved by requiring defendants, when entering a guilty plea, to state for the record their understanding that it may adversely impact their immigration status. Dana Clark, who testified in support of the proposed legislation on behalf of the Office of the Chief Public Defender, stated in relevant part: "This bill would require the court to ascertain whether a defendant understands the possible immigra[tion] consequences prior to pleading guilty or nolo contendre in a criminal proceeding. "Currently there is no requirement that the court ascertain whether the defendant understands the immigration ramifications [of pleading guilty]. As it stands now, the court is required . only to advise the defendant that if he or she is not a citizen of the United States . certain immigration consequences [may ensue]. "Since the court is already required to give this advice, the only substantial change would be that the court asks the defendant a question, which requires an answer, instead of simply making a statement about the consequences. "By requiring the court to ascertain affirmatively that the defendant understands the possible consequences on the record, the defendant would no longer be able to request that the judgment be vacated or the plea withdrawn by way of a writ of habeas corpus on the ground that he or she did not understand the immigration consequences. "This door would be closed because the defendant's affirmative acknowledgment of his or her understanding of the consequences would be on the record.... "Passage of [the proposed legislation] would result in a decrease in the number of habeas corpus petitions brought before the court that allege that [a] plea was not voluntary. This decrease in the number of petitions filed would provide the Habeas Unit [of] the Office of [the] Chief Public Defender more time to devote to other petitions in the system, which is already so [over-burdened]." Conn. Joint Standing Committee Hearings, Judiciary, Pt. 7, 2003 Sess., pp. 2163-64. Thus, contrary to the defendant's assertion, the legislative history is fully consistent with our conclusion that the 2003 amendment was not intended to impose any requirements on the trial court apart from the ones expressly provided therein. The judgment is affirmed. In this opinion the other justices concurred. The plaintiff appealed to the Appellate Court from the judgment of the trial court, and we transferred the appeal to this court pursuant to General Statutes § 51-199(c) and Practice Book § 65-1. General Statutes § 54-1j(a) provides: "The court shall not accept a plea of guilty or nolo contendere from any defendant in any criminal proceeding unless the court first addresses the defendant personally and determines that the defendant fully understands that if the defendant is not a citizen of the United States, conviction of the offense for which the defendant has been charged may have the consequences of deportation or removal from the United States, exclusion from readmission to the United States or denial of naturalization, pursuant to the laws of the United States. If the defendant has not discussed these possible consequences with the defendant's attorney, the court shall permit the defendant to do so prior to accepting the defendant's plea." General Statutes § 54-1j(c) provides: "If the court fails to address the defendant personally and determine that the defendant fully understands the possible consequences of the defendant's plea, as required in subsection (a) of this section, and the defendant not later than three years after the acceptance of the plea shows that the defendant's plea and conviction may have one of the enumerated consequences, the court, on the defendant's motion, shall vacate the judgment, and permit the defendant to withdraw the plea of guilty or nolo contendere, and enter a plea of not guilty." Unless otherwise noted, all references to § 54-1j are to the current revision of the statute. A defendant pleading guilty under the Alford doctrine neither admits guilt nor protests innocence, but merely acknowledges that the state can produce evidence that would be sufficient to obtain a conviction. See North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). "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 . 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 [the broader statutory scheme]. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.... The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation.... When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter ." (Internal quotation marks omitted.) State v. Pond, 315 Conn. 451, 466-67, 108 A.3d 1083 (2015). Furthermore, whether § 54-1j(a) required the trial court to inquire directly of the defendant as to whether he had spoken to counsel about the possible immigration consequences of pleading guilty before the court accepted his plea presents an issue of statutory construction over which our review is plenary. The court in James made clear that it was not suggesting that defense counsel has no duty to advise an accused of the immigration consequences of a guilty plea but, rather, that § 54-1j is not the source of that duty. State v. James, supra, 139 Conn.App. at 313 n.1, 57 A.3d 366. We note, moreover, that, even if we were to agree with the defendant that § 54-1j(a) is susceptible of more than one reasonable interpretation, the principle of legislative acquiescence would counsel against the construction advanced by the defendant. See, e.g., State v. Flemke, 315 Conn. 500, 512, 108 A.3d 1073 (2015) ("[o]nce an appropriate interval to permit legislative reconsideration has passed without corrective legislative action, the inference of legislative acquiescence places a significant jurisprudential limitation on our own authority to reconsider the merits of our earlier decision" [internal quotation marks omitted] ). State v. James, supra, 139 Conn.App. 308, 57 A.3d 366, which rejected a claim identical to the defendant's; id., at 313-14, 57 A.3d 366 ; was decided by the Appellate Court four and one-half years ago, enough time to give rise to an inference that the legislature does not disapprove of the Appellate Court's interpretation of § 54-1j. See, e.g., Rivera v. Commissioner of Correction, 254 Conn. 214, 252, 756 A.2d 1264 (2000) (six year interval without legislative action supported inference of legislative acquiescence). The defendant also contends that we should construe § 54-1j(a) as directing trial courts to inquire whether a defendant has discussed the possible immigration consequences of pleading guilty with counsel because statutes in several other jurisdictions require that the court allow time for a defendant to have such a discussion only upon the defendant's request. The defendant asserts that the absence of any such " 'upon request' language . from § 54-1j(a) strongly suggests that the onus is on the court, rather than [on] the defendant, to ensure that the defendant has had adequate time to speak with counsel about immigration consequences." We will not read into § 54-1j requirements that are not contained therein merely because other states have chosen different language to effectuate the same policy. We note, moreover, that the statutes that the defendant cites are arguably less protective of noncitizen defendants because, unlike § 54-1j(a), they do not require courts to determine that a defendant fully understands that pleading guilty may result in his deportation or inability to later reenter the country; instead, they merely require that the court advise the defendant that such consequences may ensue from the entry of a guilty plea. Having concluded that, under § 54-1j, the trial court is not required to ask a defendant whether he has consulted with counsel about the possible immigration consequences of his guilty plea when that defendant has informed the court that he understands those possible consequences, we nevertheless believe that it is a good practice to make such an inquiry. Thus, we therefore encourage our trial courts to do so.

12489619

Javier SANTOS v. COMMISSIONER OF CORRECTION

Santos v. Comm'r of Corr.

2017-04-12

No. 38149

241

241

159 A.3d 241

159

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.017162+00:00

Fastcase

Javier SANTOS v. COMMISSIONER OF CORRECTION

Javier SANTOS v. COMMISSIONER OF CORRECTION No. 38149 Appellate Court of Connecticut. Submitted on briefs April 12, 2017 Officially released May 9, 2017

29

191

Per Curiam. The judgment is affirmed.

12489597

STATE of Connecticut v. Geraldo TORRES

State v. Torres

2017-05-16

No. 38859

1204

1204

159 A.3d 1204

159

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.017162+00:00

Fastcase

STATE of Connecticut v. Geraldo TORRES

STATE of Connecticut v. Geraldo TORRES No. 38859 Appellate Court of Connecticut. Argued April 20, 2017 Officially released May 16, 2017

27

174

Per Curiam. The judgment is affirmed.

12489596

Lori LIESENFELT v. Raymond J. LEMLEY

Liesenfelt v. Lemley

2017-04-04

No. 38144

1203

1203

159 A.3d 1203

159

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.017162+00:00

Fastcase

Lori LIESENFELT v. Raymond J. LEMLEY

Lori LIESENFELT v. Raymond J. LEMLEY No. 38144 Appellate Court of Connecticut. Argued March 8, 2017 Officially released April 4, 2017

27

172

Per Curiam. The judgment is affirmed.

12489595

Robert M. BLOCH v. The LAW OFFICES OF NEIL CRANE, LLC

Bloch v. Law Offices of Neil Crane, LLC

2017-04-19

No. 38802

1203

1203

159 A.3d 1203

159

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.017162+00:00

Fastcase

Robert M. BLOCH v. The LAW OFFICES OF NEIL CRANE, LLC

Robert M. BLOCH v. The LAW OFFICES OF NEIL CRANE, LLC No. 38802 Appellate Court of Connecticut. Submitted on briefs April 19, 2017 Officially released May 16, 2017

34

202

Per Curiam. The judgment is affirmed.

12489594

STATE of Connecticut v. Edward PARKER

State v. Parker

2017-05-16

No. 37855

1203

1203

159 A.3d 1203

159

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.017162+00:00

Fastcase

STATE of Connecticut v. Edward PARKER

STATE of Connecticut v. Edward PARKER No. 37855 Appellate Court of Connecticut. Argued February 8, 2017 Officially released May 16, 2017

51

317

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

12489582

STATE of Connecticut v. Jon SWEBILIUS

State v. Swebilius

2017-05-30

SC 19526

1099

1112

159 A.3d 1099

159

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

2021-08-27T20:57:14.017162+00:00

Fastcase

STATE of Connecticut v. Jon SWEBILIUS

STATE of Connecticut v. Jon SWEBILIUS SC 19526 Supreme Court of Connecticut. Argued September 23, 2016 Officially released May 30, 2017 Daniel M. Erwin, for the appellant (defendant). Harry Weller, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Leon F. Dalbec, Jr., and James Dinnan, senior assistant state's attorneys, for the appellee (state). Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa and Robinson, Js. This case originally was scheduled to be argued before a panel of this court consisting of Chief Justice Rogers and Justices Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson. Thereafter, Justice Zarella retired from the court. Although Justice Espinosa was not present at oral argument, she has read the briefs and appendices, and has listened to a recording of oral argument prior to participating in this decision.

7622

47237

PALMER, J. In State v. Crawford , 202 Conn. 443, 521 A.2d 1034 (1987), this court held that a criminal statute of limitations will be tolled by the issuance of an arrest warrant within the statutory limitation period, as long as the warrant is executed "without unreasonable delay." Id., at 451, 521 A.2d 1034. The defendant, Jon Swebilius, was charged with possession of child pornography in the first degree in violation of General Statutes (Rev. to 2007) § 53a-196d (a) and was arrested thirty-two days after the issuance of a warrant for his arrest and thirteen days after the expiration of the applicable five year statute of limitations for that offense. The defendant moved to dismiss the charge on the ground that the prosecution was barred by the statute of limitations because, he claimed, the delay in the execution of the warrant was unreasonable. The trial court denied the motion, and the defendant appealed to the Appellate Court, which affirmed the judgment of the trial court, concluding that the delay was reasonable as a matter of law under Crawford and its progeny. State v. Swebilius , 158 Conn.App. 418, 423-28, 119 A.3d 601 (2015). We granted the defendant's petition for certification to appeal, limited to the following question: "Did the Appellate Court properly affirm the trial court's decision denying the defendant's motion to dismiss pursuant to . Crawford . ?" (Citation omitted.) State v. Swebilius , 318 Conn. 907, 122 A.3d 635 (2015). We conclude that the Appellate Court incorrectly determined that a thirty-two day delay in the execution of an arrest warrant, where the warrant was executed after the expiration of the limitation period, is reasonable as a matter of law such that the state was under no obligation to present evidence demonstrating that the delay was not objectively unreasonable and, therefore, excusable. Accordingly, we reverse the judgment of the Appellate Court with direction to remand the case to the trial court for a hearing on whether the delay in the execution of the warrant was reasonable under the circumstances. The following undisputed facts and procedural history are relevant to our resolution of this appeal. On May 28, 2008, the Connecticut State Police executed a search warrant on room number 59 at the Meriden Inn, the defendant's place of residence at the time. During the search, the police seized thirty-four computer related items, which were submitted on the same day to the state forensic laboratory for analysis. The police did not receive the results of the forensic analysis until April 2, 2013, and another month elapsed before they secured a warrant for the defendant's arrest. The arrest warrant was issued on May 9, 2013, nineteen days before the expiration of the five year limitation period of General Statutes (Rev. to 2007) § 54-193 (b). A short time after the limitation period expired, the defendant contacted the state police seeking the return of the property seized from his residence on May 28, 2008. As a result of this inquiry, the defendant learned about the warrant for his arrest, and, on June 10, 2013, he voluntarily surrendered to the state police. Following his arrest, the defendant moved to dismiss the charge, claiming that, even though the arrest warrant had been issued within the statutory limitation period, the delay in its execution was unreasonable, and, therefore, the prosecution was barred by the statute of limitations. Prior to the hearing on his motion to dismiss, the defendant entered a conditional plea of nolo contendere subject to the trial court's ruling on the motion to dismiss. Thereafter, a hearing on that motion was held before the court, S. Moore , J . At the hearing, the defendant presented uncontested evidence that he had lived openly in Connecticut and was available for arrest throughout the five year limitation period. The state adduced no evidence. Following the hearing, the trial court found that the defendant "was not elusive, was available in the area and did not evade at the time service was made." The court also found that the state police "did not attempt execution of the [arrest] warrant before June 10, 2013, and only executed the warrant on that date upon the [defendant's] surrendering himself at the police barracks." Although the state presented no evidence as to the reasons for the delay in the execution of the arrest warrant, it argued that the delay was not unreasonable because of its short duration, because the defendant suffered no prejudice as a result thereof, and because there had been "no showing" by the defendant "of any lack of due diligence" on the part of the police in executing the warrant. The trial court agreed with the state that the issuance of the arrest warrant, in this case, tolled the statute of limitations. Although it recognized that, under Crawford , "there is no per se approach as to what constitutes a reasonable time to execute a warrant," the court was unable to find "that a period of time as [short] as [thirty-two] days would be considered unreasonable," noting that delays found by other courts to be unreasonable typically involved significantly longer periods of time. Thus, the court concluded that, "[a]lthough the police efforts might be characterized as [minimal] or nonexistent . given the very short period of time that elapsed from the signing of the warrant to the execution of service, the police actions resulted in a timely commencement of prosecution." The defendant appealed to the Appellate Court, claiming that the trial court improperly relied solely on the length of the delay in finding that the thirty-two day delay was reasonable. See State v. Swebilius , supra, 158 Conn.App. at 419-20, 427, 119 A.3d 601. The Appellate Court disagreed. The court acknowledged that, under State v. Soldi , 92 Conn.App. 849, 857, 887 A.2d 436, cert. denied, 277 Conn. 913, 895 A.2d 792 (2006), once a defendant has demonstrated that he was in the state and available for arrest during the relevant timeframe, the burden generally shifts to the state to prove that any delay in the execution of an arrest warrant was not unreasonable. See State v. Swebilius , supra, at 424, 119 A.3d 601. The court also acknowledged that, under State v. Crawford , supra, 202 Conn. at 451, 521 A.2d 1034, the "failure to execute an arrest warrant for even a short period of time might be unreasonable ." (Internal quotation marks omitted.) State v. Swebilius , supra, at 428, 119 A.3d 601. The court determined, however, that State v. Kruelski , 41 Conn.App. 476, 487, 677 A.2d 951, cert. denied, 238 Conn. 903, 677 A.2d 1376 (1996), which held that a one day delay in executing a warrant beyond the statute of limitations was reasonable as a matter of law, was controlling in the present case. State v. Swebilius , supra, at 428, 119 A.3d 601 ; see also id., at 426-28, 119 A.3d 601 and n.8. The Appellate Court reasoned that Kruelski established that some delays may be so de minimis as to require no justification by the state, and that the thirty-two day delay in the present case fell into that category. See id., at 428, 119 A.3d 601. On appeal to this court, the defendant argues that the Appellate Court's conclusion that the delay was sufficiently brief as to require no justification ignores this court's express rejection of a per se rule in State v. Crawford , supra, 202 Conn. at 451, 521 A.2d 1034, and this court's admonition therein that the failure to execute a warrant "for even a short period of time" might be unreasonable in certain circumstances. Id. The defendant also argues that allowing the state to extend the statute of limitations without any showing of due diligence undermines the right of defendants to fair and timely notice of the charges against them, as well as the values of repose and finality embodied in such statutes. The defendant further contends that the Appellate Court's reliance on Kruelski was misplaced because, in that case, the police executed the arrest warrant on the day they received it, and, therefore, the court's conclusion that the delay was reasonable as a matter of law must be interpreted in light of those facts rather than as evidence that the court intended to create an exception to Crawford . The state responds that, even if delays in the execution of a warrant require justification in all cases, regardless of the brevity of the delay, Crawford places the burden on the defendant to prove that the delay was unreasonable. Thus, when the defendant fails to produce evidence demonstrating that the police failed to act with due diligence in serving a warrant, the delay must be presumed to be reasonable. Accordingly, the state maintains that cases such as State v. Soldi , supra, 92 Conn.App. at 857, 887 A.2d 436, which shift the burden to the state to justify delays in the execution of a warrant once the defendant meets his burden of establishing his availability for arrest during the relevant time period, are antithetical to the holding in Crawford and should be overruled. We agree with the defendant that the Appellate Court incorrectly determined that some delays in the execution of an arrest warrant may be so brief as to be reasonable as a matter of law for the purpose of tolling the applicable statute of limitations. We further conclude that the burden shifting framework that the Appellate Court applied in Soldi and other cases is fully consistent with Crawford and properly allocates burdens between the parties. General Statutes (Rev. to 2007) § 54-193 (b) provides in relevant part that "[n]o person may be prosecuted for any offense, except a capital felony, a class A felony or a violation of section 53a-54d or 53a-169, for which the punishment is or may be imprisonment in excess of one year, except within five years next after the offense has been committed. ." In State v. Crawford , supra, 202 Conn. at 447, 521 A.2d 1034, in which the applicable time limitation for the misdemeanor offenses charged was one year, this court was asked to determine whether the mere issuance of an arrest warrant within the limitation period was sufficient to commence a prosecution for purposes of § 54-193, thereby tolling the limitation period. In that case, the trial court had rejected the motion of the defendant, Ronald L. Crawford, to dismiss the charges as being beyond the statute of limitations when the arrest warrant for Crawford had been issued approximately two months after the commission of the charged offenses-well within the one year limitation period-but not executed for more than two years after the offenses were committed and more than one year after the expiration of the statute of limitations. Id., at 445, 521 A.2d 1034. This court upheld the trial court's judgment. See id., at 453, 521 A.2d 1034. In doing so, we recognized that, as a general matter, "[w]hen an arrest warrant has been issued, and the prosecutorial official has promptly delivered it to a proper officer for service, he has done all he can under our existing law to initiate prosecution and to set in motion the machinery that will provide notice to the accused of the charges against him. When the prosecutorial authority has done everything possible within the period of limitation to evidence and effectuate an intent to prosecute, the statute of limitations is tolled." (Footnote omitted.) Id., at 450, 521 A.2d 1034. We also recognized, however, "that some limit as to when an arrest warrant must be executed after its issuance is necessary in order to prevent the disadvantages to an accused attending stale prosecutions, a primary purpose of statutes of limitation[s]." Id. Accordingly, we determined that, "in order to toll the statute of limitations, an arrest warrant, when issued within the time limitations of § 54-193 (b), must be executed without unreasonable delay ." (Emphasis added.) Id., at 450-51, 521 A.2d 1034. In reaching that determination, we expressly declined "[to] adopt a per se approach as to what period of time to execute an arrest warrant is reasonable. A reasonable period of time is a question of fact that will depend on the circumstances of each case. If the facts indicate that an accused consciously eluded the authorities, or for other reasons was difficult to apprehend, these factors will be considered in determining what time is reasonable. If, on the other hand, the accused did not relocate or take evasive action to avoid apprehension, failure to execute an arrest warrant for even a short period of time might be unreasonable and fail to toll the statute of limitations." Id., at 451, 521 A.2d 1034. Because the statute of limitations is an affirmative defense, however, and because Crawford presented no evidence suggesting that the warrant in that case was not executed with due diligence, we were unable to conclude that the delay was unreasonable, and, accordingly, we upheld the trial court's judgment. See id., at 451-53, 521 A.2d 1034. In light of the inadequacy of the record in Crawford , we had no occasion to consider what kind of evidence a defendant must present to support a statute of limitations defense. Subsequent Appellate Court cases, however, have considered that question and concluded that, once a defendant presents evidence of his availability for arrest during the limitation period, the burden shifts to the state to present evidence of its due diligence in executing the warrant. See, e.g., State v. Woodtke , 130 Conn.App. 734, 740, 25 A.3d 699 (2011) ("once a defendant puts forth evidence to suggest that she was not elusive, was available and was readily approachable, the burden shifts to the state to prove that the delay in executing the warrant was not unreasonable" [internal quotation marks omitted] ), quoting State v. Soldi , supra, 92 Conn.App. at 857, 887 A.2d 436. In contravention to its position before the Appellate Court, the state argues before this court that Soldi and Woodtke are incompatible with Crawford because they eliminate the defendant's burden of proving the statute of limitations defense. To the contrary, we hold that this burden shifting framework is a logical and proper extension of this court's decision in Crawford . Specifically, we hold that, once the defendant has demonstrated his availability for arrest, he has done all that is required to carry his burden; the burden then shifts to the state to demonstrate that any period of delay in executing the warrant was not unreasonable. As we previously noted, in Crawford , this court had no reason to explore the extent of Crawford's burden in proving the statute of limitations defense. Nothing that we said in Crawford , however, is inconsistent with the burden shifting approach that the Appellate Court later adopted. In Crawford , we simply held that the statute of limitations is an affirmative defense in Connecticut, such that a defendant is required to present some evidence "concerning the reason for the delay in the execution of the warrant ." State v. Crawford , supra, 202 Conn. at 451, 521 A.2d 1034. In that case, neither Crawford nor the state presented any evidence at all with respect to this issue-including any evidence of Crawford's location during the limitation period. See id., at 445-46, 521 A.2d 1034. The subsequent cases of the Appellate Court, however, as well as the present case, stand in contrast. When a defendant presents evidence that she was "not elusive, was available and was readily approachable"; State v. Soldi , supra, 92 Conn.App. at 857, 887 A.2d 436 ; as the defendant did in the present case, we agree with the court in Soldi that she has discharged her burden under Crawford . By eliminating one possible reason for delay-the defendant's absence or elusiveness-such evidence manifestly concerns the reason for delay and the diligence of the police in executing the warrant. See, e.g., 1 A.L.I., Model Penal Code and Commentaries (1985) § 1.06, comment, p. 95 (Model Penal Code and Commentaries) ("[i]n determining whether delay is unreasonable, factors affecting the state's ability to locate the accused may be taken into account"); see also State v. Figueroa , 235 Conn. 145, 178, 665 A.2d 63 (1995) ("if the defendant puts forward evidence to suggest that the state reasonably could have executed the warrant sooner," reasonableness is question of fact for jury); State v. Ali , 233 Conn. 403, 416, 660 A.2d 337 (1995) (because police had defendant's address, "[t]he jury could have concluded . that . the arrest could have been effectuated far sooner"). Our conclusion that a defendant satisfies his burden by producing evidence of his nonelusiveness and availability also accords with this court's observation in Crawford that, "[i]f . the accused [does] not relocate or take evasive action to avoid apprehension, failure to execute an arrest warrant for even a short period of time might be unreasonable and fail to toll the statute of limitations." State v. Crawford , supra, 202 Conn. at 451, 521 A.2d 1034. Indeed, our primary reason in that case for concluding that a prosecution commences with the issuance rather than the execution of an arrest warrant was to avoid "reward[ing]" an accused, "absent evidence of a lack of due diligence on the part of the officer charged with executing the warrant, for managing to avoid apprehension to a point in time beyond the period of limitation." Id., at 450, 521 A.2d 1034. In the present case, however, we have no such concerns because the trial court expressly found that "the defendant was not elusive, was available in the area and did not evade at the time service was made," and those findings have not been challenged on appeal. Once the defendant has presented evidence of his availability for arrest, it is reasonable and proper that the burden should then shift to the state to explain why, notwithstanding the defendant's availability during the statutory period, the delay in his arrest was reasonable. Doing so allocates burdens efficiently by requiring each party to bring forth evidence uniquely within its knowledge. Such a burden shifting model is also consistent with the distribution of burdens with respect to other affirmative defenses in Connecticut, few of which require a defendant to present affirmative evidence of matters beyond his personal ken. To dispense with that model in the present case would needlessly impose a significant burden on the defendant-and the judicial system-when the state is in a far better position to determine what efforts were undertaken to ensure the defendant's prompt arrest. This burden shifting scheme also encourages diligence by law enforcement officials in providing timely notice of charges to defendants. Although we decline to specify the precise actions that they must undertake to serve a warrant with due diligence, or the precise timeline within which they must act, such officials must present some credible and persuasive factual basis for inaction when they fail to observe the statute of limitations. This requirement is consistent with the principle that, when a judicial doctrine, "for all practical purposes, extends the statute [of limitations] beyond its stated term," that doctrine "should be applied in only limited circumstances ." (Internal quotation marks omitted.) Toussie v. United States , 397 U.S. 112, 115, 90 S.Ct. 858, 25 L.Ed.2d 156 (1970) ; see id. (considering doctrine of continuing offenses). Accordingly, once a defendant has demonstrated his availability and nonelusiveness during the statutory period, the state must then demonstrate the reasonableness of any delay between the issuance and the service of an arrest warrant, at least when service occurs after the expiration of the limitation period. The state nonetheless argues that the Appellate Court correctly determined that some delays in the execution of an arrest warrant, including the thirty-two day delay in question, are so brief as to require no justification on the part of the state. We are not persuaded by this contention. In Crawford , as we have previously explained, this court explicitly declined to "adopt a per se approach as to what period of time to execute an arrest warrant is reasonable," concluding, instead, that the reasonableness determination must be made on a case-by-case basis in light of the particular facts and circumstances presented. State v. Crawford , supra, 202 Conn. at 451, 521 A.2d 1034. As Crawford also made clear, in the absence of any effort by the defendant to elude the authorities, even a short period of delay in executing the warrant might be unreasonable if there is no legitimate explanation or justification for the delay. Id. In reaching a contrary conclusion, the Appellate Court relied on its decision in Kruelski . See State v. Swebilius , supra, 158 Conn.App. at 426-28, 119 A.3d 601. In Kruelski , a warrant was issued for the defendant's arrest on August 22, 1994, but was only delivered to an officer for service, and subsequently executed, on August 25, 1994, one day after the expiration of the one year statute of limitations. State v. Kruelski , supra, 41 Conn.App. at 478, 677 A.2d 951. The trial court determined that the prosecution was barred by the statute of limitations because the warrant, although issued, had not been "delivered" to a proper officer for service within the limitation period. Id., at 479, 677 A.2d 951. The Appellate Court reversed the trial court's dismissal of the case; id., at 488, 677 A.2d 951 ; concluding that the point at which a warrant is delivered to an officer for service is irrelevant under Crawford , which requires only that the period between issuance and execution of the warrant not be unreasonable. See id., at 485-87, 677 A.2d 951. The court then concluded, "as a matter of law," and with no additional analysis, "that [the] one day delay was not an unreasonable delay vitiating the tolling of the statute of limitations." Id., at 487, 677 A.2d 951. In light of this language, the Appellate Court in the present case concluded that some delays can be so short that they require no justification on the part of the state. We disagree. To the extent that Kruelski relies on a per se exception to the statute of limitations for short periods of delay, it is inconsistent with this court's conclusion in Crawford and is hereby overruled. Other cases applying Crawford provide similarly little support for the Appellate Court's conclusion that brief delays may be reasonable simply because they are short in duration. It is true that the periods of delay considered in most Connecticut cases have been significantly longer than thirty-two days. Such statistics, however, have limited value in the present context because when lengthy delays were found to be reasonable in those cases, additional facts, aside from the length of the delay alone, supported that conclusion. See, e.g., State v. Derks , 155 Conn.App. 87, 89-90, 95, 108 A.3d 1157 (delay of nearly twelve years reasonable where defendant moved out of state), cert. denied, 315 Conn. 930, 110 A.3d 432 (2015). Indeed, typically, the defendant's evasive actions have been a significant or dispositive reason for the delay. See footnote 14 of this opinion. Consequently, these cases do not require us to conclude that shorter periods of delay are necessarily reasonable once a defendant has established his availability for arrest. Finally, we agree with the defendant that a rule making some delays reasonable without any showing of due diligence is inconsistent with the purposes of statutes of limitations. As we have observed, such statutes serve several functions, among them "(1) prevent[ing] the unexpected enforcement of stale and fraudulent claims by allowing persons after the lapse of a reasonable time, to plan their affairs with a reasonable degree of certainty, free from the disruptive burden of protracted and unknown potential liability, and (2) . aid[ing] in the search for truth that may be impaired by the loss of evidence, whether by death or disappearance of witnesses, fading memories, disappearance of documents or otherwise." (Internal quotation marks omitted.) St. Paul Travelers Cos. v. Kuehl , 299 Conn. 800, 809-10, 12 A.3d 852 (2011) ; see also Model Penal Code and Commentaries, supra, § 1.06, comment, p. 86. It is precisely because of these concerns that we require statutes of limitations to be strictly construed in favor of the accused. See, e.g., State v. Whiteman , 204 Conn. 98, 103, 526 A.2d 869 (1987). Thus, although the precise length of any statutory limitation period is necessarily somewhat arbitrary, such statutes nevertheless reflect the will of the legislature that, at least in the absence of special or compelling circumstances, the limitation period shall serve as a firm bar to prosecution. See, e.g., id., at 100, 526 A.2d 869 (prosecution for sexual assault was barred when warrant was issued ten days after expiration of statute of limitations). It is also well established that statutes of limitations are not primarily concerned with demonstrable prejudice. See State v. Woodtke , supra, 130 Conn.App. at 740, 25 A.3d 699. Instead, after the passage of the specified period of time, evidence of prejudice becomes less important than the virtues of predictability, repose, and societal stability. See, e.g., United States v. Marion , 404 U.S. 307, 322, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971) ("[S]tatutes [of limitations] represent legislative assessments of relative interests of the [s]tate and the defendant in administering and receiving justice; they are made for the repose of society and the protection of those who may [during the limitation] . have lost their means of [defense]. . These statutes provide predictability by specifying a limit beyond which there is an irrebuttable presumption that a defendant's right to a fair trial would be prejudiced." [Citation omitted; internal quotation marks omitted.] ); see also C. Callahan, "Statutes of Limitation-Background," 16 Ohio St. L.J. 130, 137 (1955) ("the social interest in individual stability is the purpose [that] most nearly accords with the apparent scope of the statutes" [footnote omitted] ). Accordingly, we agree with the drafters of § 1.06(5) of the Model Penal Code that "[i]t is undesirable . to toll the statute of limitations in instances [in which] the warrant is issued but no effort is made to arrest a defendant whose whereabouts are known." Model Penal Code and Commentaries, supra, § 1.06, comment, p. 95. The policies underlying statutes of limitations are best served when exceptions are interpreted narrowly in favor of the accused and the state has a strong incentive to ensure that a defendant is provided timely notice of charges. To be sure, our decision in the present case is not intended to impose an undue burden on the state. We have concluded merely that, if the defendant can demonstrate his availability during the statutory period, the state must make some effort to serve the arrest warrant before the relevant statute of limitations expires, or to offer some evidence explaining why its failure to do so was reasonable under the circumstances. Indeed, in cases involving relatively brief delays, evidence of a legitimate need to prioritize competing public safety responsibilities may well be sufficient to demonstrate compliance with the dictates of Crawford . That fact sensitive determination, however, is a matter properly within the reasoned judgment of the fact finder. In the present case, the trial court relied solely on the length of the delay in ruling in the state's favor. As we have explained; see footnote 5 of this opinion; in doing so, the trial court effectively applied an incorrect legal standard. Because the standard employed by the trial court was incorrect, the state had no need to adduce evidence justifying the delay. Accordingly, on remand, the state must be afforded the opportunity to demonstrate that it made reasonable efforts to execute the warrant before the expiration of the statute of limitations or to explain why its failure to do so was reasonable under the circumstances. The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to reverse the judgment of the trial court and to remand the case to that court for further proceedings according to law. In this opinion the other justices concurred. The applicable statute of limitations is General Statutes (Rev. to 2007) § 54-193 (b), which provides in relevant part: "No person may be prosecuted for any offense, except a capital felony, a class A felony or a violation of section 53a-54d or 53a-169, for which the punishment is or may be imprisonment in excess of one year, except within five years next after the offense has been committed. ." The arrest warrant states that 119 images and 30 video recordings appearing to depict child pornography were recovered from the defendant's storage media. The trial court found that counsel for the defendant learned of the arrest warrant, by telephone, from the police on May 31, 2013. The hearing testimony is less clear about whether it was counsel or the defendant himself who initiated contact with the police, and about when the defendant first became aware of the warrant. As the Appellate Court noted, however, it is clear that there was some contact between the defendant and the police after the statute of limitations had expired but prior to the execution of the arrest warrant. See State v. Swebilius, supra, 158 Conn.App. at 427 n.9, 119 A.3d 601. The trial court and, thereafter, the Appellate Court calculated the delay in the execution of the warrant in the present case as totaling thirty-one days. The parties, however, agree that the delay was thirty-two days. We agree with the parties and therefore treat the delay as thirty-two days. While recognizing that a per se approach to reasonableness is improper under Crawford, the trial court's ruling, as reflected in its memorandum of decision, is predicated solely on the length of time that had elapsed. Although the state defends the trial court's decision as a matter of "basic common sense," we do not believe that simply citing a period of time and stating that "common sense" makes that period of time reasonable can, without more, render the trial court's determination one of fact. Thus, whether the trial court labeled this a per se rule or a matter of common sense, or something else entirely, is simply immaterial; it was essentially a legal, rather than factual, determination. In other words, the trial court effectively determined that the delay was reasonable as a matter of law, solely on the basis of the length of the delay and irrespective of any other facts. In reviewing a motion to dismiss, appellate courts exercise plenary review over the trial court's ultimate legal conclusions, even as the facts underlying the decision are reviewed only for clear error. See, e.g., State v. Bonner, 290 Conn. 468, 477-78, 964 A.2d 73 (2009). Thus, because the trial court effectively based its decision on the legal conclusion that a thirty-two day delay in the execution of an arrest warrant is sufficiently brief as to be per se reasonable under Crawford, we review its decision as a question of law over which we exercise de novo review. The state, in its Appellate Court brief in the present case, conceded that, "under circumstances [in which] the defendant has shown himself not to have been elusive and/or [when] it would not have been particularly difficult to locate him and [to] serve the arrest warrant, the burden to prove that the arrest warrant was executed during a reasonable period of time shifts to the state." (Emphasis added.) State v. Swebilius, Conn. Appellate Court Briefs & Appendices, April Term, 2015, State's Brief p. 22. The first case the state cited in support of that proposition was Crawford. Id. We note that the cases since Crawford that have considered the distribution of burdens in relation to § 54-193 (b) have been nearly uniform in placing the burden on the state to present evidence of due diligence. See, e.g., Roger B. v. Commissioner of Correction, 157 Conn.App. 265, 271-72, 279-80, 116 A.3d 343 (2015) (when petitioner claimed ineffective assistance of counsel on basis of his attorney's failure to raise statute of limitations defense, burden shifted to respondent to prove that delay was not unreasonable once petitioner demonstrated that he was available for arrest); State v. Derks, 155 Conn.App. 87, 89-90, 94, 108 A.3d 1157 (burden of proof never shifted to state because defendant absconded to Colorado and lived there for more than twelve years between issuance and execution of warrant), cert. denied, 315 Conn. 930, 110 A.3d 432 (2015) ; State v. Woodtke, supra, 130 Conn.App. at 741, 744-45, 25 A.3d 699 (state failed to carry burden when it did not diligently search for defendant); Gonzalez v. Commissioner of Correction, 122 Conn.App. 271, 285-86, 999 A.2d 781 (burden of proof never shifted to state because petitioner had relocated to Puerto Rico), cert. denied, 298 Conn. 913, 4 A.3d 831 (2010) ; State v. Kader, Superior Court, judicial district of New Haven, Docket No. N23N-MV-13-081829-S (April 26, 2013) (55 Conn. L. Rptr. 925, 925-26, 2013 WL 2132093 ) (delay of nearly fifteen months in serving arrest warrant was unreasonable when defendant lived openly and continuously at Connecticut residence, police made no attempt to serve warrant, and "state could offer no compelling reason" for delay); State v. Gauthier, Superior Court, judicial district of New Haven, Docket No. N23N-MV-11-0074499-S, 2012 WL 5992689 (September 11, 2012) (because defendant "did nothing to evade arrest," burden shifted to state "to show whether the delay was reasonable or not"); State v. Saez, Superior Court, judicial district of New Haven, Docket No. MV-08-0046495-S, 2009 WL 3283412 (August 28, 2009) (acknowledging vitality of burden shifting regime); but see State v. Suarez, Superior Court, judicial district of New London, Docket No. MV-99-0639258-S (November 23, 1999) (25 Conn. L. Rptr. 647, 648, 1999 WL 1125413 ) ("the [d]efendant did not establish by a preponderance of the evidence that the warrant had been unreasonably delayed" because he "did not prove that the state police did not make attempts to serve the warrant"). In light of this history, there is little merit in the state's argument that the burden shifting framework of the Appellate Court's cases threatens to upend the well established holding of Crawford. Rather, the interests of stability, continuity, and judicial efficiency promoted by the principle of stare decisis; see, e.g., Conway v. Wilton, 238 Conn. 653, 659, 680 A.2d 242 (1996) ; militate in favor of recognizing that Soldi and Woodtke have long been the de facto rule of law in Connecticut. General Statutes § 53a-12(b), which defines affirmative defenses, is instructive. Section 53a-12(b), which provides that "[w]hen a defense declared to be an affirmative defense is raised at a trial, the defendant shall have the burden of establishing such defense by a preponderance of the evidence," was incorporated into our Penal Code in 1969 "largely" on the basis of the New York Revised Penal Law, and the relevant statutes of New York and Connecticut are nearly identical. Commission to Revise the Criminal Statutes, Penal Code Comments, Conn. Gen. Stat. Ann. § 53a-12 (West 2012) comment, p. 429. Furthermore, like Connecticut, New York considers the statute of limitations to be an affirmative defense that "must be pleaded and proved by the party invoking it ." (Citation omitted.) Paladino v. Time Warner Cable, 16 A.D.3d 646, 647, 793 N.Y.S.2d 63 (2005). Yet, New York cases require only that a defendant allege the expiration of the statutorily prescribed period in order to establish a prima facie defense under the statute of limitations, at which point the burden shifts to the state to show that the statute was tolled. See, e.g., People v. Burroughs, 108 A.D.3d 1103, 1104, 968 N.Y.S.2d 773 ("[W]hen the crimes were committed, the statute of limitations for the charged offenses was five years . Because [the defendant] was not charged until more than seven years later, [the] defendant raised a facially viable statute of limitations defense, and the burden thus shifted to the [government] to prove beyond a reasonable doubt that the statute of limitations was tolled or otherwise inapplicable ." [Citations omitted.] ), appeal denied, 22 N.Y.3d 995, 3 N.E.3d 1169, 981 N.Y.S.2d 1 (2013). The cases cited in Crawford for the proposition that the statute of limitations is an affirmative defense do not contradict this lineage or otherwise undermine the distribution of burdens endorsed by the New York courts. Those cases merely acknowledge that, as an affirmative defense, the statute of limitations places some burden of proof on the defendant. They say nothing about the extent of that burden. See, e.g., State v. Coleman, 202 Conn. 86, 90, 519 A.2d 1201 (1987) (addressing whether statute of limitations defense " 'terminates a separate and distinct proceeding' " from underlying criminal action or whether it "confers . a statutory right not to be prosecuted" for final judgment purposes under State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 [1983] ); State v. Littlejohn, 199 Conn. 631, 640, 508 A.2d 1376 (1986) (considering whether "to treat the statute of limitations as jurisdictional and hence nonwaivable [or] as an affirmative defense and hence waivable"); see also United States v. Karlin, 785 F.2d 90, 92-93 (3d Cir. 1986) ("in criminal cases the statute of limitations does not go to the jurisdiction of the court but is an affirmative defense that will be considered waived if not raised . before or at trial"), cert. denied, 480 U.S. 907, 107 S.Ct. 1351, 94 L.Ed.2d 522 (1987). See, e.g., General Statutes § 53a-13(a) (affirmative defense to prosecution if defendant "lacked substantial capacity . either to appreciate the wrongfulness of his conduct or to control his conduct within the requirements of the law"); General Statutes § 53a-16b (affirmative defense for coparticipant in firearm offense if defendant was unarmed and "had no reasonable ground to believe that any other participant was armed"); General Statutes § 53a-67(a) (affirmative defense for sexual offenses involving mentally incapacitated or physically helpless victim, or victim impaired because of mental disability or disease, if defendant did not know that victim suffered from such condition); General Statutes § 53a-67(b) (affirmative defense for certain sex offenses if defendant and victim lived together by mutual consent in relationship of cohabitation); General Statutes § 53a-110(3) (affirmative defense to criminal trespass if defendant reasonably believed he would have been licensed to enter or remain on premises); General Statutes § 53a-134(a) (affirmative defense to first degree robbery if weapon used or displayed in robbery was not weapon from which shot could be discharged); General Statutes § 53a-190(b) (affirmative defense to charge of bigamy if defendant reasonably believed that prior spouse was dead or did not know that other person was legally married); General Statutes § 53a-196g (affirmative defense to charge of possessing child pornography if defendant possessed fewer than three pornographic images, did not knowingly take steps to possess such images, and promptly destroyed them or turned them over to authorities upon discovery); but see General Statutes § 53a-104 (affirmative defense to burglary if building was abandoned); General Statutes § 53a-110(1) (affirmative defense to criminal trespass if building was abandoned). At oral argument, the state contended that the rule in Crawford should be viewed as recognizing an exception to a general rule that prosecution commences upon the issuance of an arrest warrant, and because such an exception benefits the defendant, it should be the defendant's burden to prove that the delay was unreasonable. It is unlikely, however, that the legislature ever intended to allow the statute of limitations to be tolled simply by the issuance of a warrant without further efforts to apprise the defendant of the warrant's existence. Doing so would contravene the policy of notice fundamental to statutes of limitations. See, e.g., State v. Almeda, 211 Conn. 441, 446, 560 A.2d 389 (1989). Crawford is more properly viewed as an exception to the rule that a defendant must have notice of prosecution within the limitation period. In that sense, it benefits the state by extending the period of limitation beyond its stated term and must be applied judiciously. It may be, as the defendant argues, that Kruelski intended to incorporate certain facts presented in the dissent in that case, such that the three day delay was reasonable not merely because of the brevity of the delay but also because the warrant was executed on the same day that it was delivered to the officer responsible for its execution. Undoubtedly, most courts would find such facts to be compelling evidence of reasonableness. Indeed, we acknowledge that, as a general matter, the burden of justifying a brief delay of the sort at issue in Kruelski is not a weighty one. But the court in that case provided no analysis supporting its conclusion, and nothing in the decision in that case indicates that the majority based its decision on any facts other than the length of the delay. More in line with the approach that we adopted in Crawford is the approach that the Kansas Court of Appeals took in State v. Divers, Kansas Court of Appeals, Docket No. 106312, 2012 WL 4794603 (October 5, 2012), in which the court considered a twenty-four day delay between issuance and execution, including five days after the statute of limitations had expired. The court found that the delay was not unreasonable because "the [s]tate was much more diligent" in that case than in other Kansas cases, entering the warrant into the National Crime Information Center database and contacting the defendant's relatives and neighbors in an attempt to serve the warrant. Id. Thus, although the court ultimately decided that the twenty-four day delay was reasonable, it did so only after considering the diligence of the police. Id. ; see also State v. Gauthier, Superior Court, judicial district of New Haven, Docket No. N23N-MV-11-0074499-S, 2012 WL 5992689 (September 11, 2012) (delay of forty-nine days after statute of limitations expired was not unreasonable because officers "maintained diligent attention to [the] case" and attempted to serve warrant as soon as officer was aware it had been signed). Aside from Kruelski and State v. Suarez, Superior Court, judicial district of New London, Docket No. MV-99-0639258-S (November 23, 1999) (25 Conn. L. Rptr. 647, 647-48, 1999 WL 1125413 ) (reviewing delay of more than five months but not considering whether it was per se reasonable), the shortest overall delay from issuance of an arrest warrant to its execution was approximately thirteen months, including forty-nine days after the expiration of the statute of limitations. See State v. Gauthier, Superior Court, judicial district of New Haven, Docket No. N23N-MV-11-0074499-S, 2012 WL 5992689 (September 11, 2012). But delays that have been deemed to be reasonable have been as long as fourteen years. See State v. Henriquez, Superior Court, judicial district of New Haven, Docket Nos. CR-09-96308 and CR-09-96309, 2011 WL 782697 (February 4, 2011) (delay between 1995 and 2009 due to defendant's own evasive actions in leaving state and living under assumed name). Although other jurisdictions with similar laws have found overall delays of between seventy-five and eighty-four days to be unreasonable; see, e.g., State v. Long, 276 Kan. 297, 302-304, 75 P.3d 1217 (2003) (state failed to create record justifying seventy-five delay) State v. Dozal, 31 Kan.App.2d 344, 345, 348, 65 P.3d 217 (2003) (in case involving eighty-four day delay, mailing letter to defendant notifying him of arrest warrant and requesting that he travel to Sheriff's Department to be arrested "cannot be held to be a bona fide effort to serve a warrant"); in Connecticut, the shortest overall delay found to be unreasonable lasted more than one year. See State v. Kader, Superior Court, judicial district of New Haven, Docket No. N23N-MV-13-081829-S (April 26, 2013) (55 Conn. L. Rptr. 925, 926, 2013 WL 2132093 ) (delay of fifteen months, including almost three months after expiration of statute of limitations). In this case, there is no indication that the delay in the execution of the warrant was demonstrably prejudicial to the defendant. Indeed, at trial, the defendant declined to pursue a due process claim because he felt that " 'having investigated, [he did not] have any evidence to put on' " regarding prejudice. Model Penal Code § 1.06(5), the provision that this court adopted in Crawford, provides: "A prosecution is commenced either when an indictment is found [or an information filed] or when a warrant or other process is issued, provided that such warrant or process is executed without unreasonable delay." Model Penal Code and Commentaries, supra, § 1.06(5), p. 84. Significantly, thousands of new warrants are issued each month in Connecticut, and the execution of those warrants is only one of many competing demands placed on police departments throughout the state. See, e.g., Judicial Branch, State of Connecticut, Statistics/Reports, Arrest Warrants, available at http://jud.ct.gov/statistics/FTA_VOPS3rdquarter2016-2017.pdf (data regarding failure to appear, violation of probation, and order to incarcerate warrants); see also Luurtsema v. Commissioner of Correction, 299 Conn. 740, 769 n.28, 12 A.3d 817 (2011) (court may take notice of government statistics). Properly contextualized, such statistics may well provide evidence of reasonableness in a particular case. At the same time, we agree with the Appellate Court that "[t]he mere fact that a police department is 'a very busy urban police department' is not enough for it to avoid its obligation to serve the warrants in a timely manner." State v. Woodtke, supra, 130 Conn.App. at 744, 25 A.3d 699.

12496960

Sandhya DESMOND v. YALE-NEW HAVEN HOSPITAL, INC., et al.

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

2018-04-17

AC 39157

665

674

185 A.3d 665

185

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

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

Fastcase

Sandhya DESMOND v. YALE-NEW HAVEN HOSPITAL, INC., et al.

Sandhya DESMOND v. YALE-NEW HAVEN HOSPITAL, INC., et al. AC 39157 Appellate Court of Connecticut. Argued January 30, 2018 Officially released April 17, 2018 Eric M. Desmond, New Haven, for the appellant (plaintiff). Phyllis M. Pari, New Haven, with whom was Angelica L. Mack, for the appellees (defendants). Sheldon, Keller and Bright, Js.

4102

25955

SHELDON, J. The plaintiff, Sandhya Desmond, appeals from the judgment of the trial court dismissing her complaint against the defendants, Yale-New Haven Hospital, Inc. (hospital), and Yale-New Haven Health Services, Inc., alleging statutory theft, common-law fraud, violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., breach of contract, and statutory negligence. The plaintiff claims that the court improperly (1) determined that it lacked jurisdiction over her claim for statutory theft because the exclusivity provision of the Workers' Compensation Act (act), General Statutes § 31-275 et seq., barred her from bringing such a claim in the Superior Court, and (2) denied her request for leave to amend her complaint to add a claim for retaliatory discrimination pursuant to General Statutes § 31-290a. We affirm in part and reverse in part the judgment of the trial court. This court set forth the following undisputed factual and procedural history in an earlier appeal brought by this plaintiff, Desmond v.Yale-New Haven Hospital, Inc. , 138 Conn. App. 93, 50 A.3d 910 ( Desmond I ), cert. denied, 307 Conn. 942, 58 A.3d 258 (2012). "At all times relevant to this appeal, the plaintiff was an employee of the hospital. On December 30, 2004, she was injured in the course of her employment. According to the plaintiff, she suffered a spill-related fall while at work and subsequently was diagnosed with bilateral, acute post-traumatic carpal tunnel injuries. Her physicians have advised her that, absent medical treatment, she permanently will be unable to use her hands. "Subsequently, she filed a workers' compensation claim with regard to her injury, and the defendants accepted the claim. On March 6, 2008, she filed a federal action in United States District Court for the District of Connecticut, in which she alleged various claims under state law and the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. On March 23, 2009, the District Court granted the defendants' motion to dismiss as to the plaintiff's state law claims, allowing the action to proceed only on her claim under the Americans with Disabilities Act. "On May 20, 2010, the plaintiff filed in the Superior Court the operative complaint in th[is] . case. The complaint contained ten counts, alleging against each of the defendants workers' compensation fraud, statutory negligence, breach of contract, unfair and deceptive acts and practices in violation of CUTPA and delay in the delivery of benefits under the act in violation of the plaintiff's state constitutional right to due process. The complaint alleged that the defendants had made various filings with the [W]orkers' [C]ompensation [C]ommission (commission) in a bad faith and fraudulent attempt to delay treatment. The complaint alleged that these bad faith attempts to delay treatment caused the plaintiff's condition to worsen, as she did not receive necessary treatment. "On June 7, 2010, the defendants filed a motion to dismiss, alleging that the exclusivity provision of the act barred the action and that the plaintiff had failed to exhaust her administrative remedies under the act. The court granted the defendants' motion to dismiss on December 16, 2010. Relying on our Supreme Court's decision in DeOliveira v. Liberty Mutual Ins. Co. , 273 Conn. 487, 870 A.2d 1066 (2005), the court held that the plaintiff's claims did not allege conduct that was sufficiently egregious to remove the claims from the exclusive jurisdiction of the commission. The plaintiff filed . [an] appeal on January 20, 2011." Desmond I , supra, 138 Conn. App. at 95-96, 50 A.3d 910. On appeal in Desmond I , "the plaintiff claim[ed] that the court improperly held that it lacked jurisdiction over her claims because the exclusivity provision of the act barred her from bringing an action in the Superior Court. The plaintiff argue[d] that the court erroneously determined that its analysis was controlled by DeOliveira . and, instead, maintain[ed] that General Statutes § 31-290c establishes a civil cause of action over which the commission lacks jurisdiction. In the alternative, the plaintiff argue[d] that, if DeOliveira d[id] apply and actions under § 31-290c ordinarily must be brought before the commission, the [trial] court improperly held that the present case did not involve egregious conduct that warranted an exception from the general rule of exclusivity." Id., at 96-97, 50 A.3d 910. This court rejected both of the plaintiff's arguments, holding that it was "clear that the plaintiff's claimed injuries allegedly caused by the defendants' bad faith delays in medical treatment, arose out of and in the course of the workers' compensation claims process" and thus that those injuries "fall within the jurisdiction of the commission." Id., at 102, 50 A.3d 910. This court further held that even if the plaintiff's allegations were afforded "their most damaging interpretation, the defendants' conduct was not on the level of egregious behavior that . could provide an exception to the exclusivity provision." Id., at 103, 50 A.3d 910. Accordingly, this court affirmed the judgment of the trial court dismissing the plaintiff's action in Desmond I . On October 3, 2013, the plaintiff filed her amended complaint in the present action, wherein she again set forth ten counts against the defendants, claiming statutory theft, common-law fraud, violation of CUTPA, breach of contract and statutory negligence. The defendants moved to strike all of the plaintiff's claims on the ground, inter alia, that they are barred by the exclusivity provision of the act, and thus that the trial court had no jurisdiction over them. The plaintiff filed an objection, arguing, inter alia, that her claims were not barred by the exclusivity of the act. On August 25, 2014, the court, Nazzaro, J. , heard oral argument on the defendants' motion and the plaintiff's objection thereto. By way of memorandum of decision filed on November 26, 2014, the court granted the defendants' motion to strike the plaintiff's entire complaint on the ground that all of the plaintiff's claims fell within the exclusive jurisdiction of the commission. The court reasoned that the alleged misconduct of the defendants, which the court found to be "identical to that alleged in Desmond [I ]... but for the addition of some conduct by the defendants postdating the prior suit," was not so egregious to invoke the exception to exclusivity. The plaintiff did not appeal from the trial court's ruling striking her complaint. Rather, on December 11, 2014, pursuant to Practice Book § 10-44, the plaintiff, in her view, as advanced before this court, filed a substitute complaint "in an effort to plead additional facts and to amplify the allegations such that viability of the . [General Statutes] § 52-564 [statutory theft] claim (and associated claims) would be sufficient to allow the claim to proceed to the merits." On February 5, 2015, the plaintiff filed a request for leave to amend her substitute complaint, pursuant to Practice Book § 10-60, to incorporate a claim for retaliatory discrimination pursuant to General Statutes § 31-290a. The defendants filed an objection to the plaintiff's request for leave to amend on two grounds. First, the defendants argued that the proposed addition of a § 31-290a claim was untimely and prejudicial. Second, the defendants argued that the proposed addition of a § 31-290a claim was futile because she already had asserted such a claim to the commission, and thus she was barred from bringing it again in an action before the court. On April 23, 2015, the court, Nazzaro, J. , denied the plaintiff's request for leave to amend, and sustained the defendants' objection thereto, stating: "The amendment is improper. See court's previous ruling on [the defendants'] motion to strike." On May 4, 2015, the plaintiff filed a motion for reargument and reconsideration. The court heard reargument on June 22, 2015, and issued a memorandum of decision on October 7, 2015, denying reconsideration of its denial of the plaintiff's request for leave to amend. On May 7, 2015, the defendants filed a request to revise the plaintiff's substitute complaint, which she had filed on December 11, 2014. The defendants sought to have the plaintiff's entire substitute complaint deleted because the allegations of the substitute complaint were substantially similar to those contained in the plaintiff's previously stricken complaint and the allegations added to the substitute complaint failed to cure the deficiencies of the earlier complaint. On June 8, 2015, the plaintiff filed two separate objections to the defendants' request to revise. In one of her objections, she argued that the court "simply lacked the authority" to strike her § 52-564 claim on the basis of exclusivity because the allegations set forth in her December 11, 2014 complaint were sufficiently egregious that the defendant's alleged conduct that "bears no rational relation to a legitimate challenge to the plaintiff's workers' compensation claim; is not activity intrinsic to the workers' compensation claims process; and is conduct that is separate and apart from nonpayment of benefits." The plaintiff further argued: "[B]y the factual allegations pled, it should be understood, to the extent exclusivity might apply to certain conduct, that the defendants either (a) intended both the acts alleged and the injurious consequences of those acts or (b) intended the acts alleged and knew that the injury/injuries sustained was/were substantially certain to occur. The defendants' conduct that falls into either of these categories means that the plaintiff has escaped the exclusivity of the act." (Emphasis omitted; footnote omitted; internal quotation marks omitted.) The plaintiff also argued that the defendants were not entitled to exclusivity because they failed to comply with "the self-insurance requirements upon their application for self-insured status." In her other objection to the defendants' request to revise, the plaintiff argued that all of her claims arose from statutory theft under § 52-564, and, on that basis, they were not subject to exclusivity. The plaintiff also argued that she had added factual allegations to her complaint to cure the deficiencies relied upon by the trial court in previously striking her complaint. The plaintiff argued that the conduct that she alleged was not "intrinsic to the claims process," as found by the court when striking her complaint. In so doing, she set forth several instances of said conduct, featuring additional allegations against the defendants that she claims to have been so egregious as to remove her claims from exclusivity. As examples of such allegations, the plaintiff cited to allegations that the defendants had: aggressively surveilled upon her and members of her family; fabricated various allegations to the commission in an attempt to have her medical treatment terminated; fabricated information to her various medical providers; and revoked authorization for medical treatment and medication based upon false pretenses. In sum, the plaintiff argued: "As to allegations made pursuant to . § 52-564, exclusivity is inapplicable. As to allegations premised upon conduct that is violative of . § 52-564, they are beyond the protection of exclusivity. As to allegations that may be within the exclusivity provision of the act, the conduct alleged in the December 11, 2014 complaint-both new and prior allegations and rationale-is beyond the exclusivity of the . act." On March 4, 2016, the court, Ecker, J. , issued an order overruling the plaintiff's objections to the defendants' request to revise and rendered judgment dismissing her complaint. In so doing, the court held, inter alia: "[I]t is the court's opinion that the substitute complaint is not, in substance, materially different from the . stricken . complaint. In other words, the new allegations in the substitute complaint do not cure the legal deficiencies that caused Judge Nazzaro to strike the [amended] complaint. The substitute complaint contains many more pages of allegations, but those allegations, in this court's view, do not change the nature or character of the underlying claims in a manner that would alter the outcome of Judge Nazzaro's memorandum of decision striking the [amended] complaint." The court also explained that it was disinclined to revisit Judge Nazzaro's decision striking the plaintiff's complaint, but that, even if it did so, it would agree that the plaintiff's allegations could not overcome the exclusivity of the act. The plaintiff subsequently sought reargument, which the court denied. This appeal followed. On appeal, the plaintiff claims that the trial court erred in determining that her claims were barred by the exclusivity of the act. She also claims that the trial court erred in denying her request for leave to amend her complaint to add a retaliation claim pursuant to § 31-290a. We address each of the plaintiff's claims in turn. I The plaintiff first claims that the court erred in determining that her claims were barred by the exclusivity of the act. "[A]fter a court has granted a motion to strike, [a party] may either amend his pleading [pursuant to Practice Book § 10-44 ] or, on the rendering of judgment, file an appeal.... The choices are mutually exclusive [as the] filing of an amended pleading operates as a waiver of the right to claim that there was error in the [granting] of the [motion to strike] the original pleading.... Stated another way: When an amended pleading is filed, it operates as a waiver of the original pleading. The original pleading drops out of the case and although it remains in the file, it cannot serve as the basis for any future judgment, and previous rulings on the original pleading cannot be made the subject of appeal.... "If the plaintiff elects to replead following the granting of a motion to strike, the defendant may take advantage of this waiver rule by challenging the amended complaint as not materially different than the [stricken] . pleading that the court had determined to be legally insufficient. That is, the issue [on appeal becomes] whether the court properly determined that the [plaintiff] had failed to remedy the pleading deficiencies that gave rise to the granting of the [motion] to strike or, in the alternative, set forth an entirely new cause of action. It is proper for a court to dispose of the substance of a complaint merely repetitive of one to which a demurrer had earlier been sustained.... Furthermore, if the allegations in a complaint filed subsequent to one that has been stricken are not materially different than those in the earlier, stricken complaint, the party bringing the subsequent complaint cannot be heard to appeal from the action of the trial court striking the subsequent complaint.... The law in this area requires the court to compare the two complaints to determine whether the amended complaint advanced the pleadings by remedying the defects identified by the trial court in granting the earlier motion to strike." (Citations omitted; internal quotation marks omitted.) Lund v. Milford Hospital, Inc. , 326 Conn. 846, 850-52, 168 A.3d 479 (2017). "Factual revisions or additions are necessary; mere rewording that basically restate[s] the prior allegations is insufficient to render a complaint new following the granting of a previous motion to strike." (Internal quotation marks omitted.) Id., at 852-53, 168 A.3d 479. "[A]ppellate review of this comparative process is plenary because it considers the trial court's interpretation of the pleadings." Id., at 851, 168 A.3d 479 n.5. The plaintiff argues that the trial court erred in determining that her claims were barred by the exclusivity of the workers' compensation act because claims brought pursuant to § 52-564 are not within the exclusive jurisdiction of the commission. The determination that her claims were so barred was made by the court when it struck her amended complaint. The plaintiff did not file an appeal from that determination, but, instead, filed a substitute complaint pursuant to Practice Book § 10-44 in an attempt to cure the deficiencies found by the trial court in striking her amended complaint. The trial court determined, however, that her substitute complaint did not set forth allegations that cured those deficiencies, and that it was not materially different from her previously stricken amended complaint. Thus, before we can consider the plaintiff's claim that the court erred in determining that her claims were barred by the exclusivity of the act, the plaintiff must establish that the trial court erred in concluding that her substitute complaint was not materially different from her amended complaint, and thus that she had failed to cure the deficiencies found by the trial court in striking the amended complaint and, as a result, had waived her right to appeal from the determination that her claims were barred by the exclusivity of the act. The plaintiff's brief to this court fails to address the trial court's determination that her substitute complaint was not materially different from her previously stricken amended complaint, and thus that the allegations set forth in the substitute complaint did not cure the legal deficiencies that led to the previous striking of her amended complaint. In her reply brief, she argues that this court must undertake a de novo review of the two complaints to determine whether the "trier of fact . could interpret the additional [thirty-five] pages as including allegations sufficient to establish egregiousness and intent." Those additional pages, actually forty-one in total, contain numerous legal citations, legal arguments and legal conclusions, plus several factual allegations that are merely duplicative of the allegations set forth in her amended complaint. The plaintiff's argument concerning the additional pages added to her substitute complaint is devoid of any specific discussion as to which allegations set forth in those pages cured the deficiencies that led the trial court to strike her amended complaint. Similarly, the plaintiff has provided no legal authority or analysis in support of such an argument. The plaintiff nevertheless argues that this court will find that the defendants' argument that her substitute complaint is not materially different from her previously stricken amended complaint is without merit based upon our own de novo comparison of the two pleadings. "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." (Citations omitted; internal quotation marks omitted.) State v. Buhl , 321 Conn. 688, 724, 138 A.3d 868 (2016). "Writing a compelling legal argument is a painstaking, time-consuming task. Good legal analysis is premised on knowing the controlling rules of law. An effective appellate advocate must apply the rules of law to the facts at hand by applying or distinguishing existing legal precedent.... To write a good brief and to comply with the rules of practice, counsel must state the rules of law, [and] provide citations to legal authority that support the claims made ." (Internal quotation marks omitted.) Id., at 729, 138 A.3d 868. Because the plaintiff failed to argue in her initial brief to this court-and only did so cursorily in her reply brief-that the trial court erred in concluding that she failed, in her substitute complaint, to cure the deficiencies found by the court in her previously stricken amended complaint, we conclude that the plaintiff's claim is inadequately briefed, and thus we decline to review that claim. II The plaintiff also claims that the trial court erred in denying her request for leave to amend her substitute complaint, pursuant to Practice Book § 10-60, in order to add a claim for retaliatory discrimination under § 31-290a. We agree. "Whether to allow a party to amend the pleadings under Practice Book § 10-60 (a) rests within the discretion of the trial court.... 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.... 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." (Citations omitted; internal quotation marks omitted.) Martinez v. New Haven , 328 Conn. 1, 15 n.13, 176 A.3d 531, - A.3d - (2018). The plaintiff filed a request for leave to amend her substitute complaint on February 5, 2015, to which the defendants filed an objection. The trial court, Nazzaro, J. , denied the plaintiff's request and sustained the defendants' objection thereto. In so ruling, the court stated: "The amendment is improper. See court's previous ruling on [the defendants'] motion to strike." The plaintiff thereafter filed a motion to reargue and for reconsideration, which the court also denied. In the latter ruling, the trial court explained its earlier ruling as follows: "The [proposed] amended complaint contains the same ten counts [as the substitute complaint]. The [proposed] amended complaint also contains identical allegations concerning the plaintiff's retaliation complaint under § 31-290a.... The [proposed] amended complaint does not specifically raise a retaliation claim, but rather adds a forty-one page 'Preliminary Statement,' which contains numerous statements of law, discussions of legislative history, and a handful of factual allegations. The 'Preliminary Statement' was incorporated into each existing count." The court concluded that the proposed amended complaint did not address "substantive matters brought out in the court's earlier memorandum of decision granting the defendants' motion to strike" and the additional allegations set forth by the plaintiff, and its memorandum in support of the proposed amended complaint, "added nothing to the plaintiff's cause." On appeal, the plaintiff claims, inter alia, that the trial court erred in denying her request for leave to amend because it considered the wrong proposed amended complaint in so ruling. We agree. The plaintiff's February 5, 2015, proposed amended complaint contained eleven counts, not ten counts, as recited by the trial court. The additional count, which was added as count one of the proposed amended complaint, purported to plead a cause of action for retaliatory discrimination pursuant to § 31-290a. The proposed amended complaint also sought relief pursuant to § 31-290a, unlike the previously filed substitute complaint. It is apparent from the trial court's decision denying the plaintiff's motion to reargue, as set forth above, that the court considered the plaintiff's ten count substitute complaint, not the eleven count proposed amended complaint that accompanied her request for leave to amend, when ruling on that request. Because the trial court considered the wrong complaint when it denied the plaintiff's request for leave to amend, we cannot conclude that the court properly exercised its discretion in so ruling. The judgment is reversed only as to the plaintiff's request for leave to amend her complaint to add a § 31-290a claim, and the case is remanded for further proceedings on that request and the defendants' objection thereto. The judgment is affirmed in all other respects. In this opinion the other judges concurred. The plaintiff also claims that the trial court violated her right to equal protection when it ruled adversely to her and ignored binding precedent in so doing. Accepting the plaintiff's rationale, every claim that a trial court misapplied the law would be transformed into an equal protection claim. That clearly is not the law. The defendants also argued that the plaintiff's claims should be stricken because the accidental failure of suit statute, General Statutes § 52-592, did not apply to them and they were barred by the doctrine of res judicata. The plaintiff responded to all of the defendants' arguments in her objection to the motion to strike. Because the court determined that the plaintiff's claims were barred by the exclusivity of the act, the court did not reach the parties' additional arguments. The plaintiff also filed a request for articulation, which the court denied as improperly filed. The defendants argue that the plaintiff's claim is moot because she has filed two other § 31-290a actions in the Superior Court. Specifically, the defendants argue that those other actions "provide the plaintiff with an opportunity to obtain the same legal redress that would be obtained in this case if the [trial] court's ruling denying the motion to amend were overturned here." That is not the test for mootness. Because we can afford the plaintiff relief, as set forth herein, we disagree with the defendants. We make no judgment as to the legal sufficiency of that count.

12510887

RECLAIMANT CORP. v. William J. DEUTSCH et al.

Reclaimant Corp. v. Deutsch

2019-08-06

SC 20133

976

991

211 A.3d 976

211

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

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

Fastcase

RECLAIMANT CORP. v. William J. DEUTSCH et al.

RECLAIMANT CORP. v. William J. DEUTSCH et al. SC 20133 Supreme Court of Connecticut. Argued November 7, 2018 Officially released August 6, 2019 David S. Golub, with whom, on the brief, was Jonathan M. Levine, Stamford, for the appellant (plaintiff). Howard Graff, pro hac vice, with whom, on the brief, were Stephen G. Walko and Andrea C. Sisca, Greenwich, for the appellees (defendants). McDonald, D'Auria, Mullins, Kahn, Ecker and Vertefeuille, Js.

8285

51615

ECKER, J. The narrow issue presented by this appeal is whether the statute of limitations of the state of Connecticut or the state of Delaware governs the unjust enrichment claims brought by the plaintiff, Reclaimant Corp., against the defendants, William J. Deutsch and Laurence B. Simon, seeking recovery for alleged overpayments issued to the defendants by the plaintiff's putative predecessor in interest pursuant to a limited partnership agreement. The trial court rendered summary judgment in favor of the defendants, concluding that the plaintiff's unjust enrichment claims were governed by Delaware law and were time-barred under the three-year statute of limitations in the Delaware Revised Uniform Limited Partnership Act (DRULPA), Del. Code Ann. tit. 6, § 17-607 (c) (2005). On appeal, the plaintiff contends that summary judgment was improper because Connecticut law governs the timeliness of its unjust enrichment claims and that those claims timely were filed under Connecticut law. We conclude that Delaware law governs the substantive rights and liabilities of the parties arising out of the limited partnership agreement but that Connecticut law governs matters of judicial administration and procedure. We further conclude that, because the plaintiff's unjust enrichment claims have a common-law origin, the limitation period properly is "characterized as procedural because it functions only as a qualification on the remedy to enforce the preexisting right." Baxter v. Sturm, Ruger & Co. , 230 Conn. 335, 347, 644 A.2d 1297 (1994). Thus, Connecticut law, rather than Delaware law, controls the timeliness of the plaintiff's claims. We therefore reverse the judgment of the trial court and remand the case for further proceedings. I The record reveals the following relevant facts and procedural history. In 2007, the defendants entered into a limited partnership agreement with SV Special Situations Fund LP (SV Fund), a Delaware limited partnership formed for the purpose of investing in and trading securities and other investments. In early 2008, the defendants redeemed their respective investments and withdrew from the partnership as of March 31, 2008. Deutsch received approximately 90 percent of the funds in his capital account, for a total distribution in the amount of $22,309,473.03, and Simon received approximately 90 percent of the funds in his capital account, for a total distribution in the amount of $2,176,785.80. By letters dated September 4, 2012, Scott A. Stagg, the director of SV Fund, informed each of the defendants that the "net asset value of your interest in the . Fund was . overstated [at the time you redeemed your investment], resulting in . overpayment ." Stagg alleged that Deutsch had received a total overpayment in the amount of $7,047,974.03 and that Simon had received a total overpayment in the amount of $724,557.80, and he demanded that the defendants return the alleged overpayments within thirty days. The defendants responded by requesting documentation and clarification of the alleged overpayments. The defendants also requested payment of the remaining funds in their capital accounts, which had been held back at the time of redemption. Specifically, Deutsch asked for the payment of $807,127.97 and Simon asked for the payment of $102,753. SV Fund was liquidated in February, 2013, and its claims against the defendants were assigned to the plaintiff. On May 8, 2013, the plaintiff filed a two-count complaint against the defendants, both of whom reside in Connecticut. In the first count, the plaintiff alleged that Deutsch had been "unjustly enriched as a result of receiving and retaining" the alleged overpayment in the amount of $7,047,974.03. In the second count, the plaintiff alleged that Simon had been "unjustly enriched as a result of receiving and retaining" the alleged overpayment in the amount of $724,557.80. The defendants moved to strike the complaint as time-barred under the three-year statute of limitations in § 17-607 (c) of DRULPA because "the distributions were made in 2008 and the complaint was not filed until 2013 ." The plaintiff opposed the defendants' motion to strike, contending that, "if any statute of limitations applies to the plaintiff's equitable unjust enrichment claims . it is [Connecticut's] six-year statute [of limitations applicable to contracts] set forth in [General Statutes] § 52-576 (a), and the plaintiff's claims are, therefore, not time-barred." The trial court determined that it was "inappropriate to decide this potentially dispositive issue within the context of a motion to strike" and, therefore, denied the defendants' motion. The defendants filed an answer denying that they had been unjustly enriched and raising the following affirmative defenses: (1) the plaintiff's claims are barred by § 17-607 (b) of DRULPA, "which specifies that a limited partner who unknowingly receives an alleged overpayment is not liable for returning the amount of that distribution"; (2) the plaintiff's claims are barred by the three-year statute of limitations in § 17-607 (c) of DRULPA; (3) the plaintiff's complaint fails to state a claim on which relief may be granted because SV Fund "could have prevented and/or addressed any potential alleged overpayments"; (4) the plaintiff's claims are barred by the three-year statute of limitations governing torts in General Statutes § 52-577 ; (5) the plaintiff "lacks standing because [it] has not established its right to bring a cause of action on behalf of SV Fund"; (6) the plaintiff "lacks standing because [it] has not established that SV Fund or its assignees have a right to bring a cause of action on behalf of 3V Capital Partners, LP"; (7) the plaintiff's claims are barred by the doctrine of laches due to its "inexcusable delay" in filing suit; (8) the plaintiff's claims are "barred by the doctrine of waiver"; (9) the plaintiff's claims are "barred by the doctrine of estoppel"; (10) the plaintiff's claims "are barred by the equitable doctrine of unclean hands"; (11) the plaintiff's claims "are barred by the doctrine of satisfaction and accord"; and (12) the plaintiff "failed to mitigate its damages, if any exist." The defendants also filed a counterclaim against the plaintiff on the basis of SV Fund's alleged failure to distribute the funds remaining in their capital accounts. The plaintiff moved for summary judgment on the defendants' second and fourth special defenses, contending that "Connecticut's statute of limitations law applies to the plaintiff's common-law unjust enrichment claims" and "Connecticut law provides that either no statute of limitations applies to an equitable action for unjust enrichment, or, at a minimum, that a six-year statute of limitations applies, and this action is timely under either measure." The defendants opposed the plaintiff's motion for summary judgment and moved for summary judgment on their first, second, third, fourth, and seventh special defenses. The essence of the defendants' argument was that the plaintiff's "contention that Connecticut law applies to [this] dispute is academic since neither Connecticut nor Delaware law . permit[s] parties to pursue unjust enrichment claims as a means to rewrite the express terms of a written agreement governing the payments at issue" and the plaintiff's unjust enrichment claims are time-barred under both Delaware and Connecticut law. The trial court's resolution of the parties' competing motions for summary judgment was guided largely by the fact that the limited partnership agreement contains a choice of law provision, which states: "This [a]greement and all rights and liabilities of the parties hereto shall be governed by and construed in accordance with the laws of the [s]tate of Delaware, without regard to its conflicts of law principles." The trial court observed that § 187 (1) of the Restatement (Second) of Conflict of Laws "requires that the law of the state chosen by the parties to govern their contractual rights and duties will be applied if the particular issue was one which the parties could have resolved by an explicit provision in their agreement directed to that issue." The trial court determined that the contractual choice of law provision here "expressly elects Delaware law for all issues regarding the parties' rights and liabilities including those set forth in [§] 17-607 (c) of . DRULPA." In arriving at its decision, the trial court rejected the plaintiff's contention that the choice of law provision governed the substantive law of the contract but not procedural matters like the applicable statute of limitations, reasoning that the "broad and clear" language of the contract "evidences an intent to include all issues (whether substantive or procedural) concerning rights, and all issues concerning liabilities, to be governed by Delaware law within the breadth of the choice of law election." Having determined that "the parties clearly and unambiguously elected to have Delaware law govern their relationship, even when it provides time limits on liabilities that are different [from] the time limits on liabilities that may be imposed by the state of Connecticut," the trial court granted the defendants' motion for summary judgment on their second special defense, denied the plaintiff's motion for summary judgment, and rendered judgment in favor of the defendants. The plaintiff filed an appeal with the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1. On appeal, the plaintiff claims that the trial court improperly rendered summary judgment in favor of the defendants because the choice of law provision in the limited partnership agreement "refers only to Delaware substantive law; it does not encompass Delaware procedural law," and the limitation period governing common-law claims properly is characterized as procedural rather than substantive. Alternatively, the plaintiff contends that, even if Delaware procedural law controls the timeliness of its claims, § 17-607 (c) of DRULPA is inapplicable because the defendants withdrew from the limited partnership in 2008 and, therefore, were not limited partners at the time the action was filed. Lastly, the plaintiff claims that its complaint was filed timely under Connecticut law because "unjust enrichment is either not subject to any statute of limitations at all (as an equitable claim) or is governed by the six-year [limitation] period [applicable to contracts] set forth in . § 52-576 (a)." The defendants respond that the judgment of the trial court should be affirmed because that court properly concluded that the limited partnership agreement expressly incorporated Delaware law, including the three-year limitation period in § 17-607 (c) of DRULPA. They also argue that Connecticut law requires the application of § 17-607 (c) because General Statutes § 34-38f (1) provides that "the laws of the state under which a foreign limited partnership is organized govern its organization and internal affairs and the liability of its limited partners." Alternatively, the defendants contend that, even if we were to conclude that Connecticut law, rather than Delaware law, governs the timeliness of the plaintiff's claims, the trial court's judgment nonetheless should be affirmed on the ground that the plaintiff's unjust enrichment claims are time-barred under either the three-year statute of limitations in § 52-577 or the doctrine of laches. Lastly, the defendants argue that the judgment of the trial court may be affirmed on the alternative ground that "the equitable remedy of unjust enrichment is unavailable where there is a written contract between the parties on the subject." II The applicable standard of review is not in dispute. " Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.... The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.... On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court.... Our review of the trial court's decision to grant the defendant's motion for summary judgment is plenary." (Citations omitted; internal quotation marks omitted.) Cogan v. Chase Manhattan Auto Financial Corp. , 276 Conn. 1, 6-7, 882 A.2d 597 (2005). It is well settled that "[c]hoice of law questions are subject to de novo review." Western Dermatology Consultants, P.C. v. VitalWorks, Inc. , 322 Conn. 541, 558, 153 A.3d 574 (2016) ; see also American States Ins. Co. v. Allstate Ins. Co. , 282 Conn. 454, 461, 922 A.2d 1043 (2007) (noting that "choice of law issues present questions of law over which our review is plenary"). Nor do the parties disagree about the fundamental starting point of the conflict of laws analysis, which requires initial resort to Connecticut conflict of laws rules. "In determining the governing law, a forum applies its own [conflict of laws] rules ." Gibson v. Fullin , 172 Conn. 407, 411, 374 A.2d 1061 (1977). The applicable Connecticut conflict of laws rule depends upon the nature of the plaintiff's claim. See Macomber v. Travelers Property & Casualty Corp. , 277 Conn. 617, 640, 894 A.2d 240 (2006) (applying different choice of law rules to tort and contract claims). This court previously has referred to unjust enrichment as both a tort and a quasi-contractual claim; however, we also have recognized, more accurately, that it is neither a species of tort nor contract but, rather, an equitable "means of recovery in restitution." Walpole Woodworkers, Inc. v. Manning , 307 Conn. 582, 587 n.9, 57 A.3d 730 (2012) (clarifying that unjust enrichment is a "noncontractual means of recovery in restitution"); see also Vertex, Inc. v. Waterbury , 278 Conn. 557, 573, 898 A.2d 178 (2006) ("[u]njust enrichment is, consistent with the principles of equity, a broad and flexible remedy," and there is "no other test than what, under a given set of circumstances, is just or unjust, equitable or inequitable, conscionable or unconscionable" [internal quotation marks omitted] ); Connecticut National Bank v. Chapman , 153 Conn. 393, 399, 216 A.2d 814 (1966) (noting that unjust enrichment "is essentially equitable," and, in order to recover in restitution under that doctrine, there is no requirement that "the party unjustly enriched should have been guilty of any tortious or fraudulent act"). Section 221 of the Restatement (Second), titled "Restitution," "is concerned with what law governs a person's right to recover from another, on grounds of fairness and good conscience, the amount by which the other has been unjustly enriched at his expense." 1 Restatement (Second), Conflict of Laws c. 8, topic 6, introductory note, p. 726 (1971). Section 221 provides in relevant part that "[i]n actions for restitution, the rights and liabilities of the parties with respect to the particular issue are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6." Id., § 221 (1), p. 727. Under subsection (2) of § 221, one of the "[c]ontacts to be taken into account in applying the principles of § 6" is "the place where a relationship between the parties was centered, provided that the receipt of enrichment was substantially related to the relationship." Id., § 221 (2) (a), p. 727. According to the commentary, "[t]he place where a relationship between the parties was centered, provided that this relationship was substantially related to the receipt of enrichment, is the contact that, as to most issues, is given the greatest weight in determining the state of the applicable law." Id., comment (d), pp. 729-30. For example, "[w]hen the enrichment was received in the course of the performance of a contract between the parties, the law selected by application of the rules of § 187-188 [of the Restatement (Second) ] will presumably govern one party's rights in restitution against the other. The applicable law will be that chosen by the parties if they have made an effective choice under the circumstances stated in § 187." Id., comment (d), p. 730. In the present case, the alleged unjust enrichment occurred in the course of the performance of the limited partnership agreement, and, therefore, we must turn to § 187 of the Restatement (Second) to resolve the conflict of law inquiry. Section 187 of the Restatement (Second) provides in relevant part that "[t]he law of the state chosen by the parties to govern their contractual rights and duties will be applied if the particular issue is one which the parties could have resolved by an explicit provision in their agreement directed to that issue." Id., § 187 (1), p. 561; see Elgar v. Elgar , 238 Conn. 839, 850, 679 A.2d 937 (1996) (noting that, under § 187, "parties to a contract generally are allowed to select the law that will govern their contract"). This "is a rule providing for incorporation by reference and is not a rule of choice of law. The parties, generally speaking, have power to determine the terms of their contractual engagements. They may spell out these terms in the contract. In the alternative, they may incorporate into the contract by reference extrinsic material which may, among other things, be the provisions of some foreign law. In such instances, the forum will apply the applicable provisions of the law of the designated state in order to effectuate the intention of the parties." 1 Restatement (Second), supra, § 187, comment (c), p. 563. The limited partnership agreement here contains a choice of law provision that provides: "This [a]greement and all rights and liabilities of the parties hereto shall be governed by and construed in accordance with the laws of the [s]tate of Delaware, without regard to its conflicts of law principles." Pursuant to this choice of law provision, as well as the other parts of the contract evidencing the signatories' intent "to form a limited partnership . in accordance with the provisions of [DRULPA]," we conclude that Delaware substantive law controls the plaintiff's unjust enrichment claims. This does not end our analysis, however, because it is well established that "in a choice of law situation the forum state will apply its own procedure ." Paine Webber Jackson & Curtis, Inc. v. Winters , 22 Conn. App. 640, 650, 579 A.2d 545, cert. denied, 216 Conn. 820, 581 A.2d 1055 (1990) ; see, e.g., Ferri v. Powell-Ferri , 326 Conn. 438, 447, 165 A.3d 1137 (2017) ("[a]lthough 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 [and standing] are governed by Connecticut law"); Montoya v. Montoya , 280 Conn. 605, 612 n.7, 909 A.2d 947 (2006) ("[a]lthough the agreement's choice of law provision dictates that the substance of the contract will be analyzed according to New York law, procedural issues such as the applicable standard of review are governed by Connecticut law"); People's United Bank v. Kudej , 134 Conn. App. 432, 438, 39 A.3d 1139 (2012) ("because the 1998 note and the guarantee contain choice of law clauses stating that they are to be governed and construed in accordance with Massachusetts law . we are guided by Massachusetts substantive law in deciding the defendant's claims, but we must apply the procedural laws of Connecticut"). This approach is consistent with § 122 of the Restatement (Second), which provides that "[a] court usually applies its own local law rules prescribing how litigation shall be conducted even when it applies the local law rules of another state to resolve other issues in the case." 1 Restatement (Second), supra, § 122, p. 350. As the commentary to that section explains, "[t]he forum has compelling reasons for applying its own rules" to procedural issues, even if the substantive law of another jurisdiction applies, because, "in matters of judicial administration, it would often be disruptive or difficult for the forum to apply the local rules of another state. The difficulties involved in doing so would not be repaid by a furtherance of the values that the application of another state's local law is designed to promote." Id., comment (a), p. 350. Additionally, "[p]arties do not usually give thought to matters of judicial administration before they enter into legal transactions," and, therefore, "the parties have no expectations as to such eventualities, and there is no danger of unfairly disappointing their hopes by applying the forum's rules in such matters." Id., p. 351. Even if the application of the forum's procedural rule would alter the outcome of a case, "the forum will usually apply its own rule if the issue primarily concerns judicial administration. The statute of limitations is a striking example of such an issue ." Id. In Baxter v. Sturm, Ruger & Co. , supra, 230 Conn. at 339, 644 A.2d 1297, we addressed whether a "statute of limitation[s] is procedural or substantive for choice of law purposes." We noted that it is "undisputed that . remedies and modes of procedure depend upon the lex fori" and that statutes of limitations typically are procedural because they "relate to the remedy as distinguished from the right." (Internal quotation marks omitted.) Id. ; see also Thomas Iron Co. v. Ensign-Bickford Co. , 131 Conn. 665, 668, 42 A.2d 145 (1945) ("[i]t is undisputed that, as a principle of universal application, remedies and modes of procedure depend upon the lex fori"). Nonetheless, a statute of limitations may be deemed substantive, rather than procedural, "if the limitation is so interwoven with . the cause of action as to become one of the congeries of elements necessary to establish the right ." (Internal quotation marks omitted.) Baxter v. Sturm, Ruger & Co. , supra, at 340, 644 A.2d 1297 ; see also Thomas Iron Co. v. Ensign-Bickford Co. , supra, at 668-69, 42 A.2d 145 (observing that, if "the remedial law of the foreign jurisdiction is inseparable from the cause of action," then "the lex loci and not the lex fori governs"). We determined that neither statutes of limitations nor statutes of repose are "substantive [or] procedural per se for choice of law purposes," but, rather, the characterization of the applicable limitation period "depends on the nature of the underlying right that forms the basis of the lawsuit. If the right existed at common law, then the [limitation period] is properly characterized as procedural because it functions only as a qualification on the remedy to enforce the preexisting right. If, however, the right is newly created by the statute, then the [limitation period] is properly characterized as substantive because the period of repose is so integral a part of the cause of action as to warrant saying that it qualifie[s] the right." (Internal quotation marks omitted.) Baxter v. Sturm, Ruger & Co. , supra, at 346-47, 644 A.2d 1297 ; see also 1 Restatement (Second), supra, § 143, p. 400 ("[a]n action will not be entertained in another state if it is barred in the state of the otherwise applicable law by a statute of limitations which bars the right and not merely the remedy"). Applying these principles to the facts at issue in Baxter , we held that the timeliness of the plaintiff's product liability claims was governed by Connecticut's statute of limitations, rather than Oregon's statute of repose, "in light of the [common-law] origin of the law of products liability ." Baxter v. Sturm, Ruger & Co. , supra, at 347, 644 A.2d 1297. Pursuant to Baxter , the procedural or substantive nature of the limitation period depends on whether the plaintiff's right to relief existed under Delaware common law. See id., at 341, 644 A.2d 1297 (examining Oregon law to determine whether plaintiff's claims existed at common law). Under Delaware law, unjust enrichment is a claim for restitution. See Fleer Corp. v. Topps Chewing Gum, Inc. , 539 A.2d 1060, 1062 (Del. 1988). The right to relief is not created by statute but, rather, derives from equitable principles under the common law. See, e.g., Schock v. Nash , 732 A.2d 217, 232 (Del. 1999) ("[u]njust enrichment is defined as the unjust retention of a benefit to the loss of another, or the retention of money or property of another against the fundamental principles of justice or equity and good conscience" [internal quotation marks omitted] ). Given the common-law origin of the plaintiff's unjust enrichment claims, we conclude that the limitation period "is properly characterized as procedural because it functions only as a qualification on the remedy to enforce the preexisting right." Baxter v. Sturm, Ruger & Co. , supra, 230 Conn. at 347, 644 A.2d 1297. Accordingly, Connecticut law, rather than Delaware law, governs the timeliness of the plaintiff's claims. The defendants contend that § 17-607 (c) of DRULPA is substantive, rather than procedural, because it extinguishes the liability of a limited partner after the expiration of three years. To support this contention, the defendants rely on Century City Doctors Hospital, LLC v. Friedman , 466 B.R. 1, 12-13 (Bankr. C.D. Cal. 2012), and Freeman v. Williamson , 383 Ill.App.3d 933, 322 Ill.Dec. 208, 890 N.E.2d 1127, 1133-34 (2008), both of which held that § 17-607 (c) is substantive because it is a statute of repose, not a statute of limitations. We agree with the courts in Century City Doctors Hospital, LLC , and Freeman that § 17-607 (c) properly is characterized as a statute of repose because it "clearly terminates the possibility of the limited partner's liability after a defined period of time, three years after receiving a distribution, regardless of whether a potential plaintiff knows of his or her cause of action." Century City Doctors Hospital, LLC v. Friedman , supra, at 13, quoting Freeman v. Williamson , supra, 322 Ill.Dec. 208, 890 N.E.2d at 1134 ; see Baxter v. Sturm, Ruger & Co. , supra, 230 Conn. at 341, 644 A.2d 1297 (recognizing that "statutes of repose differ in some respects from statutes of limitation" because they terminate "any right of action after a specific time has elapsed, regardless of whether there has as yet been an injury" [internal quotation marks omitted] ). Labeling the statute as such does not resolve the issue at hand, however, because this court in Baxter explicitly rejected the notion that "statutes of repose . are always substantive"; Baxter v. Sturm, Ruger & Co. , supra, at 341, 644 A.2d 1297 ; instead, concluding that statutes of repose should be treated the same as statutes of limitations for choice of law purposes because they both "serve the same public policy of avoiding the litigation of stale claims." Id., at 344, 644 A.2d 1297. Under Connecticut's choice of law rules, the dispositive inquiry is not whether the statute at issue properly is characterized as a statute of repose or a statute of limitations, but whether the "nature of the underlying right that forms the basis of the lawsuit" existed at common law. Id., at 347, 644 A.2d 1297. Because Delaware law recognizes a common-law claim for unjust enrichment, § 17-607 (c) of DRULPA is a procedural limitation on that preexisting right to relief. The defendants next contend that the choice of law provision in the limited partnership agreement is worded broadly to include all of Delaware's procedural law as well as its substantive law. We disagree. "Choice of law provisions in contracts are generally understood to incorporate only substantive law, not procedural law such as statutes of limitation[s]." Federal Deposit Ins. Corp. v. Petersen , 770 F.2d 141, 142 (10th Cir. 1985). Thus, "[a]bsent an express statement that the parties intended another state's limitations statute to apply, the procedural law of the forum governs time restrictions ." Cole v. Mileti , 133 F.3d 433, 437 (6th Cir.), cert. denied, 525 U.S. 810, 119 S. Ct. 42, 142 L. Ed. 2d 32 (1998) ; see also Gluck v. Unisys Corp. , 960 F.2d 1168, 1179 (3d Cir. 1992) ("[c]hoice of law provisions in contracts do not apply to statutes of limitations, unless the reference is express"); Des Brisay v. Goldfield Corp. , 637 F.2d 680, 682 (9th Cir. 1981) (Choice of law "clauses generally do not contemplate application to statutes of limitation. [Limitation] periods are usually considered to be related to judicial administration and thus governed by the rules of local law, even if the substantive law of another jurisdiction applies."); Portfolio Recovery Associates, LLC v. King , 14 N.Y.3d 410, 416, 927 N.E.2d 1059, 901 N.Y.S.2d 575 (2010) ("Choice of law provisions typically apply to only substantive issues . and statutes of limitations are considered procedural because they are deemed as pertaining to the remedy rather than the right . There being no express intention in the agreement that Delaware's statute of limitations was to apply to this dispute, the choice of law provision cannot be read to encompass that [limitation] period." [Citations omitted; internal quotation marks omitted.] ). The choice of law provision in the limited partnership agreement does not mention, much less expressly incorporate, the three-year limitation period in § 17-607 (c) of DRULPA. A "standard choice of law provision," such as the one at issue in the present case, which does not mention the procedural law of another state, "will not be interpreted as covering a statute of limitations." Federal Deposit Ins. Corp. v. Peterson , supra, 770 F.2d at 142-43 ; see also Generali-U.S. Branch v. Lachel & Associates, Inc. , Docket No. 3:16-cv-595-DJH, 2017 WL 6999998, *3 (W.D. Ky. August 7, 2017) (holding that "the phrase 'governed by' is not an express statement indicating that Indiana law should apply to the statute of limitations"); American Energy Technologies, Inc. v. Colley & McCoy Co. , Docket No. CIV A. 98-398 MMS, 1999 WL 301648, *2 (D. Del. April 15, 1999) (holding that choice of law provision, providing in relevant part that "[t]he agreement shall be interpreted according to the laws of the [c]ommonwealth of Virginia," did "not expressly provide for the laws of the [c]ommonwealth of Virginia to apply to the statute of limitations," and, therefore, "Virginia's five-year statute of limitations for contract cases [was] inapplicable"). Finally, the defendants contend that § 17-607 (c) of DRULPA must apply to the plaintiff's unjust enrichment claims pursuant to the Connecticut Uniform Limited Partnership Act (CULPA), General Statutes § 34-9 et seq., which provides in relevant part that "[s]ubject to the Constitution of this state . the laws of the state under which a foreign limited partnership is organized govern its organization and internal affairs and the liability of its limited partners ." General Statutes § 34-38f (1). Again, we disagree. Consistent with CULPA and the choice of law provision in the limited partnership agreement, Delaware law governs the substantive liability of the defendants with respect to the plaintiff's unjust enrichment claims. As we have explained, however, the time in which to file a Delaware unjust enrichment action is a matter of judicial administration and procedure that is controlled by Connecticut law. Therefore, Connecticut law governs the timeliness of the plaintiff's claims. III Having concluded that Connecticut law governs the timeliness of the plaintiff's unjust enrichment claims, we next address the defendants' contention that the judgment of the trial court may be affirmed on the alternative ground that the plaintiff's claims are barred by the three-year statute of limitations in § 52-577 generally applicable to tort actions. The plaintiff responds that § 52-577 is inapplicable to the present case because unjust enrichment is not a tort but an equitable claim for relief. The plaintiff contends that its unjust enrichment claims are not subject to any limitation period at all or, in the alternative, are subject to the six-year statute of limitations applicable to contract actions. See General Statutes § 52-576 (a). As a preliminary matter, we note that the trial court did not reach the issue of which statute of limitations, if any, governs the plaintiff's unjust enrichment claims under Connecticut law. When a trial court has not ruled on all of the grounds raised in a motion for summary judgment, we have the discretion either to "remand for further trial court proceedings" or "to consider whether, as a matter of law, the trial court's judgment can be sustained on . [alternative] grounds." Skuzinski v. Bouchard Fuels, Inc. , 240 Conn. 694, 703, 694 A.2d 788 (1997) ; see also Vollemans v. Wallingford , 103 Conn. App. 188, 219, 928 A.2d 586 (2007) ("[a]lthough the trial court did not rule on those [alternative] grounds for summary judgment, it is within our discretion to do so on appeal"), aff'd, 289 Conn. 57, 956 A.2d 579 (2008). Because the issue presents a pure question of law that has been briefed extensively by the parties on appeal, the interest of judicial economy induces us to consider whether the plaintiff's unjust enrichment claims are barred by the three-year limitation period in § 52-577. As explained in part II of this opinion, unjust enrichment is not a legal claim sounding in either tort or contract-it is an equitable claim for relief. As an equitable claim, its timeliness is not subject to a statute of limitations but, rather, to the equitable doctrine of laches. See Dunham v. Dunham , 204 Conn. 303, 326-27, 528 A.2d 1123 (1987) (holding that plaintiff's equitable claim for relief was not barred by three-year statute of limitations in § 52-577 ), overruled in part on other grounds by Santopietro v. New Haven , 239 Conn. 207, 213 n.8, 682 A.2d 106 (1996) ; see also Government Employees Ins. Co. v. Barros , 184 Conn. App. 395, 399, 401, 195 A.3d 431 (2018) (recognizing that "[s]tatutes of limitations do not apply in a strict fashion to causes of action arising in equity," and when "the plaintiff's claim sounds only in equity, not in law or in both law and equity . the plaintiff's claim is not subject to any statute of limitations, let alone the same statutes of limitations applicable to the underlying claims" [footnote omitted] ). In an action for equitable relief, a court is not "bound to apply the statute of limitations that governs the underlying cause of action. In fact, in an equitable proceeding, a court may provide a remedy even though the governing statute of limitations has expired, just as it has discretion to dismiss for laches an action initiated within the period of the statute." Dunham v. Dunham , supra, at 326, 528 A.2d 1123. "Although courts in equitable proceedings often look by analogy to the statute of limitations to determine whether, in the interests of justice, a particular action should be heard, they are by no means obliged to adhere to those time limitations." Id., at 326-27, 528 A.2d 1123 ; see Certain Underwriters at Lloyd's, London v. Cooperman , 289 Conn. 383, 411, 957 A.2d 836 (2008) (concluding that plaintiffs' equitable claims were time-barred because its legal claims were time-barred under statute of limitations). As equitable claims for relief, the plaintiff's unjust enrichment claims are not barred by the three-year limitation period in § 52-577. The defendants contend that, even under the doctrine of laches, the three-year limitation period in § 52-577 should apply to this action by analogy because the plaintiff "has no excuse whatsoever for waiting until 2013 to seek recovery of payments made in 2008," and the defendants have suffered prejudice as a consequence of the plaintiff's delay because "SV Fund recouped the alleged loss, SV Fund no longer exists, and all of the other partners have received their distributions." To prevail on the affirmative defense of laches, the defendants must establish, first, that there was an inexcusable delay and, second, that the delay "prejudiced the defendant[s].... The mere lapse of time does not constitute laches . unless it results in prejudice to the defendant[s] . A conclusion that a plaintiff has been guilty of laches is one of fact for the trier and not one that can be made by this court, unless the subordinate facts found make such a conclusion inevitable as a matter of law." (Citations omitted; internal quotation marks omitted.) Papcun v. Papcun , 181 Conn. 618, 620-21, 436 A.2d 282 (1980). The trial court made no factual findings regarding the defendants' special defense of laches, and, in the absence of subordinate facts, we decline to address the issue. We therefore remand this case to the trial court for consideration of the defendants' seventh special defense of laches, as well as the remaining grounds for summary judgment raised in the defendants' August 12, 2016 motion for summary judgment. The judgment is reversed and the case is remanded for further proceedings according to law. In this opinion the other justices concurred. Section 17-607 of DRULPA provides that, "[u]nless otherwise agreed, a limited partner who receives a distribution from a limited partnership shall have no liability under this chapter or other applicable law for the amount of the distribution after the expiration of 3 years from the date of the distribution." Deutsch received the following distributions: (1) $15,000,000 in January, 2008; (2) $5,305,029.10 on May 8, 2008; (3) $2,000,000 on May 13, 2008; and (4) $4,443.93 on May 14, 2008. Simon received the following distributions: (1) $1,250,000 in January, 2008; and (2) $926,785.80 on May 2, 2008. 3V Capital Partners, LP, was a predecessor partnership to SV Fund, of which the defendants were limited partners. Additionally, the trial court rejected the plaintiff's argument that "[§] 17-607 (c) [of DRULPA] is not applicable because, upon their withdrawal, the defendant[s] ceased to be limited partners under the terms of the [limited partnership agreement]." The trial court determined that "a thorough reading of [§] 17-607 as a whole makes it clear that the words 'limited partner' refer to the person or entity who receives the distribution by virtue of the partner's status as a limited partner and applies even to withdrawing limited partners." The trial court did not reach the issue of "whether . the Connecticut statute of limitations would bar the plaintiff's claim[s]." See, e.g., LaSalla v. Doctor's Associates, Inc. , 278 Conn. 578, 595, 898 A.2d 803 (2006) ; Macomber v. Travelers Property & Casualty Corp. , supra, 277 Conn. at 640, 894 A.2d 240 ; Fink v. Golenbock , 238 Conn. 183, 193, 680 A.2d 1243 (1996). See, e.g., Habetz v. Condon , 224 Conn. 231, 236 n.9, 618 A.2d 501 (1992) ; Sidney v. DeVries , 215 Conn. 350, 351-52 n.1, 575 A.2d 228 (1990) ; Liljedahl Bros., Inc. v. Grigsby , 215 Conn. 345, 346 n.1, 576 A.2d 149 (1990) ; see generally Meaney v. Connecticut Hospital Assn., Inc. , 250 Conn. 500, 511, 735 A.2d 813 (1999) ("[a]lthough, linguistically, such a claim is sometimes denominated an implied-in-law claim, or a quasi contract claim, it is more descriptive to call it what it is, a claim in restitution whose basis is the alleged unjust enrichment of one person at the expense of another"). We recognize that, in Macomber v. Travelers Property & Casualty Corp. , supra, 277 Conn. at 640, 894 A.2d 240, we held that unjust enrichment was a tort for choice of law purposes, and, therefore, "we apply the law of the state in which the plaintiff was injured, unless to do so would produce an arbitrary or irrational result." As this court recently clarified, however, "we have completely abandoned the lex loci test in tort actions" and adopted "the most significant relationship test outlined in § 6 (2) and 145 of the Restatement (Second) of Conflict of Laws [as] the proper test to apply in tort actions to determine which state's law applies." Western Dermatology Consultants, P.C. v. VitalWorks, Inc. , supra, 322 Conn. at 551 n.9, 153 A.3d 574. Thus, regardless of whether a claim for unjust enrichment is characterized as a tort or an equitable claim for restitution, the same conflict of law principles apply, namely, the most significant relationship test set forth in the Restatement (Second). There is no contention that either of the exceptions listed in § 187 (2) of the Restatement (Second) is applicable to the present case. See 1 Restatement (Second), supra, § 187 (2), p. 561 (providing that law of state chosen by parties will be applied unless either "the chosen state has no substantial relationship to the parties or the transaction and there is no other reasonable basis for the parties' choice" or "application of the law of the chosen state would be contrary to a fundamental policy of a state which has a materially greater interest than the chosen state in the determination of the particular issue and which, under the rule of § 188, would be the state of the applicable law in the absence of an effective choice of law by the parties"); see also Elgar v. Elgar , supra, 238 Conn. at 850, 679 A.2d 937 (holding that "parties to a contract generally are allowed to select the law that will govern their contract, unless either" exception in § 187 [2] of Restatement [Second] is applicable). We recognize that § 142 and 143 of the Restatement (Second) were repealed and replaced with an amended § 142 in the 1988 revision of the Restatement (Second), which abandoned the procedural/substantive distinction and embraced "the emerging trend" that "a claim will not be maintained if it is barred by the statute of limitations of the state which, with respect to the issue of limitations, is the state of most significant relationship to the occurrence and the parties under the principles stated in § 6." 1 Restatement (Second), Conflict of Laws § 142, comment (e), p. 125 (Supp. 1989). The parties in the present case have not asked us to overrule our prior precedent employing the traditional approach and adopt the 1988 revision to § 142 of the Restatement (Second), and, therefore, we have no reason to address the issue here. See Spencer v. Hartford Financial Services Group, Inc. , 256 F.R.D. 284, 300 (D. Conn. 2009) (noting that, although "Connecticut courts are trending [toward] following the Restatement's 'most significant relationship' test in place of traditional rules," this court's 1994 decision in Baxter , which postdated 1988 revision to § 142 of Restatement [Second], reflects that Connecticut courts continue to "follow the traditional rule" with respect to statutes of limitations); see also Doe No. 1 v. Knights of Columbus , 930 F. Supp. 2d 337, 356 n.25 (D. Conn. 2013) ; Bilodeau v. Vlack , Docket No. 07-CV-1178 (JCH), 2009 WL 1505571, *4 (D. Conn. 2009). In Baxter , the term "common law" is used broadly to include all rights preexisting "new right[s] created by statute." Baxter v. Sturm, Ruger & Co. , supra, 230 Conn. at 340, 644 A.2d 1297. Thus, although the term may be used more narrowly in other contexts, in the present context, the "common law" includes "judicial precedent," "case law," and "natural law," as opposed to statutory law. (Internal quotation marks omitted.) Moore v. Ganim , 233 Conn. 557, 599, 660 A.2d 742 (1995) ; see also Western Union Telegraph Co. v. Call Publishing Co. , 181 U.S. 92, 102, 21 S. Ct. 561, 45 L. Ed. 765 (1901) ("[a]s distinguished from law created by the enactment of legislatures, the common law comprises the body of those principles and rules of action relating to the government and security of persons and property, which derive their authority solely from usages and customs of immemorial antiquity, or from the judgments and decrees of the courts recognizing, affirming and enforcing such usages and customs" [internal quotation marks omitted] ); State v. Courchesne , 296 Conn. 622, 674 n.36, 998 A.2d 1 (2010) ("[t]he common law is generally described as those principles, usage, and rules of action applicable to the government and security of persons and property which do not rest for their authority [on] any express and positive declaration of the will of the legislature" [internal quotation marks omitted] ). We recognize that there is a distinction between "legal" and "equitable" claims, which derives from the historical distinction in England between "courts of law and courts of equity." Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc. , 311 Conn. 123, 145, 84 A.3d 840 (2014) ; see id. (noting that, "[i]n the United States, most jurisdictions, including Connecticut and the federal courts, have merged law and equity courts"). This distinction, however, is irrelevant to the procedural/substantive analysis of a limitation period under Baxter and our use of the term "common law" here. The defendants, quoting Baxter v. Sturm, Ruger & Co. , supra, 230 Conn. at 340, 644 A.2d 1297, contend that DRULPA "created rights based on unique statutory relationships that did not exist at common law," and, therefore, the three-year statute of limitations in § 17-607 (c) is "one of the 'congeries of elements necessary to establish the right.' " Although DRULPA created a statutory framework that did not exist at common law, the plaintiff does not seek to recover under DRULPA or any of the statutory rights created therein; it seeks recovery solely under the common-law doctrine of unjust enrichment. As the master of the complaint, the plaintiff is free to decide what theory of recovery to pursue, and, under Baxter , the theory of recovery chosen by the plaintiff is dispositive of whether a statute of limitations is deemed procedural or substantive for choice of law purposes. See Baxter v. Sturm, Ruger & Co. , supra, at 347, 644 A.2d 1297. The defendants point out that "numerous Connecticut cases" have held "that a statute of limitation[s] is substantive." Nothing in the cases cited by the defendants is inconsistent with our holding in Baxter or the principles elucidated in this opinion, because, in all of those cases, the limitation period was part of a statutory scheme that did not exist at common law. See Lostritto v. Community Action Agency of New Haven, Inc. , 269 Conn. 10, 26, 848 A.2d 418 (2004) (holding that 120-day limitation in General Statutes § 52-102b is substantive because it is part of statutory scheme that "confers rights that did not exist at common law"); Ecker v. West Hartford , 205 Conn. 219, 233, 530 A.2d 1056 (1987) (holding that three-year limitation in General Statutes § 52-555 is substantive because wrongful death statute "creates liability where none formerly existed" at common law); Diamond National Corp. v. Dwelle , 164 Conn. 540, 543, 325 A.2d 259 (1973) (holding that time limitation in General Statutes § 49-39 is substantive because "[a] mechanic's lien is a creature of statute and gives a right of action which did not exist at common law"); Simmons v. Holcomb , 98 Conn. 770, 774-75, 120 A. 510 (1923) (holding that statute of limitations for worker's compensation claim is substantive because "right of action . did not exist at common law," and, therefore, "it is a limitation of the liability itself, as created, and not of the remedy alone" [internal quotation marks omitted] ); Federal National Mortgage Assn. v. Jessup , Docket No. CV-98-0169417-S, 1999 WL 624453, *11 (Conn. Super. August 3, 1999) (holding that statute of limitations for claim under Connecticut Unfair Trade Practices Act [CUTPA] is substantive because "CUTPA is a statutory creation"). The limited partnership agreement provides that the limited partnership is "create [d ] and form [ed ]" in accordance with DRULPA but is "governed by and construed in accordance with the laws of the [s]tate of Delaware ." (Emphasis added.) Thus, although the parties may have incorporated DRULPA with respect to the creation and formation of the partnership, the agreement itself and "all rights and liabilities of the parties" arising out of the agreement are governed by Delaware law generally. In any event, as explained in the text of this opinion, § 187 of the Restatement (Second) "is a rule providing for incorporation by reference and is not a rule of choice of law." 1 Restatement (Second), supra, § 187, comment (c), p. 563. Accordingly, even where the law of another state expressly has been incorporated into a contract by reference, the procedural law of the forum applies in the absence of an express statement to the contrary. See id., § 122 and comments (a) through (c), pp. 350-53. We note that the defendants did not file a preliminary statement of the issues "present[ing] for review alternative grounds upon which the judgment may be affirmed," as required Practice Book § 63-4 (a) (1). Nonetheless, we may consider the defendants' alternative grounds for affirmance as properly raised if "neither party would be prejudiced by our doing so ." (Internal quotation marks omitted.) Gerardi v. Bridgeport , 294 Conn. 461, 466, 985 A.2d 328 (2010). Because the applicability of § 52-577 was discussed extensively in its principal appellate brief, we conclude that the plaintiff would not be prejudiced by our consideration of the defendants' alternative grounds for affirmance. See, e.g., Connecticut Ins. Guaranty Assn. v. Fontaine , 278 Conn. 779, 784 n.4, 900 A.2d 18 (2006). General Statutes § 52-577 provides that "[n]o action founded upon a tort shall be brought but within three years from the date of the act or omission complained of." General Statutes § 52-576 (a) provides in relevant part that "[n]o action for an account, or on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues ." See, e.g., Certain Underwriters at Lloyd's, London v. Cooperman , 289 Conn. 383, 407-08, 957 A.2d 836 (2008) ("[t]he question of whether a party's claim is barred by the statute of limitations is a question of law, which this court reviews de novo" [internal quotation marks omitted] ). The defendants also contend that the judgment of the trial court may be affirmed on the alternative ground that "[i]t is well settled in Connecticut that the equitable remedy of unjust enrichment is unavailable where there is a written contract between the parties on the subject." We decline to address the defendants' alternative ground for affirmance in light of our conclusion in part II of this opinion that Delaware law, rather than Connecticut law, governs the substance of the plaintiff's unjust enrichment claims.

12511179

FARMINGTON-GIRARD, LLC v. PLANNING AND ZONING COMMISSION of the City of Hartford The Pamela Corporation et al. v. Planning and Zoning Commission of the City of Hartford

Farmington-Girard, LLC v. Planning & Zoning Comm'r of Hartford

2019-06-25

AC 41601

776

787

212 A.3d 776

212

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

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

Fastcase

FARMINGTON-GIRARD, LLC v. PLANNING AND ZONING COMMISSION of the City of Hartford

FARMINGTON-GIRARD, LLC v. PLANNING AND ZONING COMMISSION of the City of Hartford The Pamela Corporation et al. v. Planning and Zoning Commission of the City of Hartford AC 41601 Appellate Court of Connecticut. Argued March 12, 2019 Officially released June 25, 2019 David F. Sherwood, Glastonbury, for the appellant (plaintiff Farmington-Girard, LLC). Daniel J. Krisch, Hartford, with whom was Matthew J. Willis, Hartford, for the appellee (defendant). Lavine, Bright and Alexander, Js.

5031

32359

LAVINE, J. The plaintiff Farmington-Girard, LLC, appeals from the judgments of the trial court, rendered after a trial to the court, dismissing the plaintiff's four consolidated appeals that challenged text amendments to the Hartford Zoning Regulations (regulations) and zoning map changes made by the defendant, the Planning and Zoning Commission of the City of Hartford (commission), for failure to exhaust its administrative remedies. In this appeal, the plaintiff claims that (1) the trial court improperly concluded that it was required to appeal to the city's Zoning Board of Appeals (board) and, thus, failed to exhaust its administrative remedies, and (2) the defendant is estopped from applying the current regulations to the plaintiff's property. We affirm the judgments of the trial court. The following facts, as found by the trial court, and procedural history are relevant to this appeal. The plaintiff owns property at 510 Farmington Avenue in Hartford. On December 10, 2012, the plaintiff submitted a special permit application, which the plaintiff describes as a "hastily submitted" placeholder application "in order to preserve its rights," proposing the construction of a small fast food restaurant with a drive-through. On December 11, 2012, the defendant made changes to the city zoning map causing the classification of the plaintiff's property to change from a B-3 zone that allows drive-through operations to a B-4 that does not. In response to the plaintiff's application, Kim Holden, the city's chief staff planner, sent a letter dated December 19, 2012, to the plaintiff, stating in relevant part: "A site plan with minimal information was attached to the application which is not sufficient to review with respect to the zoning regulations.... The application is considered incomplete and as such, the time clock on the application has been stopped." The plaintiff appealed the defendant's zoning map change to the Superior Court, Peck, J. , which invalidated the commission's December 11, 2012 zoning map change because the commission failed to comply with prehearing and posthearing statutory notice requirements. Farmington-Girard, LLC v. Planning & Zoning Commission , Superior Court, judicial district of Hartford, Docket No. CV-13-6038698-S, 2014 WL 4815345 (August 19, 2014). On September 23, 2014, the defendant amended the text of the regulations, resulting in the plaintiff's inability to use its property for a fast food restaurant with a drive-through. The plaintiff appealed this amendment to the Superior Court in a complaint dated February 18, 2015, on the ground that the defendant failed to comply with procedural notice requirements. In response to Holden's letter, stating that the plaintiff's December 10, 2012 application was incomplete, Michelle Carlson wrote a letter dated October 20, 2014, on behalf of the plaintiff to Khara L. Dodds, the director of the city's planning division. According to the plaintiff, it had waited until after the court invalidated the 2012 zoning map change to complete its application. Carlson's letter purportedly supplied all of the required information outlined by Holden and requested that the time clock on the application run and that a public hearing for the application be set. In an affidavit, Carlson attested that she verbally was informed by the city that a new application was required and that the supplemental materials would not be accepted. Dodds responded to Carlson in a letter dated October 28, 2014, stating: "We are contacting you with regard to a site plan review application submitted December 10, 2012 and your desire to re-activate this application with your current plan submittal. After our initial review, it was clear that the original site plan application, #2012-6263 filed in December 2012, lacked the required materials to be considered valid. The application was submitted without site and architectural elevation plans: as a result the application is void. A new site plan application with the required materials must be submitted. Please note several changes to the City of Hartford Zoning Regulations have occurred since your last submittal. Please review these changes to ensure that all required materials are submitted with your new application." Dodds' October 28, 2014 letter coincided with the defendant's adoption of another zoning map change that blocked the plaintiff's plan to build a drive-through fast food restaurant. The plaintiff appealed the October 28, 2014 zoning map change to the Superior Court in a complaint dated November 14, 2014, on the ground that the defendant failed to comply with procedural notice requirements. The plaintiff filed a variance application on October 28, 2014, as well. The plaintiff additionally appealed to the Superior Court, in complaints dated December 15, 2014 and April 28, 2015, respectively, from the defendant's December 9, 2014 zoning map change and its April 14, 2015 text amendment to the regulations. The defendant amended its December 9, 2014 zoning map and its April 14, 2015 text in the same manner as it had on September 23, 2014 and October 28, 2014, respectively. In its appeals, the plaintiff again asserted that the defendant failed to comply with procedural notice requirements. On January 20, 2015, the board denied the plaintiff's variance application. The plaintiff's appeals challenging the defendant's October 28 and December 9, 2014 zoning map changes were filed before the board denied the plaintiff's variance application. After the plaintiff filed the four appeals that constitute the present matter, the defendant adopted new regulations on January 12, 2016, that place the plaintiff's property in a MS-1 zone. The plaintiff has not appealed from the new zoning scheme or designation of its property. On May 4, 2016, the defendant moved to dismiss the plaintiff's appeals as moot due to the passage of the new zoning scheme. The trial court, however, concluded that "if the plaintiff's particular application was complete on October 20, 2014, and the zone change was improper because of the failure to provide proper notice, then [the plaintiff] may have had a viable complete application that was in conformance with the applicable zoning regulations at that time." (Internal quotation marks omitted.) After the parties filed briefs, including additional briefing on the exhaustion issue as requested by the court, and the court heard the appeals, the court made various findings. First, the court found that the defendant failed to comply with the procedural requirements for the September 23, October 28 and December 9, 2014, and April 14, 2015 zoning map changes and text amendments to the regulations. The court, therefore, concluded that the zoning map changes and text amendments were void. Second, the court concluded that the plaintiff had an application pending on or about October 20, 2014, as it found that "[w]hile the December 19, 2012 letter from the planning division informs [the plaintiff] that the application is incomplete, there is no evidence that [the] application was rejected or deemed void until 2014. The language of the December 19, 2012 letter was less than unequivocal." (Internal quotation marks omitted). Third, the court found that, contrary to the plaintiff's arguments, Dodds had the authority to declare the application void and that she had articulated "a clear and definite interpretation of the zoning regulations in her letter declaring the plaintiff's application void ." (Citations omitted; internal quotation marks omitted.) Therefore, the court concluded that the plaintiff had a statutory right to appeal Dodds' decision to the board and had failed to do so. As a result, the court dismissed the plaintiff's appeals for a failure to exhaust its administrative remedies. The plaintiff filed a motion to reargue on September 25, 2017, which the court granted. At the February 8, 2018 hearing, the court rejected the plaintiff's argument that an appeal to the board was not necessary because the futility exception applied, and denied the plaintiff relief from the dismissal of its claims. The plaintiff thereafter appealed to this court. The plaintiff claims that the court improperly concluded that it was required to appeal Dodds' decision to the board and thus that it failed to exhaust its administrative remedies. Specifically, the plaintiff makes three arguments: (1) Dodds had no authority to deny the application, (2) there was no statutory authority requiring an appeal from an unsuccessful special permit application, and (3) an appeal would have been futile. We disagree. "As a preliminary matter, we set forth the applicable standard of review.... Because the exhaustion [of administrative remedies] doctrine implicates subject matter jurisdiction, [the court] must decide as a threshold matter whether that doctrine requires dismissal of the [plaintiff's] claim.... [Additionally] [b]ecause [a] determination regarding a trial court's subject matter jurisdiction is a question of law, our review is plenary." (Internal quotation marks omitted.) Fairchild Heights Residents Assn., Inc. v. Fairchild Heights, Inc. , 310 Conn. 797, 807, 82 A.3d 602 (2014). "Moreover, [i]t is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Novak v. Levin , 287 Conn. 71, 79, 951 A.2d 514 (2008). "The doctrine of exhaustion of administrative remedies is well established in the jurisprudence of administrative law.... Under that doctrine, a trial court lacks subject matter jurisdiction over an action that seeks a remedy that could be provided through an administrative proceeding, unless and until that remedy has been sought in the administrative forum.... In the absence of exhaustion of that remedy, the action must be dismissed." (Internal quotation marks omitted.) Republican Party of Connecticut v. Merrill , 307 Conn. 470, 477, 55 A.3d 251 (2012). "A primary purpose of the doctrine is to foster an orderly process of administrative adjudication and judicial review, offering a reviewing court the benefit of the agency's findings and conclusions. It relieves courts of the burden of prematurely deciding questions that, entrusted to an agency, may receive a satisfactory administrative disposition and avoid the need for judicial review.... Moreover, the exhaustion doctrine recognizes the notion, grounded in deference to [the legislature's] delegation of authority to coordinate branches of Government, that agencies, not the courts, ought to have primary responsibility for the programs that [the legislature] has charged them to administer.... Therefore, exhaustion of remedies serves dual functions: it protects the courts from becoming unnecessarily burdened with administrative appeals and it ensures the integrity of the agency's role in administering its statutory responsibilities.... "The [exhaustion] doctrine is applied in a number of different situations and is, like most judicial doctrines, subject to numerous exceptions..... [Our Supreme Court has] recognized such exceptions only infrequently and only for narrowly defined purposes . such as when recourse to the administrative remedy would be futile or inadequate.... Because of the policy behind the exhaustion doctrine, we construe these exceptions narrowly." (Citations omitted; internal quotation marks omitted.) Stepney, LLC v. Fairfield , 263 Conn. 558, 564-65, 821 A.2d 725 (2003). Municipal zoning boards of appeal are empowered, under Connecticut law, "[t]o hear and decide appeals where it is alleged that there is an error in any order, requirement or decision made by the official charged with the enforcement of this chapter or any bylaw, ordinance or regulation adopted under the provisions of this chapter ." General Statutes § 8-6 (a) (1). "As our Supreme Court has explained, the futility exception applies only when [the administrative remedy] could not result in a favorable decision . Our Supreme Court further has instructed that an administrative remedy is adequate when it could provide the [party] with the relief that it seeks and provide a mechanism for judicial review of the administrative decision." (Citations omitted; emphasis in original; internal quotation marks omitted.) Wethersfield v. PR Arrow, LLC , 187 Conn. App. 604, 628, 203 A.3d 645, cert. denied, 331 Conn. 907, 202 A.3d 1022 (2019). I The plaintiff first argues that the commission alone had the authority to determine the completeness of the special permit application and that Dodds had no authority to reject the application herself. The trial court rejected the plaintiff's argument because it concluded that the plain language of the regulations gave Dodds the authority to reject the application. It stated: "Section 66 of the regulations provided that they 'shall be administered and enforced by the [D]epartment of [D]evelopment [S]ervices' and that the director of planning had 'overall responsibility for the administration of the regulations, and shall be the zoning administrator.' . Pursuant to § 67 [of the regulations], the director of the planning division had the authority to designate the zoning enforcement officer who was responsible for enforcement of the regulations and for the issuance of zoning permits.... "Section 68 (a) [of the regulations], in relevant part, provided that '[p]rior to the issuance [of a zoning permit], the zoning administrator must find that the application and plans conform to all provisions of these regulations.' . Section 68 (c), in relevant part, required that each zoning permit application shall include 'an administrative review plan as well as such information and exhibits as are required in these regulations or may be reasonably required by the zoning administrator in order that the proposal of the applicant may be adequately interpreted and judged as to its conformity with the provisions set forth in these regulations.' . Section 68 (e) (1) required a special permit application to include a site plan . "Section 163 (h) [of the regulations] provided . 'All projects requiring a special permit as outlined in the table of permitted uses shall be referred to the [c]ommission for review.... "Section 875 [of the regulations] provided . 'Every application for the use of property subject to conditions set forth in this division shall be filed with the zoning administrator in accordance with the provisions of section 68 (relating to applications for zoning permits) and shall be subject to approval by the zoning administrator and any other commission, board or agency stipulated in this division.' . "[Section] 913 [of the regulations] was entitled, 'Eating places with drive-in or curb service,' and, in relevant part, provided: '(a) The zoning administrator shall refer each application for an eating place with drive-in or curb service in the B-3 zoning district to the commission. The application shall be filed and acted on in accordance with the procedures set forth in section 68 (relating to applications for zoning permits).... "(d) Every application for a special permit for a restaurant with drive-in or curb service shall be filed and acted on in accordance with the provisions of section 68 (relating to applications for zoning permits).' . "In the present case, Dodds was responsible for the administration of the regulatory scheme." (Citations omitted; footnotes omitted.) On appeal, the plaintiff does not claim that the court misstated or misconstrued the regulations, but argues, rather, that § 163 and 913 of the regulations, which were acknowledged by the court in its analysis, and case law support its contention that only the commission may act on the application. We are unpersuaded, as none of the authorities on which the plaintiff relies states that only the commission had the authority to declare an application, which does not include the information as required by the regulation, void as incomplete after a public hearing. Sections 66 and 67 of the regulations, however, give the director of the city's planning division the "overall responsibility for the administration of the regulations," and designate the director "the zoning administrator." Furthermore, § 68 of the regulations explicitly provides that a permit may not issue until the zoning administrator finds that the application and plans conform to all provisions of the regulations. Finally, § 913 of the regulations, on which the plaintiff relies, requires compliance with § 68. We, therefore, agree with the court that the regulations provide Dodds with the authority to declare the application, which did not conform to the applicable regulations, void. II The plaintiff next argues that there was no statutory or regulatory avenue for appeal of Dodds' decision voiding its application. We disagree. In its memorandum of decision, the court stated: "[ Section] 8-6, in relevant part, provides: '(a) The zoning board of appeals shall have the following powers and duties: (1) To hear and decide appeals where it is alleged that there is an error in any order, requirement or decision made by the official charged with the enforcement of this chapter or any bylaw, ordinance or regulation adopted under the provisions of this chapter .' . "The plaintiff argues that it could not have appealed Dodds' determination because she was not 'the official charged with the enforcement' under § 67 of the regulations. Nevertheless, our Supreme Court has 'not disagree[d], in principle, with the . contention that appeals under § 8-6 may be taken from decisions made by someone other than the designated zoning enforcement officer, if that other person in fact exercised, and was authorized to exercise, the relevant authority.' . Dodds had 'overall responsibility for the administration of the regulations' under § 66.... More importantly, she rendered 'a clear and definite interpretation of zoning regulations' in her letter declaring the plaintiff's application void . that ultimately affected the plaintiff's ability to use its property.... Thus, the plaintiff had a statutory right of appeal under § 8-6 (a) (1)." (Citations omitted; emphasis in original; footnote omitted.) We agree with the court that Dodds' letter voiding the plaintiff's application was an appealable decision because the letter had both a legal effect and contained a clear and definite interpretation of the regulations. "[W]hen there is a written communication from a zoning official relating to the construction or application of zoning laws, the question of whether a 'decision' has been rendered for purposes of appeal turns on whether the communication has a legal effect or consequence.... The obvious examples of such appealable decisions would be the granting or denying of building permits and the issuance of certificates of zoning compliance.... This interpretation is consistent with the terms used in relation to 'decision' under § 8-6 and 8-7 -'order' and 'requirement'-which similarly import legal effect or consequence." (Citations omitted.) Reardon v. Zoning Board of Appeals , 311 Conn. 356, 365-66, 87 A.3d 1070 (2014). "[W]hen a landowner obtains a clear and definite interpretation of zoning regulations applicable to the landowner's current use of his or her property, the landowner properly may appeal that interpretation to the local zoning board of appeals." Piquet v. Chester , 306 Conn. 173, 186, 49 A.3d 977 (2012) ; contra Holt v. Zoning Board of Appeals , 114 Conn. App. 13, 29, 968 A.2d 946 (2009) (letter advising on hypothetical situation was not appealable decision). Dodds did not simply give advice to the plaintiff on a hypothetical situation, but, rather, she made a decision to void the plaintiff's application, due to a clear and definitive interpretation of the regulations regarding an application's required materials, and that decision had a legal effect on the plaintiff because the plaintiff was then required to file a new application that conformed to the regulations in place at that time. We, therefore, reject the plaintiff's argument that it could not have appealed from Dodds' decision to void its application. III The plaintiff's third argument is that an appeal to the board would have been futile because Dodds made two determinations in her letter: (1) that the application was void, and (2) that a reapplication must conform to the zoning map changes and text amendments in place at the time of the letter. The plaintiff argues that the "significance of the first determination in . Dodds' letter is wholly dependent on the validity of the second determination." Thus, the plaintiff contends that its claim can be reviewed only by a court of law as the validity of the zoning map and text amendments were under question and could not be resolved by the board. This argument is unpersuasive because, contrary to the plaintiff's argument, Dodds' second determination relies on her first determination-that the application was void and a new application needed to be submitted. The board properly could have reviewed Dodds' decision and provided a remedy to the plaintiff by deciding that the application was not void and that no new application needed to be filed. If the board had determined that Dodds erred in deeming the application void, the plaintiff's application would not have had to conform to the new zoning map and text amendments pursuant to General Statutes § 8-2h (a), which provides, in relevant part, that "[a]n application filed with a . planning and zoning commission . which is in conformance with the applicable zoning regulations as of the time of filing shall not be required to comply with, nor shall it be disapproved for the reason that it does not comply with, any change in the zoning regulations or the boundaries of zoning districts of such town, city or borough taking effect after the filing of such application." Because the board could have found that the application was not void and was subject to the regulations in place at the time of its filing rather than to the zoning map changes and text amendments, an appeal to the board was an adequate administrative remedy that the plaintiff was obligated to seek. "[A]n administrative remedy is adequate when it could provide the [party] with the relief that it seeks ." (Emphasis added; internal quotation marks omitted.) Wethersfield v. PR Arrow, LLC , supra, 187 Conn. App. at 628, 203 A.3d 645. We, therefore, reject the plaintiff's claim that it was not required to appeal to the board and that the court improperly dismissed its appeals for a failure to exhaust its administrative remedies. The judgments are affirmed. In this opinion the other judges concurred. The Pamela Corporation, the owner of 255 Farmington Avenue, was a coplaintiff in two of the four appeals made to the trial court in the present matter. The Pamela Corporation filed motions to withdraw, however, which the trial court granted, thus leaving Farmington-Girard, LLC, as the sole plaintiff. In this opinion, we refer to Farmington-Girard, LLC, as the plaintiff. Because we conclude that the court lacked subject matter jurisdiction, we do not reach the plaintiff's second claim. The letter also detailed specific items necessary for a special permit application that were not included in the plaintiff's submission. The Pamela Corporation also appealed the zoning map changes, and the two cases were consolidated. During the pendency of the plaintiff's appeal, this court became aware of an action that the plaintiff brought in the federal District Court against the defendant and the city of Hartford (municipal defendants) on the basis of the same essential circumstances as the present appeals. See Farmington-Girard, LLC v. Planning & Zoning Commission , United States District Court, Docket No. 3:17-cv-1915 (MPS), 2019 WL 935500 (D. Conn. February 26, 2019). In the District Court, the plaintiff claimed, in part, that the municipal defendants violated its constitutional rights under 42 U.S.C. § 1983. Id., at *1. After the plaintiff filed the present appeal, but before the oral arguments to this court, the District Court denied, in part, the municipal defendants' motion to dismiss the plaintiff's claims as unripe because the appeal before this court was not yet decided. Id. The District Court concluded that, because we, as an appellate court, are a remedial body, the plaintiff's claims were not unripe. Id., at *8. Nonetheless, the court sua sponte ordered the parties to submit briefs on a different aspect of ripeness-whether the claims were unripe due to the plaintiff's failure to seek a variance before filing each of its federal appeals. Id. The District Court found that the plaintiff alleged sufficient facts to support the futility exception regarding the finality requirement of seeking a variance before appealing. Id., at *8-9. We note, however, that the futility exception as it pertains to the exhaustion doctrine is fundamentally different from the futility exception as it applies to ripeness of a § 1983 claim because the focus of a § 1983 claim's ripeness is on whether there has been a final order that can be reviewed on appeal by the federal District Court, not on whether there was an administrative remedy available to the plaintiff. "The question whether administrative remedies must be exhausted is conceptually distinct . from the question whether an administrative action must be final before it is judicially reviewable.... While the policies underlying the two concepts often overlap, the finality requirement is concerned with whether the initial decisionmaker has arrived at a definitive position on the issue that inflicts an actual, concrete injury; the exhaustion requirement generally refers to administrative and judicial procedures by which an injured party may seek review of an adverse decision and obtain a remedy if the decision is found to be unlawful or otherwise inappropriate." (Citations omitted.) Williamson County Regional Planning Commission v. Hamilton Bank , 473 U.S. 172, 192-94, 105 S. Ct. 3108, 87 L. Ed. 2d 126 (1985). For finality purposes for a § 1983 claim, a plaintiff is "required to obtain a final, definitive position as to how it could use the property from the entity charged with implementing the zoning regulations.... [T]his jurisdictional prerequisite conditions federal review on a property owner submitting at least one meaningful application for a variance." (Citations omitted.) Murphy v. New Milford Zoning Commission , 402 F.3d 342, 348-49 (2d Cir. 2005). However, "[a] property owner . will be excused from obtaining a final decision if pursuing an appeal to a zoning board of appeals or seeking a variance would be futile." Id., at 349. Although a plaintiff would need to seek a variance or prove that it would have been futile to do so for finality purposes, "a plaintiff is not required to exhaust administrative remedies prior to filing a § 1983 claim ." Mangiafico v. Farmington , 331 Conn. 404, 408, 204 A.3d 1138 (2019). The District Court's conclusion, therefore, does not speak to whether the plaintiff has exhausted all administrative remedies as was required in the present matter, or whether it would have been futile to do so. The District Court's analysis focused only on whether there was a final order from the board, the highest decision-making body. The issue in the present appeal is whether a remedy was available to the plaintiff that it failed to seek. Our own independent review of the applicable regulations confirms that the trial court correctly set forth the relevant language of the applicable regulations. Although the plaintiff cites cases that state that the commission has the discretion to proceed on an application, when, notably, the regulations did not require additional information; see Woodburn v. Conservation Commission , 37 Conn. App. 166, 179, 655 A.2d 764, cert. denied, 233 Conn. 906, 657 A.2d 645 (1995) ; or that the commission was not prohibited by the regulations from holding a hearing on an incomplete application; see Michel v. Planning & Zoning Commission , 28 Conn. App. 314, 331, 612 A.2d 778, cert. denied, 223 Conn. 923, 614 A.2d 824 (1992) ; the cases the plaintiff cites do not support the notion that a bare-bones application with minimal information could be deemed void or incomplete only by the commission. The plaintiff construes the receipt of an application as ministerial, even when the application is clearly incomplete; however, the cases it cites do not stand for that proposition. Viking Construction Co. v. Planning Commission , 181 Conn. 243, 247, 435 A.2d 29 (1980), deals only with when the time clock starts to tick for an application, and Pluhowsky v. New Haven , 151 Conn. 337, 347-48, 197 A.2d 645 (1964), supports the opposite notion-that ministerial duties can involve quasi-judicial determinations. See id. ("A ministerial duty on the part of an official often follows a quasi-judicial determination by that official as to the existence of a state of facts. Although the determination itself involves the exercise of judgment, and therefore is not a ministerial act, the duty of giving effect, by taking appropriate action, to the determination is often ministerial."). Furthermore, this court recently held that even the question of whether the zoning official had the authority to act must be raised before the zoning board of appeals for a plaintiff to exhaust its administrative remedies. See Wethersfield v. PR Arrow, LLC , supra, 187 Conn. App. at 627, 203 A.3d 645. The plaintiff appears to argue that the board would have been unable to provide a remedy because the board could allow only the admittedly incomplete application to be considered. This argument fails to acknowledge that the plaintiff sought to complete the application through the submission of additional materials, and in response, Dodds considered the incomplete application void rather than allowing it to be completed by the submission of additional materials. We see no reason why the board would not have the power to conclude that the application, although incomplete, was not void. The plaintiff additionally argues: "The plaintiff . [was] not seeking . the opportunity to have the defendant consider its permit application under the prior zoning regulations. That argument misses the forest for the trees. The plaintiff . [was] seeking permission to build and operate a McDonald's restaurant with a drive-through window at 510 Farmington Avenue. The December 10, 2012 application was simply a means to that end. If a new application need be submitted, so be it, but it should not be made subject to text amendments and a rezoning that were adopted illegally." We reject this argument. Consideration of the application under the prior regulations would have given the plaintiff the chance to receive permission to construct and operate a restaurant with a drive-through on its property. It does not matter whether another manner of obtaining such a remedy was amenable or available to the plaintiff as long as an appeal to the board could have provided the plaintiff with relief and prevented the courts from being unnecessarily burdened. See Stepney, LLC v. Fairfield , supra, 263 Conn. at 564-65, 821 A.2d 725 ("exhaustion of remedies . protects the courts from becoming unnecessarily burdened with administrative appeals" [internal quotation marks omitted] ); Wethersfield v. PR Arrow, LLC , supra, 187 Conn. App. at 628, 203 A.3d 645 ("an administrative remedy is adequate when it could provide the [party] with the relief that it seeks and provide a mechanism for judicial review of the administrative decision" [internal quotation marks omitted] ).

12496318

Jenniyah GEORGES, et al. v. OB-GYN SERVICES, PC, et al.

Georges v. OB-GYN Servs., PC

2018-05-29

No. 39909

840

840

184 A.3d 840

184

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

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

Fastcase

Jenniyah GEORGES, et al. v. OB-GYN SERVICES, PC, et al.

Jenniyah GEORGES, et al. v. OB-GYN SERVICES, PC, et al. No. 39909 Appellate Court of Connecticut. Argued May 16, 2018 Officially released May 29, 2018

31

189

Per Curiam. The judgment is affirmed.

12495178

Casey Leigh RUTTER v. Adam JANIS, et al. Nancy Beale, Administratrix (Estate of Lindsey Beale) v. Luis Martins, et al. Jason Ferreira v. Luis Martins, et al.

Rutter v. Janis

2018-03-06

AC 38699, (AC 38792), (AC 38793)

85

95

182 A.3d 85

182

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

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

Fastcase

Casey Leigh RUTTER v. Adam JANIS, et al.

Casey Leigh RUTTER v. Adam JANIS, et al. Nancy Beale, Administratrix (Estate of Lindsey Beale) v. Luis Martins, et al. Jason Ferreira v. Luis Martins, et al. AC 38699, (AC 38792), (AC 38793) Appellate Court of Connecticut. Argued October 16, 2017 Officially released March 6, 2018 James J. Healy, Hartford, with whom were Joel T. Faxon, New Haven and Cynthia C. Bott, Bridgeport and, on the brief, Nathan C. Nasser, Danbury and J. Craig Smith, Bridgeport, for the appellants (plaintiff in each case). James F. Shields, with whom, on the brief, was David M. Houf, Rocky Hill, for the appellee (defendant Danbury Fair Hyundai, LLC). Keller, Elgo and Bear, Js.

5535

32824

BEAR, J. In these consolidated appeals, a principal issue in each of the cases is the meaning and application of the phrase "not more than thirty days" set forth in General Statutes § 14-60 (a). The trial court, in rendering summary judgment in each of the three consolidated cases, from which the plaintiffs have appealed, interpreted that phrase to require the exclusion of May 9, 2013, the date on which a "Temporary Loan of Motor Vehicles" agreement (loan agreement) between Luis Martins and the defendant Danbury Fair Hyundai, LLC, was executed, from the computation of that thirty day period. The plaintiffs claim on appeal that the court erred in determining that the loan of a dealer number plate, pursuant to the loan agreement for use on a 2013 Hyundai Veloster automobile that the Martins had purchased, did not exceed the thirty day period set forth in § 14-60 (a). The plaintiffs also claim that the court erred in finding that the defendant fully complied with the requirements of § 14-60 (a), resulting in its protection from liability to the plaintiffs. We disagree, and, accordingly, affirm the judgments of the trial court. The following facts, as set forth in the defendant's memoranda of law in support of its motions for summary judgment and in the plaintiffs' memoranda of law in opposition to summary judgment, are undisputed. On May 9, 2013, Luis Martins and his father, Jorge Martins, purchased a 2013 Hyundai Veloster automobile from the defendant. Because the defendant had not received the automobile manufacturer's certificate of origin, the parties could not complete the transfer of Luis Martins' motor vehicle registration from his previous vehicle, a 2007 Jeep Wrangler vehicle, to the new vehicle. The defendant loaned a dealer number plate to Luis Martins while the registration process was pending. The defendant and Luis Martins signed the loan agreement at approximately 7 p.m. on May 9, 2013. On June 8, 2013, at approximately 3 p.m., Luis Martins, while driving the Hyundai Veloster automobile, was involved in a motor vehicle accident in Danbury. As a result of the accident, his passengers, Lindsey Beale, Casey Leigh Rutter and Jason Ferreira sustained traumatic injuries; Beale died from her injuries. At the time of the accident, the Hyundai Veloster automobile displayed the dealer number plate belonging to the defendant. In separately filed complaints, the plaintiffs alleged that the defendant owned or controlled the automobile driven by Luis Martins and was, therefore, liable for any damages resulting from the June 8, 2013 accident. On February 17, 2015, the defendant filed a substantially similar motion for summary judgment in each case, asserting that it was not liable to any of the plaintiffs because the accident occurred "twenty-nine days and [twenty] hours after the plates were loaned out, and thus well within the thirty day period of time required by Connecticut law." Attached as evidence in support of its motion, the defendant included an affidavit from William Sabatini, the chief financial officer of the defendant; a temporary insurance identification card issued to the Martins by Allstate Fire and Casualty Insurance Company for the Hyundai Veloster automobile with an effective date of May 9, 2013; an insurance declaration page for that automobile; copies of the Martins' drivers' licenses; a registration certificate and insurance identification card for Luis Martins' previous vehicle; a completed department of motor vehicles registration form for the 2013 Hyundai Veloster automobile signed by the Martins and dated May 9, 2013; purchase and finance documents relating to the sale of the 2013 Hyundai Veloster automobile, including a manufacturer's certificate of origin dated April 15, 2013; and the signed loan agreement. The plaintiffs filed a substantially similar memorandum of law in each of the cases in opposition to the motions for summary judgment, claiming, inter alia, that genuine issues of material fact existed regarding whether the defendant complied with the requirements of § 14-60 (a), and that the period of the loan agreement exceeded the thirty day time limit set forth in § 14-60 (a) (3). The sole evidence attached to their opposition memoranda was a transcript excerpt from Sabatini's January 6, 2015 deposition. On November 27, 2015, the court issued a memorandum of decision rendering summary judgment in favor of the defendant in each of the cases. The court found that the defendant "satisfied its obligations pursuant to [ § 14-60 ] in that the Martins provided proof of valid insurance coverage during the dates of May 9, 2013, and June 19, 2013," and that the Martins "had possession of the loaner vehicle for [twenty-nine] days and [twenty] hours at the time of the accident as they were awaiting the pending registration for the new vehicle." Accordingly, the court concluded that the defendant complied with § 14-60 and was protected from liability for the accident. These consolidated appeals followed. We first set forth our standard governing review of a trial court's decision to grant a motion for summary judgment. " Practice Book [§ 17-49 ] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.... The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.... A material fact . [is] a fact which will make a difference in the result of the case.... Finally, the scope of our review of the trial court's decision to grant the plaintiff's motion for summary judgment is plenary." (Citations omitted; internal quotation marks omitted.) DiPietro v. Farmington Sports Arena, LLC , 306 Conn. 107, 116, 49 A.3d 951 (2012). Additionally, because this appeal involves questions of statutory construction, we set forth our well established principles of statutory interpretation. "When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply.... In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." (Internal quotation marks omitted.) Connecticut Energy Marketers Assn. v. Dept. of Energy & Environmental Protection , 324 Conn. 362, 372-73, 152 A.3d 509 (2016). "Statutory interpretation is a question of law, over which our review is plenary." Gomes v. Massachusetts Bay Ins. Co. , 87 Conn. App. 416, 423, 866 A.2d 704, cert. denied, 273 Conn. 925, 871 A.2d 1031 (2005). I On appeal, the plaintiffs assert that the court erred in its computation of the days in the § 14-60 (a) (3) thirty day period because it began on May 9, 2013, the day the loan agreement was signed, and not on May 10, 2013, the following day. Because § 14-60 (a) (3) limits the temporary loan of a dealer number plate to "not more than thirty days in any year," the plaintiffs maintain that the defendant is liable to them because the Hyundai Veloster automobile displayed the dealer number plate when the accident occurred on June 8, 2013, which they allege was the thirty-first day after the loan of the plate. "[ Section 14-60 ] reflects the legislative effort to protect the public from reckless driving of loaned motor vehicles.... By giving an injured person the statutory right to recover from the borrower's insurer when the borrower is at fault, § 14-60 (a) provides an incentive to those who test drive motor vehicles to drive with the same care that they would exercise if they were driving a motor vehicle they owned." (Citation omitted.) Sandor v. New Hampshire Ins. Co. , 241 Conn. 792, 798, 699 A.2d 96 (1997). Section 14-60"permits an automobile dealer to lend a dealer [number] plate to a purchaser of a motor vehicle, for a period not to exceed [thirty] days, while the purchaser's registration is pending ." Cook v. Collins Chevrolet, Inc. , 199 Conn. 245, 249, 506 A.2d 1035 (1986). A dealer that has complied with the requirements set forth in § 14-60 is not liable for damages caused by the insured operator of the motor vehicle while that vehicle is displaying the loaned dealer number plate. Id. The loan agreement was signed at approximately 7 p.m. on May 9, 2013. The accident occurred at approximately 3 p.m. on June 8, 2013. Depending on the method used to calculate the thirty day period set forth in § 14-60 (a), the accident occurred within or beyond the thirty day period. For example, if, as the plaintiffs argue, May 9, 2013, the date of the execution of the loan agreement, is included as the first day of the thirty day period, the accident occurred on the thirty-first day after such execution. If May 9, 2013, is not included as one of the thirty days, however, and the first day of the thirty day period begins on May 10, 2013, as the defendant argues, the accident would have occurred on the thirtieth day. The plaintiffs argue that the parties intended for the loan of the dealer number plate to begin on May 9, 2013, and that common sense dictates that insurance coverage began the moment the vehicle left the defendant's lot. Specifically, the plaintiffs posit that by excluding May 9, 2013 in the counting of the thirty day period, "if the borrowing driver were to crash while driving off the lot or later that same day, then [ § 14-60 ] would not protect the dealer because the loan would not yet have begun." (Internal quotation marks omitted.) As evidence in support of the parties' intent, the plaintiffs submitted a transcript excerpt from Sabatini's deposition, in which he stated that May 9 was the first day of the Martins' loan period. In its memorandum of decision, the court determined that the plaintiffs' argument that "the court must accept the first date" is "contrary to [our] case law ." Nevertheless, the court noted, even if it accepted, arguendo, the plaintiffs' argument, and used twenty-four hour periods beginning from 7 p.m. on May 9, 2013, to calculate the thirty day period, "the [Martins] had possession of the loaner vehicle for [no more than] [twenty-nine] days and [twenty] hours at the time of the accident ." We agree with the court that the accident did not occur more than thirty days after the execution of the loan agreement even if the thirty day period set forth in § 14-60 (a) began at approximately 7 p.m. on May 9, 2013. The only way for the thirty day period set forth in § 14-60 (a) to have expired before June 8, 2013, the date of the accident, was if the five hours remaining in the day after the execution of the loan agreement at approximately 7 p.m. on May 9, 2013, were counted as one full day, and no relevant Connecticut precedent was offered by the plaintiffs in support of this approach. Section 14-60 (a) (3) provides in relevant part that "[n]o dealer or repairer may loan a motor vehicle or number plate . for not more than thirty days in any year ." It appears that neither the computation method nor the interpretation of the phrase "not more than thirty days" contained in § 14-60 (a) (3) has been previously discussed by our appellate courts. We are mindful that "[i]n the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language; and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly. General Statutes § 1-1 (a). Where a statute does not define a term, it is appropriate to look to the common understanding expressed in the law ." (Internal quotation marks omitted.) Police Department v. State Board of Labor Relations , 225 Conn. 297, 301 n.6, 622 A.2d 1005 (1993). Neither § 14-60 nor title fourteen of the General Statutes includes a definition for the word "day." The statute also does not specify how to count days in order to meet the "not more than thirty days in any year" requirement. Our case law, however, beginning 200 years ago, provides for the general definition of a day. "It is a well known rule of the common law, that a day comprises twenty-four hours, extending from midnight to midnight, including morning, evening and night, and is called the natural day. When a day is spoken of in law, it comprehends that period of time. When an act is to be done on a particular day, it may be done at any time between those hours." Fox v. Abel , 2 Conn. 541, 542 (1818). Approximately 125 years ago, our Supreme Court in Miner v. Goodyear Glove Mfg. Co. , 62 Conn. 410, 26 A. 643 (1892), also addressed the meaning of the word "day" in a statute. The court concluded that "[t]he current of authorities is substantially unvarying to the effect that when the word 'day' is used in a statute or in a contract, it will, unless it is in some way restricted, be held to mean the whole twenty-four hours. Thus, when the statute above quoted fixes the period of sixty days, it must be taken to mean days in the sense of the law.... The day on which the proceedings were commenced must be excluded. For the day and the act being coterminous and of equal length, nothing could precede the act that did not also precede the day." (Citations omitted.) Id., at 411, 26 A. 643. Approximately 95 years ago, our Supreme Court in Austin, Nichols & Co., Inc. v. Gilman , 100 Conn. 81, 84, 123 A. 32 (1923), considered the issue of computation of days where a statute provided that a notice of intention had to be recorded in the town clerk's office not less than fourteen days prior to a sale. It similarly determined that "[u]nless settled practice or established custom, or the intention of the parties, or the terms of a statute, have included in the computation the date or act of accrual, it is to be excluded from the computation. This is not only our established rule, but the rule established by modern authority, applicable to all kinds of instruments, to statutes, and to rules and orders of court." Our courts have consistently followed this computation method. See, e.g., Commissioner of Transportation v. Kahn , 262 Conn. 257, 264, 811 A.2d 693 (2003) ("we are guided by the general rule . that where a period of time is to be calculated from a particular date or event, the day of such date or event is excluded from the computation" [internal quotation marks omitted] ); Lamberti v. Stamford , 131 Conn. 396, 397-98, 40 A.2d 190 (1944) ("[i]t is well settled that the day of the act from which a future time is to be ascertained is to be excluded from the computation"); and Wikander v. Asbury Automotive Group/David McDavid Acura , 137 Conn. App. 665, 671-72, 50 A.3d 901 (2012) ("for purposes of determining when a filing period runs, we generally do not count the first day, the day of the act"); see also, annot., 98 A.L.R.2d 1338, § 3 (1964) ("[i]n the absence of anything showing an intention to count only 'clear' or 'entire' days, it is generally held that in computing the time for performance of an act or event which must take place a certain number of days before a known future day, one of the terminal days is included in the count and the other is excluded"). The plaintiffs do not dispute the date and time on which the loan agreement was signed, or the date and time of the accident. Accordingly, viewing the evidence in the light most favorable to the plaintiffs, there are no genuine issues of material fact regarding the thirty day period to be applied pursuant to § 14-60 (a). The resolution of this claim depends, instead, on the legal issue of whether the computation of time starts on May 9, 2013, the date of the execution of the loan agreement, or on May 10, 2013, the first full day after such execution. On the basis of our general rule for the computation of days and the common understanding of a "day" as used in our case law, May 10, 2013, is the first day of the thirty day period. The accident on June 8, 2013, occurred not more than thirty days following the loan agreement and, therefore, was within the statutory time limit set forth in § 14-60 (a). Because the accident occurred within the thirty day period set forth in § 14-60 (a), the defendant is entitled to its protection against liability to the plaintiffs. II The plaintiffs also claim that genuine issues of material fact exist in that the defendant failed to comply with two other requirements of § 14-60 (a) for protection from liability. As support for their claim, they assert that the loan agreement submitted into evidence did not contain a selection of one of the three available options: "service customer," "prospective buyer," or "registration pending." These terms parrot the options set forth in § 14-60 (a) (1), (2) and (3). The plaintiffs additionally claim that since the vehicle registration process was not completed until June 10, 2013, because the registration was not "pending," as required by § 14-60 (a) (3), until two days after the accident. With respect to the plaintiffs' first claim, there is nothing in § 14-60 (a) that requires a written selection of one of the three statutory options, each of which contemplates the use of dealer number plates on vehicles for a limited duration. In this case, it is not disputed that the dealer number plate was going to be displayed on the new automobile that the Martins had purchased, and not on a vehicle to be used by them while their vehicle was being serviced, or on a vehicle being demonstrated to them. Additionally, with respect to the use of a dealer number plate pursuant to § 14-60 (a), it is clear that this statute is intended both to encourage dealers to ensure that the customer has insurance coverage; see Cook v. Collins Chevrolet, Inc. , supra, 199 Conn. at 250-52, 506 A.2d 1035 ; which requirement was indisputably satisfied in this case, and to encourage the user of the dealer number plate to drive with care. See Sandor v. New Hampshire Ins. Co. , supra, 241 Conn. at 798, 699 A.2d 96. With respect to the plaintiffs' second claim, the plaintiffs assert that the Martins' registration for the Hyundai Veloster automobile was a transfer of an existing registration and not a new "pending" registration under § 14-60 (a) (3). We have not found any appellate interpretation of "pending registration" as set forth in § 14-60 (a). We, however, do not accept the plaintiffs' narrow interpretation of that statute, which would permit the loan of dealer number plates only for new pending registrations of purchased vehicles and not for the transfer of registrations between vehicles in connection with a purchase of a new vehicle. In other words, to accept the plaintiffs' interpretation and limit § 14-60 (a) (3) only to new registrations would mean that any purchaser of a motor vehicle from a dealership who also trades in a vehicle or transfers the number plates from an old vehicle to a new vehicle, would not be able to borrow a dealer number plate while the registration process was pending. "The purpose of [ § 14-60 ] is to make effective the statutory provision to require the registration of motor vehicles and to prevent avoidance thereof.... It was not intended that others, under cover of the general number or distinguishing mark of the dealer, should be able to operate cars belonging to or controlled by themselves." (Citations omitted; internal quotation marks omitted.) State v. Baron Motors, Inc. , 2 Conn. Cir. Ct. 378, 381, 199 A.2d 355 (1964). Simply put, the statute permits the loan of dealer number plates, for a limited time, to a person who purchased a vehicle from the dealer, while waiting for that vehicle to be registered with the department of motor vehicles, or otherwise pending the registration process. The circumstances of the present case are akin to Cook v. Collins Chevrolet, Inc. , supra, 199 Conn. at 247, 506 A.2d 1035, where in that case, the dealer loaned a dealer number plate to the purchaser of a truck while the registration for the truck was pending. The truck owner was involved in an accident within the time period permitted under § 14-60 (a) (3) and the truck owner subsequently registered the truck in his own name two days after the accident. Id. The court did not err in concluding that the defendant met its burden in demonstrating that the parties to the loan agreement intended for the defendant to loan the dealer number plate for up to thirty days while the registration was pending because of the missing certificate of origin for the newly purchased vehicle. The defendant complied with the requirements of § 14-60 (a) by obtaining proof of insurance from the Martins for that period of time. As discussed in part I of this opinion, the accident occurred within that time period. The plaintiffs have not demonstrated the existence of any genuine issues of material fact that contradict the defendant's compliance with § 14-60 (a). Although the parties failed to designate on the loan agreement form, via a check in a box, the specific category of the loan, the undisputed evidence submitted in support of the motions for summary judgment was that the Martins did not borrow the dealer number plate to test drive a vehicle nor did they have a vehicle undergoing repairs. There are no other relevant factors that would raise a genuine issue of material fact regarding the defendant's compliance with § 14-60. See Cook v. Collins Chevrolet, Inc. , supra, 199 Conn. at 252, 506 A.2d 1035 (dealer entitled to summary judgment because of its full compliance with § 14-60 when purchaser was involved in accident with vehicle displaying dealer number plate while registration was pending). Accordingly, the court properly rendered summary judgments in favor of the defendant against each of the plaintiffs. The judgments are affirmed. In this opinion the other judges concurred. In AC 38699, the plaintiff, Casey Leigh Rutter, commenced an action against the defendants Luis Martins, Jorge Martins, Danbury Fair Hyundai, LLC, Adam Janis, Eagle Electric Service, LLC, and State Farm Automobile Insurance Company. In AC 38792, the plaintiff, Nancy Beale, Administratrix of the Estate of Lindsey Beale, commenced an action against the defendants Luis Martins, Jorge Martins, Danbury Fair Hyundai, LLC, Adam Janis and Eagle Electric Service, LLC. In AC 38793, the plaintiff, Jason Ferreira, commenced an action against the defendants Luis Martins, Jorge Martins, Danbury Fair Hyundai, LLC, Adam Janis and Eagle Electric Service, LLC. The complaints arise out of the same motor vehicle accident. The plaintiffs filed a motion to consolidate the three appeals, which this court granted on June 28, 2016. For the purposes of this opinion, all three plaintiffs will be collectively referred to as the plaintiffs. General Statutes § 14-60 (a) provides in relevant part: "No dealer or repairer may loan a motor vehicle or number plate or both to any person except for . (3) when such person has purchased a motor vehicle from such dealer, the registration of which is pending, and in any case for not more than thirty days in any year , provided such person shall furnish proof to the dealer or repairer that he has liability and property damage insurance which will cover any damage to any person or property caused by the operation of the loaned motor vehicle, motor vehicle on which the loaned number plate is displayed or both. Such person's insurance shall be the prime coverage. If the person to whom the dealer or repairer loaned the motor vehicle or the number plate did not, at the time of such loan, have in force any such liability and property damage insurance, such person and such dealer or repairer shall be jointly liable for any damage to any person or property caused by the operation of the loaned motor vehicle or a motor vehicle on which the loaned number plate is displayed...." (Emphasis added.) See generally Cook v. Collins Chevrolet, Inc. , 199 Conn. 245, 506 A.2d 1035 (1986). Although Jorge Martins, who is described in the court's memorandum of decision as Luis Martins' father, did not sign the loan agreement, it is undisputed that he was a co-owner of the 2013 Hyundai Veloster automobile that was the subject of that agreement. We thus refer at times to both of them in connection with the purchase of that automobile and use of the defendant's dealer number plate. Danbury Fair Hyundai, LLC, filed the motions for summary judgment; therefore, in this opinion Danbury Fair Hyundai, LLC, will be referred to as the defendant. The other defendants, Luis Martins, Jorge Martins, Adam Janis, Eagle Electric Service, LLC, and State Farm Automobile Insurance Company are not parties to this appeal and will be referred to by name. In its memorandum of decision, the court referred to the loan of a "dealer plate." For the purposes of this opinion, we will refer to a number plate as a "dealer number plate." Section 14-60 (a) (3) requires that the person loaned a dealer number plate must provide proof of insurance to the dealer, which will cover, from the time of such loan, any damage to any person or property caused by the operation of the motor vehicle on which the loaned dealer number plate is displayed. Thus, the computation of time for insurance coverage purposes can be different from the computation of the statutory thirty day use limitation. See footnote 7 of this opinion. If such five hours were accepted as the first day, the period of the loan agreement in real time would be less than thirty days; it would be twenty-nine days and five hours in this case. Generalizing and applying the plaintiffs' suggested computation of the statutory thirty day period, the first day always would be less than a full day unless the operative act occurred on or before 12:01 a.m. on the day of that act. Pursuant to our precedent as discussed in this opinion, § 14-60 (a) (3) provides for thirty full days of use of a dealer number plate, even if it means that the total time of use exceeds thirty days by some amount of time less than a full day. The statute also provided that a bill of sale had to be filed for record at least fourteen days prior to the sale. The court held that the phrase "at least fourteen days" evidenced the intent of the legislature that the period should be fourteen full or clear days, and both the first and last days had to be excluded in making the computation. Austin, Nichols & Co., Inc. v. Gilman , supra, 100 Conn. at 85, 123 A. 32. In its memorandum of decision, the court, quoting Midland Funding, LLC v. Garrett , Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-11-6011332-S (December 23, 2011) (53 Conn. L. Rtpr. 161), 2011 WL 7029845, noted: "In general there are four ways of counting days; (1) [c]ount no terminal days (beginning day or ending day); (2) [c]ount only one terminal day; (3) [c]ount both terminal days; and (4) [u]sing one of the above methods but count only business days." The approach to be used in a particular case, according to the court, is to be determined by one or more of the following: "statute, Practice Book rule and the language surrounding the mention of days in statutes, regulations, rules, contracts and case law." In this case, we rely primarily on our case law precedent. Because some sections of title fourteen of the General Statutes contain provisions that set hourly time measurements, they logically demonstrate that the legislature knows how to use a measurement of time other than a day when it intends to do so. See, e.g., General Statutes § 14-274 (prohibiting commercial drivers from operating motor vehicle if they have been on duty "more than sixteen hours in the aggregate in any twenty-four-hour period"); General Statutes § 14-382 (owners of snowmobiles or all-terrain vehicles required to file change of address with commissioner "[w]ithin forty-eight hours"). This court has recognized that "[i]t is a fundamental principle of statutory construction that courts must interpret statutes using common sense and assume that the legislature intended a reasonable and rational result." (Internal quotation marks omitted.) Wikander v. Asbury Automotive Group/David McDavid Acura , supra, 137 Conn. App. at 672, 50 A.3d 901. Additionally, § 14-60 (a) does not require that the thirty day loan period must occur consecutively. The statutory requirement is that the plate be used "not more than thirty days in any year." It can be reasonably inferred, therefore, that a dealer may loan a dealer number plate in fewer than thirty day increments, so long as the total loan period does not cumulate to more than thirty days in any year. It would add complexity to record keeping, for example, if dealerships had to maintain precise records of loan periods for fractional or partial days, e. g., by hours or minutes. If the legislature had intended to permit fractional hourly or minute counting of the time period, the statute would more likely have stated the time period in hours and/or minutes instead of days. See generally Gomes v. Massachusetts Bay Ins. Co. , supra, 87 Conn. App. at 422-30, 866 A.2d 704. Nevertheless, even if an hourly computation method were permissible in these cases, the accident still occurred twenty-nine days, twenty hours after the execution of the loan agreement at approximately 7 p.m. on May 9, 2013. Using the computation method required by our case law, however, the accident occurred on the fifteenth hour of the thirtieth day, i.e., at approximately 3:00 p.m. on June 8, 2013. General Statutes § 14-60 (a) provides three purposes for which a dealer or repairer may loan a number plate: "(1) the purpose of demonstration of a motor vehicle owned by such dealer, (2) when a motor vehicle owned by or lawfully in the custody of such person is undergoing repairs by such dealer or repairer, or (3) when such person has purchased a motor vehicle from such dealer, the registration of which is pending ." As in Wells Fargo Bank, N.A. v. Strong , 149 Conn. App. 384, 89 A.3d 392, cert. denied, 312 Conn. 923, 94 A.3d 1202 (2014), even if the parties to the loan agreement did not select one of the three boxes in the loan agreement, that alleged error did not impede the defendant's ability to meet its burden of proving that it was entitled to summary judgment as a matter of law. Id., at 401, 89 A.3d 392. In the present case, the plaintiffs were not parties to the loan agreement. "It is well settled that one who [is] neither a party to a contract nor a contemplated beneficiary thereof cannot sue to enforce the promises of the contract . Under this general proposition, if the plaintiff is neither a party to, nor a contemplated beneficiary of, [the] agreement, she lacks standing to bring her claim for breach of [contract]." (Citations omitted; internal quotation marks omitted.) Cimmino v. Household Realty Corp. , 104 Conn. App. 392, 395-96, 933 A.2d 1226 (2007), cert. denied, 285 Conn. 912, 943 A.2d 470 (2008). In support for this assertion, the plaintiffs rely on Dugay v. Brothers' Toyota, Inc. , Superior Court, judicial district of Hartford, Docket No. CV-97-0572734-S (September 11, 2000) (28 Conn. L. Rptr. 69), 2000 WL 1405670, which, as a Superior Court case, is not binding precedent on this court.

12495600

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

Micek-Holt v. Papageorge

2018-03-27

AC 39668

1213

1238

183 A.3d 1213

183

West's Atlantic Reporter, Third Series

Connecticut Appellate 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. Mary Papageorge v. Andrea Micek-Holt et al. AC 39668 Appellate Court of Connecticut. Argued January 16, 2018 Officially released March 27, 2018 Mathew Olkin, Willimantic, for the appellants (named defendant et al. in the first case, plaintiff in the second case). Beth A. Steele, Norwich, for the appellee (plaintiff in the first case, named defendant in the second case). Sheldon, Elgo and Eveleigh, Js.

11520

69396

PER CURIAM. This appeal arises from two cases, which were consolidated for trial, involving a contract for the purchase of certain real property located in Thompson. Mary Papageorge and George Papageorge appeal from the judgments of the trial court, rendered after a court trial, in favor of Andrea Micek-Holt, executrix of the estate of Edward W. Micek. We affirm the judgments of the trial court. In 2010, the plaintiff's decedent entered into a lease agreement with Kalami Corporation, which was owned by the family of Mary and George Papageorge (Papageorges). Pursuant to the lease agreement, the Papageorges, along with their two children, were permitted to rent a home owned by the plaintiff's decedent. The term of the lease ran from August 1, 2010 to September 1, 2011. The plaintiff's decedent and Mary Papageorge also executed a purchase and sale agreement, pursuant to which Mary Papageorge agreed to purchase the home once the term of the lease had expired. A closing was scheduled for August 31, 2011. The closing never occurred, yet the Papageorges continued to reside in the subject property. On October 28, 2014, Micek-Holt, as executrix of the estate of Edward W. Micek, commenced one of the two underlying actions. See Micek-Holt v. Papageorge , Superior Court, judicial district of Windham at Putnam, Docket No. CV-14-6008881-S (September 26, 2016) (first action). Micek-Holt pleaded seven claims in her complaint sounding in breach of contract, unjust enrichment, declaratory judgment, quiet title, foreclosure of equitable title, enforcement of the purchase and sale agreement, and eviction. On December 18, 2014, the Papageorges, along with Angelina Papageorge, filed an answer, special defenses and a counterclaim directed to Micek-Holt, both individually and in her capacity as the executrix of her decedent's estate. On August 25, 2015, Mary Papageorge commenced the second of the two underlying consolidated actions. See Papageorge v. Micek-Holt , Superior Court, judicial district of Windham at Putnam, Docket No. CV-15-5006173-S (September 26, 2016) (second action). Mary Papageorge raised six counts in her complaint sounding in breach of contract, fraud, unjust enrichment, abuse of process, intentional infliction of emotional distress and negligent infliction of emotional distress. The claims were directed to Micek-Holt in her individual capacity, in her capacity as executrix of her decedent's estate, and in her capacity as a beneficiary of her decedent's estate. As relief, Mary Papageorge sought $5.5 million in damages, a determination that she was the equitable owner of the subject property, and an order requiring Micek-Holt to convey legal title to the subject property to her without contingencies and without a mortgage. On March 23, 2016, Micek-Holt, in all of her capacities, filed an answer and special defenses. On August 1, 2016, the first action filed by Micek-Holt and the second action filed by Mary Papageorge were consolidated. Over the course of two days, the consolidated cases were tried to the court. On September 26, 2016, the trial court issued a memorandum of decision rendering judgments in Micek-Holt's favor on all counts in her complaint and on all counts in the Papageorges' counterclaim in the first action, and in Micek-Holt's favor on all counts in Mary Papageorge's complaint in the second action. By way of relief, the court ordered the parties to meet for a closing on October 24, 2016, at which, inter alia: (1) Micek-Holt would convey to Mary Papageorge legal title to the property; (2) Mary Papageorge would convey a check to Micek-Holt in the amount of $78,336.40; and (3) Mary Papageorge would deliver to Micek-Holt a note secured by a mortgage. In addition, the court ordered Mary Papageorge to pay Micek-Holt the sum of $17,401.50, to reimburse her for taxes that Micek-Holt had paid for her on the subject property, plus attorney's fees. The court further ordered that, if the closing did not occur as ordered, then, inter alia: (1) the Papageorges would either have to vacate the property by October 26, 2016, or be required to pay $150 in daily use and occupancy payments and be subject to the execution of an eviction order; (2) Mary Papageorge's interest in the property would be extinguished; and (3) a judgment quieting title in favor of Micek-Holt would enter. On September 29, 2016, the Papageorges appealed. On appeal, the Papageorges challenge the trial court's decision on several grounds. After examination of the record on appeal and the parties' briefs and arguments, we conclude that the judgments of the trial court should be affirmed. Because the trial court thoroughly addressed the arguments raised in this appeal, we adopt its well reasoned decision as a statement of the facts and the applicable law on the issues. See Micek-Holt v. Papageorge , Superior Court, judicial district of Windham at Putnam, Docket No. CV-14-6008881-S, 2016 WL 6393593 (Conn. Super. September 26, 2016), and Papageorge v. Micek-Holt , Superior Court, judicial district of Windham at Putnam, Docket No. CV-15-5006173-S (September 26, 2016) (reprinted at 180 Conn. App. at 545, 183 A.3d 1213). Any further discussion by this court would serve no useful purpose. See, e.g., Woodruff v. Hemingway , 297 Conn. 317, 321, 2 A.3d 857 (2010) ; Brander v. Stoddard , 173 Conn. App. 730, 732, 164 A.3d 889, cert. denied, 327 Conn. 928, 171 A.3d 456 (2017). The judgments are affirmed. APPENDIX ANDREA MICEK-HOLT, EXECUTRIX (ESTATE OF EDWARD F. MICEK) v. MARY PAPAGEORGE ET AL. MARY PAPAGEORGE v. ANDREA MICEK-HOLT ET AL. Superior Court, Judicial District of Windham at Putnam File Nos. CV-14-6008881-S and CV-15-5006173-S Memorandum filed September 26, 2016 Proceedings Memorandum of decision in actions for, inter alia, breach of contract. Judgments for the plaintiff in the first case and for the named defendant et al. in the second case. Mathew Olkin , for the defendants in the first case, plaintiff in the second case. Beth A. Steele , for the plaintiff in the first case, named defendant et al. in the second case. Opinion BOLAND, J. Over a period of two days, this court tried these two matters, which involve conflicting claims of the same parties. These pending suits are actually numbers three and four between them, having been preceded by a 2011 summary process action in the Superior Court, geographical area number eleven, captioned, "Edward Micek v. George Papageorge," Docket No. 11-8151. That case went to judgment, the terms of which have a bearing upon the matters before me, as will be discussed below. Edward Micek filed a later action of the same nature in the same venue, and with the same caption, bearing Docket No. 11-9324, but he died during its pendency and it was dismissed for inactivity. Given the lengthy and increasingly acrimonious tone of this dispute, it is the intent of this jurist that this decision resolve all the issues outstanding between these parties so as to obviate the need for any later lawsuits. I INTRODUCTION At the heart of the parties' dispute is a single-family home located at 361 Thompson Road in the town of Thompson. The home was built almost two hundred years ago, but photographs submitted depict it as a stately residence in overall good condition. At all relevant times until his death in 2014, Edward Micek was the land-record owner of the home. Andrea Micek-Holt is his daughter and the executrix of his estate. The decedent resided at 366 Thompson Road, immediately across the street from number 361. His daughter resides there today. At some point in 2010, the decedent decided to sell number 361. He was acquainted with Mary Papageorge and George Papageorge, a married couple, as they owned a business which supplied his premises with heating oil. The deal which ensued from their negotiations provided that the Papageorges would take occupancy under a lease from August of 2010 through August 31, 2011. At the same time, they entered into a contract of purchase and sale. Only Ms. Papageorge was named as a buyer. That contract provided for a closing at the end of the lease term. The lease specifically incorporates the provisions of that contract, even though, oddly, certain of their provisions are contradictory. In addition to Mary and George, two of their children also occupied the home. One of them, Angelina, is now an adult and remains a resident. Named as a defendant in the 2014 case, she has appeared but has not asserted any separate defenses on her own behalf. She has joined her parents as a counterclaim plaintiff on two of their counts. She did not attend the trial. The orders which are set forth below are applicable to her to the same extent as to her parents. Under the lease, the actual lessee was Kalami Corporation, an entity named as an additional defendant in the 2014 case. Ms. Papageorge testified that the corporation was owned by her family and engaged in real estate holdings. The corporation was a party only to the lease, and not to the sales agreement. Like Angelina, the corporation has appeared and has not asserted any separate defenses on its own behalf. Also, it has not asserted any additional claims on its behalf. The difficulties outlined below commenced in mid-August of 2011, a few weeks preceding the anticipated closing date. A Micek-Holt Claims Alleging that by means of a variety of ruses and subterfuges the Papageorges have frustrated every reasonable effort to complete the title conveyance and pay the agreed upon consideration, Ms. Micek-Holt sues on behalf of the estate in seven counts. These include claims for (1) breach of contract; (2) unjust enrichment; (4) to quiet title; (5) to foreclose defendants' equitable claims to the property; (6) to specifically enforce the terms of the 2010 contract; and (7) to evict them. Her third count seeks a declaratory judgment in terms generally tracking the material in the other six counts. The Papageorges deny all material allegations of each count. They also plead seven separate special defenses. Two of these can be disposed of summarily. Number six asserts that the complaint should be dismissed in its entirety, as plaintiff has failed to allege any facts or assert any legal basis upon which relief can be granted. This is an improper special defense, and it is contradictory to the findings this court sets forth below. Number seven of the Papageorge special defenses asserts that Kalami Corporation was dissolved and therefore no legal claims may be asserted against it. Whether true or not, this pleading is one Ms. Papageorge, who is not an attorney, is not permitted to make on behalf of this corporation. As indicated above, the court views the corporation as playing no role in this trial. The remaining special defenses will be discussed more fully momentarily. B Papageorge Claims In the 2014 action, Mary Papageorge filed on her own behalf claims for breach of contract, fraud, unjust enrichment, and abuse of process against Ms. Micek-Holt both individually and as a representative of her father's estate. Both George and Angelina join her in asserting additional claims for intentional and negligent infliction of emotional distress. The relief she seeks is an order that the estate convey title to 361 Thompson Road to her without further payment by her, and damages of $2,500,000. In the 2015 action, Ms. Papageorge is the sole plaintiff, in six counts which are essentially restatements of the material just described. In each count she sues Ms. Micek-Holt in each of her two capacities. She seeks, again, a conveyance of clear title, but her demand for damages has risen to $5,500,000. Ms. Micek-Holt, individually and in her representative capacity, denies all claims. In addition, she sets forth a series of special defenses, including unclean hands, fraud, waiver, reliance upon advice of counsel, failure to meet statutory limits for making these claims, a defense relating to her status as a defendant, and to any claims on the lease, as the lessee, Kalami Corporation, has been dissolved with no apparent successor to its interests. II STIPULATED FACTS The parties stipulated to the following facts: 1. On August 15, 2010, Edward W. Micek was the owner of property known as 361 Thompson Road, Thompson, Connecticut. 2. On that date, he entered into a written lease with Kalami Corporation for the use and occupancy of 361 Thompson Road, Thompson, CT. The lease term was from August 1, 2010, to September 1, 2011. The lease provided that the Papageorges and their two children would occupy the property. 3. Simultaneously with that lease, he entered into a purchase and sale agreement for that property with Mary Papageorge. The agreement called for a closing on August 31, 2011. 4. Such closing never occurred. 5. Micek filed a summary process action, which resulted in an April 15, 2013 judgment by the Honorable Leeland J. Cole-Chu. They stipulated also that they have been unable to agree upon the extent of the res judicata and, or, collateral estoppel effect of that decision. III ISSUES DECIDED IN FIRST SUMMARY PROCESS CASE A Findings and Orders of the Court This court has carefully scrutinized Judge Cole-Chu's decision. It followed a trial of several days duration in January of 2013, and it makes apparent that the parties had the opportunity to air all of the grievances they held against each other at that time. The court found that Kalami Corporation had fulfilled all of its obligations as tenant (or sublessor) under the one year lease. Also, it found that Mary Papageorge had been ready, able and willing to consummate the real estate closing on September 1, 2011. What had impeded closing was an argument as to the amount of cash which the buyer would have to pay. The contract stated the purchase price to be $250,000, and provided that it would be paid in the form of three deposits totaling $20,000 plus a note from buyers to seller for $229,000, with the note to be secured by a mortgage upon the subject premises. The $1000 discrepancy between the express purchase price and the payment schedule is in the original. In the 2013 trial, the parties differed as to how much the deposits actually totaled, and what credits and offsets buyer was entitled to in consideration of work done upon the premises. Judge Cole-Chu resolved their disputes as well as the addition error by crediting buyer with effective down payments exceeding $21,000, thus recognizing $229,000 as the proper amount remaining to be paid by the note. Given that finding, he ruled that aside from normal and customary closing adjustments, the buyer had to bring no additional cash to the closing. Additionally, he heard and adjudicated their claims as to the amount and value of the buyer's preclosing work. His decision refers specifically to her having remediated mold, replaced a water heater, sanded and varnished parts of the flooring, and removed approximately seven trees. He made no separate calculation of any offset attributable to this work. In that case, as in this one, she produced no evidence of the cost of any of that work. Also, the work could be viewed as an aspect of the purchase and sale agreement, which provided that the premises were to be conveyed as is, with any improvements the duty of the buyer. Beyond calculating the appropriate remainder of the purchase price, the decision also resolves an issue relating to Ms. Papageorge's status with respect to the subject property. Edward Micek had described her and the rest of her family as tenants. Instead, the court held, Ms. Papageorge became the equitable owner of the property when she entered into the purchase and sale agreement in August of 2010. This holding was consistent with precedent summarized just recently in Southport Congregational Church-United Church of Christ v. Hadley , 320 Conn. 103, 128 A.3d 478 (2016) : "[e]quitable conversion is a settled principle under which a contract for the sale of land vests equitable title in the [buyer].... Under the doctrine of equitable conversion . the purchaser of land under an executory contract is regarded as the owner, subject to the vendor's lien for the unpaid purchase price, and the vendor holds the legal title in trust for the purchaser.... The vendor's interest thereafter in equity is in the unpaid purchase price, and is treated as personalty . while the purchaser's interest is in the land and is treated as realty." (Citation omitted; internal quotation marks omitted.) Id., at 111, 128 A.3d 478. Neither party filed any appeal of that judgment. B Impact of that Decision upon Present Cases Ms. Papageorge pleads res judicata as a special defense applicable to Ms. Micek-Holt's counts sounding in breach of contract and for possession of the property. Via a pretrial motion in limine as well as in a motion for summary judgment filed two days before trial, she claimed that the 2013 decision served to collaterally estop the estate from raising these issues in the present cases. Collateral estoppel is the appropriate concept by which to measure the parties' present dispute over the construction of the lease and purchase and sale agreement, and the precise amount of the purchase price. "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." (Internal quotation marks omitted.) Lighthouse Landings, Inc. v. Connecticut Light & Power Co. , 300 Conn. 325, 343-44, 15 A.3d 601 (2011). Res judicata, in contrast, precludes the litigation in later actions of claims which existed at the time of a prior action but which were not raised therein. "Generally, 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.... Public policy supports the principle that a party should not be allowed to relitigate a matter which it already has had an opportunity to litigate." (Citations omitted; internal quotation marks omitted.) Wheeler v. Beachcroft, LLC , 320 Conn. 146, 156-57, 129 A.3d 677 (2016). Applying those measures, this court determines that the 2013 judgment squarely answered all of the parties' questions on lease construction and the enforceability of the purchase and sale agreement, and collateral estoppel thus precludes the parties from litigating those issues a second time in this case. Therefore, the court accepts that the equitable owner of the real estate is Ms. Papageorge, subject to her obligation to pay the remainder of the purchase price. Likewise, the court will give no weight to Ms. Papageorge's references (sketchy as they were) to the lease-term troubles she incurred with tree removal, or floor repair or replacement, or installing a new water heater, or mold remediation. Judge Cole-Chu decided them unambiguously. The decision obviously contemplated further performance on the part of each side as to details which remained executory at that time; these included delivery of a deed transferring title and payment in the form of the note and mortgage. Judge Cole-Chu could not have anticipated whether the parties' performance of those details would provide any additional circumstances amounting to a breach subsequent to April 15, 2013, and so the third prong of the Wheeler test cannot be found to have been met as to events following his decision. In Weiss v. Weiss , 297 Conn. 446, 998 A.2d 766 (2010), the court indicated that whether an action involves the same claim as a prior action such that it triggers the doctrine of res judicata requires a transactional analysis. A court must determine pragmatically whether a connected series of transactions form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage. Events which occur after a decision is rendered cannot easily be immunized from scrutiny by a later court. Thus, neither collateral estoppel nor res judicata bar Ms. Micek-Holt from seeking a ruling on the actions taken or avoided by Ms. Papageorge to complete the contract's provisions after April 15, 2013. In so ruling, the court is also rejecting the conclusory allegations of the first special defense filed by Ms. Papageorge claiming res judicata, and the conclusory allegations of her fourth special defense alleging collateral estoppel, except to the limited extent set forth in this memorandum. Ms. Papageorge's counterclaims in the present cases themselves raise a question of preclusion. Her breach of contract count, in particular, is heavily dependent upon proof of circumstances which took place in August and September of 2011 and their consequences to her. She frames that count so as to include both contract and tort elements. As to the tort elements, at least, they could not have been litigated in the summary process action. As stated in Pollansky v. Pollansky , 162 Conn. App. 635, 133 A.3d 167 (2016), "[s]ummary process proceedings are limited to a determination of who is entitled to possession of real property.... The plaintiff is correct that counterclaims for money damages are not permitted ." (Citations omitted.) Id., at 658, 133 A.3d 167. Additionally, she charges Ms. Micek-Holt and the estate with fraud. "[F]raud is an exception to res judicata"; Weiss v. Weiss , supra, 297 Conn. at 459, 998 A.2d 766 ; and thus her fraud count cannot be deemed precluded by the 2013 decision. Finally, her counts alleging both intentional and negligent infliction of emotional distress arise from events which occurred after the decision. Like the postdecision breach of contract claims, they cannot be said to have been decided by Judge Cole-Chu. Accordingly, this court will evaluate her claims on these causes of action on their merits. C What Was Supposed to Happen After April 15, 2013? The 2013 decision neither rewrote the parties' agreement nor directed how and when a closing should take place, but it was issued with a clear implication that Edward Micek, then still living, had an obligation to convey title by deed to Ms. Papageorge. Reciprocally, it indicated she was obliged to sign a note in the amount of $229,000, secured by a mortgage in his favor. The court left it to the parties to work out the time and place of a closing and resolve what it viewed as the ministerial duties attendant upon transferring title to a parcel of real estate. IV WHAT ACTUALLY HAPPENED FOLLOWING APRIL 15, 2013 A 2013 Closing Preparation On May 13, 2013, Attorney Nicholas Longo, representing Mr. Micek, wrote to Ms. Papageorge, inquiring who her attorney was and attempting to arrange a closing. On May 20, he transmitted a draft note to her attorney, and on May 23, sent to her a draft deed, mortgage, and note. The tenor of his letters was civil and professional. Ms. Papageorge's first written reply is an e-mail dated May 29, in which she indicated that the documents appeared to be in order. She went on, however, to demand (1) a doctor's letter stating that Edward Micek was competent to close; (2) interest of almost a thousand dollars on the money paid as a deposit under the purchase and sale agreement; (3) damages for trees brought down by Hurricane Katrina (sic); (4) and unspecified compensation for landscaping and painting she claimed was owed to her as a result of undocumented verbal understandings reached with Mr. Micek or Ms. Micek-Holt. On June 4, Attorney Longo communicated that the demands were unacceptable, but that his client was still ready to close. He repeated that message on June 18, obviously not having heard from her in the interim. By e-mail on June 21 she stated that "I want everything" denoted in her earlier e-mail, and added new items to that list. First, she refused to be responsible for taxes on the grand list of October 1, 2012, as the documents specified, as she claimed that language exposed her to payment of "back taxes" owed by Mr. Micek. Secondly, she expanded upon the demand for the seller to complete landscaping work on the property. She concluded by saying that she would not hire an attorney until her demands were met, that the seller was stalling and game-playing, and that she had no doubt that she would succeed if either party took this case back to court. No closing occurred in 2013. B Second Summary Process Claim In the middle of July of 2013, the parties' dispute escalated. Observing activity at 361, which he believed violated the spirit and terms of their agreement, Edward Micek demanded to be allowed to inspect the property. Almost simultaneously, the town of Thompson sent him a cease and desist order demanding that he put an end to allegedly illegal auto sales at 361 Thompson Road. While he was the addressee because title to that parcel remained in his name in the land records, he believed that any illegal activity was the doing of the Papageorges. Ms. Papageorge's quick reply was to refuse him access and threaten that she would call the state police if he or anyone representing him set foot on her property. Edward Micek died on March 11, 2014. For reasons as to which one may only speculate, he had filed a second summary process action in geographical area number eleven of this court in December of 2013. That case was pending at the time of his death and was ultimately dismissed as dormant. The court held no meaningful proceedings in that case. C 2014 Closing Preparation Ms. Micek-Holt was appointed executrix of his estate shortly following her father's death. On April 17, 2014, Attorney Harold Cummings wrote to Ms. Papageorge, identifying himself as the estate's attorney and proposing that a closing be held on May 15. On April 30, he wrote to her again, including copies of a proposed deed, note, and mortgage, and inquiring who her attorney would be. In these and in all other written communications with her, the tenor of his writings was civil and professional. Ms. Papageorge rejected these documents, and indicated that she would not be hiring an attorney until the documents conformed to her demands, and until the estate had agreed to compensate her for the items listed in her earlier communications with Attorney Longo. She complained that the instruments submitted now recited that she would be responsible for taxes on the grand list of October 1, 2013, which, again, she rejected as being the responsibility of the estate. She quibbled about the credits she believed the Cole-Chu decision entitled her to. In a telephone conversation memorialized in his e-mail to her of April 30, it appears that she had also objected to the deed's recital of $250,000 as the purchase price, contending that she only owed at most $229,000, minus adjustments she believed she was entitled to. Over the next several weeks, Attorney Cummings attempted to address her complaints about the documents and requested copies of invoices for any work she had commissioned on the property without conceding liability for those items. Ultimately, Attorney Cummings informed her that he and Ms. Micek-Holt would be present at the Thompson town hall on June 30, 2014, to complete the closing. She did not attend. Shortly thereafter, Ms. Micek-Holt filed the 2014 case. D Conclusions as to Breach of Contract After the 2011 breach of contract by Edward Micek, Ms. Papageorge has remained in possession of 361 Thompson Road. With the exception of some homeowner's insurance paid recently, she has paid nothing to Mr. Micek or his estate. In her response both to Attorney Longo and to Attorney Cummings, she has overplayed the hand Judge Cole-Chu dealt her in his decision. His decision did not leave her the option of attaching a bill for additional claims relating to the physical condition of the property. His decision did not even by implication suggest that she was entitled to interest on the deposits paid to the seller. The decision indicated that she was obligated to sign a note for $229,000, without further discounts or further ado. Nor did the decision empower her to ignore Connecticut law and local closing customs while serving as her own attorney in preparing for a closing. Our law, for instance in chapter 223 of the General Statutes, imposes a conveyance tax on the sale of real estate calculated on the full purchase price without regard to the timing of payments between the parties. Thus the deed's recital of a $250,000 price was entirely correct and proper. Similarly, the closing customs of the Windham County Bar Association provide that real estate tax adjustments at closing operate on the premise that "taxes assessed upon the List of the preceding October 1st shall be considered to be applicable to the following fiscal year." It is the rule applicable to all real property in this state that a property owner pays taxes assessed on one year's grand list in two installments in the following fiscal year, one due in July nine months after the grand list is published, and the second in January of the succeeding year. The county customs provide that closing attorneys adjust taxes to the date upon which the closing occurs. Thus, at a closing held on July 1, for instance, the seller would be liable for payment of all taxes up to June 30, all of which were assessed on the grand list published twenty-one months previously. The buyer would be liable for all taxes due as a result of the assessment made on October 1, of the year preceding the closing, as all of the latter are only prospectively due as of the beginning of the fiscal year. That allocation of the property tax burden is exactly what both Attorneys Longo and Cummings attempted to achieve by including in their draft instruments the reference to the last grand list, as opposed to the next one, as Ms. Papageorge insisted. Ms. Papageorge's persistence in making demands not allowed by her earlier court victory, together with her stubborn refusal to retain an attorney who might help her overcome her ignorance of standard provisions as to the form of a deed and the propriety of closing adjustments, combine to qualify as objectively unreasonable her claim that it was the estate or Mr. Micek and not she herself who breached the purchase and sale agreement as it stood as of April 15, 2013. This is then the appropriate moment to reject her second and third special defenses, which, under the respective labels of "accord and satisfaction" and "payment," allege in identical terms that she has paid all sums due under the two 2010 agreements. Each is patently false. Furthermore, these unsubstantiated claims of full payment, together with her resistance for over five years to complete the closing while all along enjoying the benefit of the bargain by remaining in undisturbed possession of the real estate, provide solid support for a finding that she has not shown good faith in this transaction. "Bad faith has been defined in our jurisprudence in various ways. Bad faith in general implies . 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.... [B]ad faith may be overt or may consist of inaction, and it may include evasion of the spirit of the bargain ." (Internal quotation marks omitted.) Brennan Associates v. OBGYN Specialty Group, P.C. , 127 Conn. App. 746, 759-60, 15 A.3d 1094, cert. denied, 301 Conn. 917, 21 A.3d 463 (2011). In light of these findings, the court finds for the plaintiff Micek-Holt on the first count of the 2014 complaint. Her remaining six counts are all derivatives of that count and depend upon the finding that I have reached. Each additional count essentially proposes a different remedy, and each will be examined, below, in the discussion of the equitable response to the present circumstances which this court should direct. V PAPAGEORGE TORT CLAIMS As indicated, Ms. Papageorge and her family have asserted a present total of six claims against the estate and Ms. Micek-Holt, individually. A Breach of Contract Ms. Papageorge has an expansive claim for damages flowing from what she believes to be the multiple contract breaches committed by the defendants. As to events occurring after April 15, 2013, this court finds that her own actions and omissions are the source of any distress she may have suffered. Left to be resolved are her claims that the seller's 2011 breach caused her damages warranting compensation at this time. In her direct testimony, she stated that the earlier breach had ruined her life. What happened, in her words, was a cascading series of calamities, which led to her loss of her business, to adverse civil consequences in the state of Massachusetts, to Bankruptcy Court, and to untold pain and suffering. Briefly summarized, she testified that she and her husband were in the home heating oil business as they negotiated with Mr. Micek. The business did between four and five million dollars a year in sales, and was subject to the vagaries of weather and international oil prices to an extent unusual for other industries but likely common in this one. Critical to the business' success, she maintained, was the ability to obtain a line of credit secured by the owners' home. By virtue of that, the business could borrow to cover today's purchases until customers sent in their payments. Mr. Micek's default made placement of such a lien upon 361 Thompson Road impossible. No line of credit meant no available cash, meant no ability to continue the oil business, meant bankruptcy and all of its ugly sequelae. Credibility is always a critical concern in a trial, and unfortunately for Ms. Papageorge, her own husband's testimony contradicted hers on this theory. He testified that the line of credit was only a marginal concern. Instead, he opined, their ability to describe themselves as homeowners would have been the sufficient remedy to their credit problems. As such, they would appear to their creditors to be people of substance who could be trusted for payments a day or a week later to their wholesale suppliers. Additionally, he conceded that the available equity in the property of about $20,000 was not adequate to the volume of their cash needs. Even before her husband spoke, information elicited on cross-examination by Ms. Micek-Holt's counsel provided additional reason for doubting her direct testimony. In 2012, she was a party to at least three lawsuits brought by business creditors for amounts totaling in the six figures on debts that she had guaranteed for her business. More seriously, the state of Massachusetts had obtained a court order freezing assets belonging to both the Papageorges and their business in that state, and garnishing the business' bank accounts to the extent of some $200,000 for behavior constituting a retail variation on a Ponzi scheme. The company's practice was to accept prepayment from customers in the summer to be applied to deliveries in the fall and winter. When that time came, however, the Papageorges had used the cash to pay other bills. What oil they were able to obtain would be allocated first to new customers on a C.O.D. basis, and the summer customers given fifty or one hundred gallons to silence their complaints until the Papageorges raised enough cash to induce their trade creditors to supply them with more oil-or until the weather improved. Eventually, enough of those customers complained to the Massachusetts Department of Consumer Affairs that it initiated the proceedings described-prior to August 31, 2011, when the Micek breach occurred. Borrowing against the Thompson property was thus not a component of a sound business plan frustrated by Mr. Micek, but a desperate attempt to borrow from Peter to pay Paul. The Massachusetts proceedings dwarf in magnitude those involved in this action and make absurd her claim that the fiscal house of cards she and her husband had erected before the Micek breach tumbled because they were not in a position to place a junior mortgage on 361 Thompson Road, or to hold themselves out as homeowners. Those details illustrate why this court is unpersuaded that the Miceks have any liability to Ms. Papageorge for the 2011 breach. That breach was not the cause of her business debacle. Her claim that bankruptcy and other negative consequences were caused by Mr. Micek has no basis in fact or logic. She was likely in deep financial trouble before she moved to Thompson Road and was certainly in such straits before the expected closing date. Moreover, she offered no evidence of damages such a breach might have occasioned, whether that be doctor bills, counseling costs, lost-income projections, or anything upon which to calculate a fair damage award. On her breach of contract claim, the court finds that she has proven neither liability nor damages to her as a consequence of the 2011 breach, and thus has failed to prove that either Ms. Micek-Holt or the estate is liable to her as a result of that breach. B Fraud After incorporating by reference the ninety-four paragraphs of the breach of contract count, Ms. Papageorge adds that in concealing cash payments prior to August 31, 2011, Ms. Micek-Holt and her father created a false accounting. In what really amounts to a different theory for including this cause of action, she adds an additional charge relating to how they induced her to enter into the "Lease/Contract" in the first place, that is, behavior on their part in August of 2010. She labels all of these actions as fraudulent. "The essential elements of an action in common law fraud . are that: (1) a false representation was made as a statement of fact; (2) it was untrue and known to be untrue by the party making it; (3) it was made to induce the other party to act upon it; and (4) the other party did so act upon that false representation to his injury.... [T]he party to whom the false representation was made [must claim] to have relied on that representation and to have suffered harm as a result of the reliance." (Internal quotation marks omitted.) Simms v. Seaman , 308 Conn. 523, 548, 69 A.3d 880 (2013). As to the accounting-and even assuming that Judge Cole-Chu's memorandum did not definitively resolve that issue-fraud cannot be found in the details of the Micek deposit reckoning. As soon as the number was presented to Ms. Papageorge she disputed it, and thus cannot establish the prong of this test requiring proof that she acted upon the false representation to her detriment. There's not a shred of evidence to suggest that she believed the Micek accounting for a minute. With respect to the claim that fraud tainted the 2010 negotiations, it must be noted that her burden of proof is one of clear and convincing evidence. Reville v. Reville , 312 Conn. 428, 469, 93 A.3d 1076 (2014). Her claim of fraudulent inducement suffers from a distinct lack of pleading specificity; in fact, it is a bald conclusion divorced from any factual allegations which a trier of fact could look to in order to discern whether the elements of fraud had been proven. That pleading defect is perhaps not germane at this time, and potentially curable, but what is not curable is that Ms. Papageorge adduced no evidence indicating that when the parties entered into the various documents in August of 2010 either Mr. Micek or his daughter possessed any intent of doing anything but conveying the property to her in 2011. It's not that her evidence on this point is not clear and convincing, but that, concerning this claim, she has offered no evidence whatsoever. As to the fraud count in the counterclaim, and its reiteration in the 2015 complaint, the court finds for Ms. Micek-Holt. The court further rejects the fifth Papageorge special defense alleging that the sellers engaged in fraud in their dealings with her. C Abuse of Process The focus of this count is upon Mr. Micek's filing of the second summary process action in December of 2013. In the recent case of Rogan v. Rungee , 165 Conn. App. 209, 140 A.3d 979 (2016), the court explained that "[a]n action for abuse of process lies against any person using a legal process against another in an improper manner or to accomplish a purpose for which it was not designed.... Because the tort arises out of the accomplishment of a result that could not be achieved by the proper and successful use of process, the Restatement Second (1977) of Torts, § 682, emphasizes that the gravamen of the action for abuse of process is the use of a legal process . against another primarily to accomplish a purpose for which it is not designed ." (Internal quotation marks omitted.) Id., at 220, 140 A.3d 979. Ms. Papageorge claims there are three respects in which Mr. Micek committed this tort: (1) he filed an eviction knowing of an automatic stay under the Bankruptcy Code entered for her and her husband's benefit; (2) he filed two additional eviction proceedings after Judge Cole-Chu's decision in the 2011 case; and (3) he failed to attach the entire Lease/Contract to his pleadings. If one, for the sake of argument, accepts all three of these premises as proven and true, one cannot then conclude that his actions amount to the abuse of process. If there was a bankruptcy stay in effect, the remedy would be sought in a contempt proceeding in the Bankruptcy Court. If he filed two additional actions aimed at getting back possession of 361 Thompson Road, he availed himself of a statutory proceeding ostensibly designed for that very purpose. Finally, his omission of the cited documents could easily be cured by a request to revise the complaint, or by the defendant therein producing them on her own behalf. This imaginative exercise is unnecessary, however, because in spite of participating in a two day trial in which the court afforded her sufficient latitude to prove her case, she offered no evidence on the timing of her (apparently multiple) bankruptcy filings and whether any stay was in effect during the three month pendency of the second summary process case. Nor did she offer any evidence of a third summary process case (which might explain her claim that Mr. Micek filed two cases after April 15, 2013); the only evidence presented is that he only brought one such action. Finally, the omission of the attachments to the complaint he filed is a defect of form only. His complaint, which she presented as an exhibit, makes frequent reference to the earlier lease and the purchase and sale agreement, as well as to Judge Cole-Chu's earlier decision. Its omissions, if any, do not transmute it into a means by which he sought to deceive the court or achieve any improper end. On the counts claiming abuse of process, the court finds for Ms. Micek-Holt and the estate. D Unjust Enrichment Ms. Papageorge claims that the Miceks' retention of deposit moneys and their acceptance of the substantial repairs and improvements made to 361 Thompson Road have unjustly enriched them. "Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs' detriment." (Internal quotation marks omitted.) Vertex, Inc. v. Waterbury , 278 Conn. 557, 573, 898 A.2d 178 (2006). That enumeration of the elements of this tort follows immediately upon the court's discussion of the nature of the doctrine and the criteria by which a court might determine if it has been correctly raised. "A right of recovery under the doctrine of unjust enrichment is essentially equitable, its basis being that in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another.... With no other test than what, under a given set of circumstances, is just or unjust, equitable or inequitable, conscionable or unconscionable, it becomes necessary in any case where the benefit of the doctrine is claimed, to examine the circumstances and the conduct of the parties and apply this standard.... Unjust enrichment is, consistent with the principles of equity, a broad and flexible remedy." (Internal quotation marks omitted.) Id., at 573, 898 A.2d 178. It is a remedy reserved for those who have acted with equity themselves. At no time since April 15, 2013, have Ms. Micek-Holt or her father attempted to retain the moneys Ms. Papageorge tendered as deposit payments. Both in 2013 and in 2014, their efforts to comply with Judge Cole-Chu's expectations included giving her full credit for the total $21,000 he found that she had deposited. How the repairs and improvements inure to the sellers' benefit is unclear. If Ms. Papageorge had completed her performance under the contract, those improvements would be a part of her own home. On the other hand, if by default she put herself in a position of being dispossessed of the property, she can have no expectation that she is entitled to compensation for work she did on the property in the more than five years of her posttenancy occupation. It should be noted, moreover, that she offered no evidence as to what work was done, when and by whom, what it cost, etc. Thus, even if she had a valid claim against her defendants on this count, she has inadequately proven any damages flowing from their breach. As to the counts alleging unjust enrichment, the court finds for Ms. Micek-Holt and the estate. E Infliction of Emotional Distress To succeed in a claim for intentional infliction of emotional distress, "four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe." (Internal quotation marks omitted.) Watts v. Chittenden , 301 Conn. 575, 586, 22 A.3d 1214 (2011). To prevail on a claim of negligent infliction of emotional distress, "the plaintiff must prove: (1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiff's distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant's conduct was the cause of the plaintiff's distress." (Internal quotation marks omitted.) Grasso v. Connecticut Hospice, Inc. , 138 Conn. App. 759, 771, 54 A.3d 221 (2012). The specific acts cited by Ms. Papageorge in support of these claims are that Ms. Micek-Holt on more than one occasion took photographs of 361 Thompson Road, from a vantage point on a neighbor's property; on another occasion, she told a Papageorge visitor that her hostess was paying no rent; and that at another time Ms. Micek-Holt had "given her the finger." Clearly, none of these acts alone or in tandem amount to extreme or outrageous conduct as our case law defines that term. In Petyan v. Ellis , 200 Conn. 243, 510 A.2d 1337 (1986), such conduct was described as "conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind." (Emphasis omitted; internal quotation marks omitted.) Id., at 254 n.5, 510 A.2d 1337. In Appleton v. Board of Education , 254 Conn. 205, 757 A.2d 1059 (2000), the court determined that "[c]onduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress." (Internal quotation marks omitted.) Id., at 211, 757 A.2d 1059. On the intentional infliction count, the Papageorges' claim must fail. While the articulation of the elements of an action for negligent infliction of emotional distress does not employ the adjectives "extreme" or "outrageous," the requirement that any emotional distress complained of must be "severe enough that it might result in illness or bodily harm" establishes a standard against which the scope of this tort might be measured. One is hard-pressed to conceive that people as sophisticated in the rough-and-tumble of the oil business as were the Papageorges would suffer illness or bodily harm as a result of Ms. Micek-Holt's minor incivilities. If their daughter, Angelina, who is reported to now be twenty-one years of age, has her own injuries resulting from these encounters, it was incumbent upon her to appear at the trial to supply some evidence upon which the court could evaluate her claims. On the negligent infliction count, too, the Papageorges' claim must fail. VI CONTEMPT ISSUES In the course of the progress of these cases before the Superior Court, orders have been entered, which, in turn, have prompted contempt proceedings. As trial commenced, the parties remain divided as to the resolution of these issues. A Rental Payment Order At a short calendar on November 2, 2015, I heard a "motion for escrow" filed by Ms. Micek-Holt. The motion claimed that the parties had previously agreed upon monthly rental of $1600, that Ms. Papageorge was not making those payments, and that the underlying suit involved their lease and ancillary matters. The motion sought an order that she make payments each month in that amount to be paid into court and held in escrow pending final judgment. I granted that motion. B Tax Payment Order At a subsequent short calendar on June 27, 2016, Ms. Micek-Holt presented to the court a motion for an order that Ms. Papageorge make tax payments stemming from ownership of 361 Thompson Road. The court (Calmar, J. ), granted that motion and ordered her to refund to Ms. Micek-Holt taxes which she had paid to the town of Thompson to forestall a foreclosure of tax liens upon the property. C Motion for Contempt On the short calendar of July 18, the court (Riley, J. ) heard Ms. Micek-Holt's motion seeking a finding that Ms. Papageorge was in contempt for failure to abide by the prior orders described above. Judge Riley granted that motion, found that the total of unpaid taxes was then $16,201.50, and ordered that Ms. Papageorge pay that amount within thirty days, plus attorney fees of $1200. D Papageorge Response After counsel appeared herein for Ms. Papageorge on August 12, he moved to vacate the November 2 and June 27 orders, as well as Judge Riley's contempt finding of July 18, on due process grounds. Judge Calmar denied that motion on September 14. Ms. Papageorge has not represented that she has paid the $17,401.50 ordered by Judge Riley. E Disposition Ms. Micek-Holt requests that this court refer Ms. Papageorge to the state's attorney's office to be prosecuted for her continued contempt of court orders. First, this court will vacate its own order of November 2. Part of the argument made at that time was that the monthly payment was needed to allow the estate to cover taxes on the property. The motion Judge Calmar granted on June 27 dealt with taxes, and there is therefore redundancy between the two orders in an unknown amount. The value of the use and occupancy of the premises throughout this litigation is something I have taken into account in the final orders entered today, and thus the earlier, interlocutory order is unnecessary as well as confusing. The tax payment order, however, was authorized and equitable, and it remains ignored. The final orders entered today will direct that this be paid, an order that Ms. Papageorge may satisfy. If she fails to do so, Ms. Micek-Holt may pursue any remedies available to her. If that includes a civil sanction for contempt of the court's pendente lite orders, Ms. Papageorge will have to answer when she is summoned to court. The dispute, however, is civil, not criminal, and this court therefore declines to refer the matter to the state's attorney's office for prosecution as requested. VII CONCLUSION AND ORDERS "[T]he determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court." (Internal quotation marks omitted.) Independence One Mortgage Corp. v. Katsaros , 43 Conn. App. 71, 75-76, 681 A.2d 1005 (1996). In the exercise of that discretion, "[in] an equitable proceeding, the trial court may consider all relevant circumstances to ensure that complete justice is done." (Internal quotation marks omitted.) Id., at 75, 681 A.2d 1005. The court indicated in Home Owners' Loan Corp. v. Sears, Roebuck & Co. , 123 Conn. 232, 242, 193 A. 769 (1937), that an equitable result "depends to a large extent upon the circumstances of the particular case." The particular circumstances of this case are sufficiently involved as to make the court's task somewhat more difficult than usual. Each side accuses the other of unclean hands. Each is correct. Mr. Micek's abrupt 2011 decision to declare the sales agreement in default needs no further discussion. Ms. Papageorge's prolonged refusal to compensate the estate for the real property she occupies, or to satisfy Ms. Micek-Holt's reasonable demand that she be repaid for the taxes she paid, eclipses the wrong done to her in 2011. The court is mindful of the maxims "equity abhors a forfeiture," and "equity views as done that which ought to have been done." The first conduces toward an award leaving Ms. Papageorge in ownership of the real estate, as she had made deposit payments and done some work upon the property before becoming the initial victim in this long-running saga. In the orders entered below, functionally, the court is averting a forfeiture by granting the relief requested in the sixth count of the Micek-Holt complaint where she demands an order of specific performance of the original purchase and sale agreement. At the same time, Ms. Papageorge's indifference to the obligations of that bargain over more than three years cannot go unrecognized and cannot be allowed to persist. The second equitable maxim cited authorizes orders that require her to make good upon her multiple failures to hold up her end of that bargain dating back to June of 2013. Ms. Papageorge has shown this court no valid reason why the closing did not occur in that month, nor presented the court with any valid reason for discounting the payments she agreed to make and ought to have made since then. Without revising the terms upon which the parties agreed in 2010, the court will apply the provisions of that agreement with adjustments for the passage of time and the performance or lack thereof by the parties in the interim. In calibrating the extent of the performance Ms. Papageorge must make up at this time, the court has utilized June 24, 2013, as the date upon which the closing ordered by Judge Cole-Chu ought to have taken place. The note upon whose terms the parties agreed provided that interest of 4.85 percent would be added to a principal of $229,000, and amortized via monthly payments of $1208.41, augmented by three annual principal reduction payments of $10,000 each. If the closing had occurred in June of 2013, and Ms. Papageorge complied with the contract terms, she would by October 24, 2016, have made forty monthly payments of $1208.41, plus $30,000 in the annual payments, for a total of $78,336.40. She must make that payment now to preserve the opportunity to retain ownership of the property. The present payment of $78,336.40 would reduce the amount remaining to be paid in coming years, as it includes a substantial reduction of the principal amount of her debt to the estate. The note promising to pay the balance due will thus no longer be in the amount of $229,000, as it must be adjusted downward to account for the portion of that amount representing payment on the principal. Additionally, with ownership came the responsibility to pay the taxes upon the tract. Ms. Micek-Holt's second count claims damages for unjust enrichment. She has proven that she incurred expenses amounting to $17,401.50 for tax payments required to save 361 Thompson Road from foreclosure, including attorney fees. Those tax payments were the legal liability of Ms. Papageorge. She cannot claim the benefits of that status unless she acknowledges the responsibilities that flow from it. The court finds for Ms. Micek-Holt, individually, on that count, and orders that Ms. Papageorge reimburse her without further delay. This judgment disallows any further Papageorge demands for discounts relating to work she has done on the property. Those items were covered by Judge Cole-Chu's decision. Furthermore, she provided this court with no evidence upon which to determine the true value of her demands in that regard. Because this court is concerned that Ms. Papageorge lacks either the will or the ability to complete this purchase, the court will also provisionally grant Ms. Micek-Holt the relief she requests in her fourth, fifth, and seventh counts. These demand the extinction of any equitable claims Ms. Papageorge may have to 361 Thompson Road, an order quieting title to that parcel in favor of the estate, and the eviction of the Papageorges from the property. In the event that Ms. Papageorge fails to complete the closing as hereafter ordered, this judgment contains orders responsive to that eventuality. Lastly, the court considers that Ms. Papageorge does owe the estate use and occupancy payments if she fails to pay the amounts owed on the note as indicated above. The original lease allocated one thousand dollars per month to the value of the property, and six hundred to tax and insurance costs. This decision has treated the tax issue separately, as indicated, and thus adopts one thousand as the reasonable value for use of the premises since June 24, 2013. Note, this element of the judgment is only reached in the event that Ms. Papageorge fails to pay the accrued principal and interest payments described. Time is of the essence as to the performance of these orders. In light of the foregoing it is, therefore, ORDERED: 1. Judgment on all counts of the complaint in CV-15-5006173-S shall enter in favor of Andrea Micek-Holt in her individual and representative capacities, and against Mary Papageorge. 2. On the counterclaim in CV-14-6008881-S, judgment on all counts shall enter in favor of Andrea Micek-Holt, and against Mary Papageorge. 3. On the complaint in CV-14-6008881-S, judgment on the first count shall enter in favor of the plaintiff. 4. At a time and place of the parties' choosing up to October 24, but, absent agreement, then at the Thompson Town Hall at 2 p.m. on October 24, 2016, the parties will meet for the following purposes: (a) Andrea Micek-Holt will convey to Mary Papageorge all the right, title and interest held by the estate of Edward Micek (seller) in and to premises known as 361 Thompson Road in Thompson, more fully described in the Executor's Deed submitted to this court as plaintiff's exhibit 1, to which reference may be had. The deed shall be in the form prepared by Harold Cummings, Esq., and attached to plaintiff's exhibit 32. The date of the grand list referred to therein shall be October 1, 2015. (b) Seller shall be responsible for payment of its own attorney fees, and for the town and state conveyance taxes required by statute. (c) In consideration therefor, Mary Papageorge (buyer) shall: (i) Deliver to seller by bank or cashier's check the amount of $78,336.40; (ii) Execute and deliver to seller a promissory note in the principal amount of $229,000, less that portion of the sum set forth in the preceding subparagraph, which represents payments of principal on the note between June 24, 2013, and October 24, 2016, had the note been signed on the 2013 date. Prospectively, interest on the note shall be paid at the rate of 4.85 percent per annum. Monthly payments on the note shall commence on November 24, 2016, in the amount of $1208.41 each, until the debt memorialized thereby has been fully amortized; (iii) As security for that note, buyer shall execute and deliver to seller a first mortgage encumbering the 361 Thompson Road property, and shall provide a release for any encumbrances placed upon her interest in the property on or after August 1, 2010; (iv) Buyer shall be liable for the cost of recording the deed and the mortgage, and for her own attorney's fees, including title insurance, if required; (v) Buyer shall also provide the seller with proof of insurance upon the premises, naming the seller as an additional protected party, in an amount at least equal to the amount of the note, and such insurance shall be kept in effect until the note is paid in full. (d) There will be no adjustments or demands for adjustments relating to the condition of the premises now or at any earlier time, nor for repairs done to it by either party. (e) No tax adjustment shall be owed to buyer for any period following June 24, 2013. (f) Not later than the conclusion of that closing, buyer shall reimburse Andrea Micek-Holt personally for taxes she paid to the town, and attorney fees previously ordered in this action, in the amount of $17,401.50. (g) Pending that closing, plaintiff shall not go upon that property, except by invitation of defendant or in the event of true emergency. (h) Under no circumstances shall buyer, or George Papageorge, or any agent of theirs, including, but not limited to, other family members, cause any damage to the premises by intent or negligence, including omission of necessary maintenance of the property, prior to the closing, or, if they fail to close, at any time following the entry of this judgment. 5. By 5 p.m. on October 26, 2016, counsel for the parties shall file affidavits with the clerk of this court attesting that the closing ordered by paragraph 4 has occurred, and all of the terms set forth in that paragraph have been fulfilled. Upon the receipt of those affidavits, the clerk shall indicate on the file that the judgment in this matter has been satisfied, and the orders numbered 6 and 7, below, shall be vacated. 6. In the absence of the filing of such affidavits: (a) Mary Papageorge, George Papageorge, and Angelina Papageorge are ordered to vacate 361 Thompson Road not later than 5 p.m. on October 26, 2016, together with all their possessions, and along with any other persons whom they might have permitted to occupy said premises. In the event that they hold over after that date, they shall make use and occupancy payments to the estate at the rate of $150 per day. The clerk of this court may issue an execution of eviction order if requested by plaintiff at any time after October 26; (b) The interests of Mary Papageorge in the property located at 361 Thompson Road, Thompson, Connecticut, whether arising from lease, contract, or whatever source, are hereby extinguished; (c) The clerk shall issue a judgment file quieting title to the premises in favor of the estate of Edward Micek; (d) Judgment shall enter in favor of the estate against Mary Papageorge in the amount of $40,000, on the second count of the complaint. 7. Judgment enters in favor of Andrea Micek-Holt against Mary Papageorge in the amount of $17,401.50. 8. No costs are taxed to either party. Kalami Corporation and Angelina Papageorge, one of the Papageorges' children, also were named as defendants in the action filed by Micek-Holt. Neither of those parties is participating in this appeal. Mary Papageorge's complaint also named two attorneys, Jamie Davis and Daniel McGinn. Davis and McGinn filed separate motions to dismiss the counts directed to them, both of which the trial court granted. Mary Papageorge did not appeal from those decisions. Further, the complaint contained a seventh count sounding in "misconduct." She withdrew that claim prior to trial. Extensive litigation ensued regarding the termination of the appellate stay and various efforts to have the Papageorges ejected from the subject property. This court already considered whether the trial court improperly granted the plaintiff's motion to terminate the stay when it considered the Papageorges' motion for review under Practice Book § 61-14. We granted the Papageorges' request for review, but denied the relief they requested. We thereafter denied their motion for reconsideration. See Lawrence v. Cords , 165 Conn. App. 473, 479, 139 A.3d 778 ("[I]ssues regarding a stay of execution cannot be raised on direct appeal. The sole remedy of any party desiring . [review of] . an order concerning a stay of execution shall be by motion for review ." [Internal quotation marks omitted.] ), cert. denied, 322 Conn. 907, 140 A.3d 221 (2016). Moreover, although the Papageorges have challenged several executions of ejectment served by Micek-Holt, they did not brief any claimed errors with respect to those challenges, and we thus deem them abandoned. See Countrywide Home Loans Servicing, LP v. Creed , 145 Conn. App. 38, 44 n.7, 75 A.3d 38, cert. denied, 310 Conn. 936, 79 A.3d 889 (2013). Affirmed. Micek-Holt v. Papageorge , 180 Conn. App. 540, 183 A.3d 1213 (2018). Her complaint has a seventh count captioned, "Misconduct." At trial, her counsel withdrew this count. Testimony in this case indicates that Hurricane Irene had buffeted Connecticut on August 29, 2011, and that as of September 1 all of Thompson Road was without power and the site of numerous downed trees. Accordingly, a closing on the first would have likely been impossible. However, time was not of the essence of the agreement, and the marginal delay caused by this weather event was not the cause of the parties' dispute; the storm did, however, drop trees at 361 Thompson Road, and the cost of their removal did become a sticking point. These filings came to the attention of this court at a trial management conference held just prior to the trial. The court denied the motion in limine as the full import of the 2013 decision was unclear in light of subsequent events. Ms. Papageorge accompanied her motion for summary judgment with a request for leave to file, which this court denied; proceedings on that motion likely would have delayed a resolution of the parties' claims for several additional months, an unacceptable delay in a case of this nature, which has already passed its fifth anniversary. However, the court indicated that it was not deciding the merits of either motion. Note that on May 20 Attorney Longo had communicated with an attorney he believed was representing her; she appears, instead, to have continued to represent herself, at least in a cocounsel arrangement. This court is unaware of any local custom in any other region of the state which would direct a result different from that outlined herein. I.e., sale price of $250,000 minus mortgage of $229,000, rounded down. It must be noted that whatever equity inhered in the property, there was no evidence that any bank's post-2008 loan standards would permit a loan to the Papageorges given the credit problems they obviously were afflicted by. Additionally, in approximately March of 2012, Mr. Papageorge lost title through a foreclosure proceeding to real estate in Massachusetts which he or his family had owned for half a century. Thus, he was, prior to that date, already a homeowner. There are ninety-four paragraphs in the breach of contract count as Ms. Papageorge expressed the same in her counterclaim to Ms. Micek-Holt's 2014 action. By the time of her own 2015 complaint, her expression of that count had grown to one hundred and twenty-one paragraphs. The observations as to the substance of the fraud count are accurate as to both of these pleadings. The court has not calculated the exact principal balance that would therefore be due. It is not so simple as subtracting $78,336.40 from $229,000, as the payments are a combination of both principal and interest and only the amount of each payment attributable to principal reduces the note amount. The parties must prepare an amortization table to show the amount of the principal remaining due on October 24, 2016; that is the appropriate amount of the note that Ms. Papageorge must sign and deliver.

12494739

Alice K. GECI, Executrix (Estate of William F. Klee), et al. v. David BOOR Alice K. Geci, Executrix (Estate of William F. Klee), et al. v. David Boor et al.

Geci v. Geci

2017-12-12

AC 39446

94

106

181 A.3d 94

181

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

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

Fastcase

Alice K. GECI, Executrix (Estate of William F. Klee), et al. v. David BOOR

Alice K. GECI, Executrix (Estate of William F. Klee), et al. v. David BOOR Alice K. Geci, Executrix (Estate of William F. Klee), et al. v. David Boor et al. AC 39446 Appellate Court of Connecticut. Argued September 8, 2017 Officially Released December 12, 2017 Malcolm F. Barlow, for the appellant (named defendant). Vincent John Purnhagen, South Windsor, for the appellee (plaintiff). Keller, Prescott and Kahn, Js. The listing of judges reflects their seniority status on this court as of the date of oral argument.

6322

38674

KELLER, J. In this consolidated probate appeal, the defendant David Boor appeals from the judgments rendered by the trial court in favor of the plaintiff, Alice K. Geci. The defendant claims that (1) the court erred by finding that, upon the death of the decedent, William F. Klee, the plaintiff became the sole owner of joint bank accounts held by the decedent and the plaintiff, and, thus, they were not part of his estate, and (2) the court abused its discretion by reinstating the plaintiff as the executrix of the decedent's estate. We disagree with the defendant and, therefore, affirm the judgments of the trial court. We begin by setting forth the relevant facts and procedural history. On July 12, 2015, the Probate Court for the district of Ellington issued a decision in which it found that the decedent and the plaintiff held funds in joint accounts for convenience purposes only, that the decedent did not intend for the plaintiff to become the sole owner of the funds in the joint accounts upon his death, that the plaintiff undervalued assets in the inventory of the estate, and that money given to the plaintiff by the decedent to purchase a new car must be reported as estate inventory. On the basis of those findings, the Probate Court ordered that a constructive trust for the benefit of the defendant be placed on the undervalued assets and the funds in the joint accounts or, in the alternative, that a constructive trust be imposed on the remainder of the proceeds in the decedent's estate. The Probate Court also ordered that the money the plaintiff used to purchase the car must be reported as an advanced distribution in the final accounting of the decedent's estate. Later, on August 17, 2015, the Probate Court removed the plaintiff as executrix of the decedent's estate. Pursuant to General Statutes § 45a-186 (a), the plaintiff appealed to the Superior Court from the Probate Court's orders involving the joint bank accounts and its decision to remove her as executrix of the decedent's estate. The Superior Court consolidated the plaintiff's appeals and conducted a de novo hearing focused on two issues-whether the jointly held bank accounts in question were part of the decedent's estate and whether the plaintiff should be reinstated as the executrix. The court, after conducting a three day bench trial, found that the plaintiff became the sole owner of the joint bank accounts upon the decedent's death. The court also reinstated the plaintiff as the executrix of the decedent's estate. The trial court set forth the following facts in its memorandum of decision: "[The decedent] . died on September 19, 2013 [and was] predeceased [by his spouse, Gloria R. Klee. The decedent and Gloria Klee] had three children . the plaintiff, Marjorie K. Heintz and Frederick G. Klee. All three of these children . survived the decedent.... [The decedent] was, by all reports, known to be a hard-working, self-employed farmer throughout his life, who, in partnership with . Gloria Klee . was able to maintain a farming business in the town of Ellington, Connecticut, for many years. Both the decedent and [Gloria Klee] did physical work on the farm. However, while it was the decedent who was primarily involved in the actual physical operation of the farming business, it was [Gloria] Klee who did all the household chores and bookkeeping . "Notwithstanding the fact that the decedent did not routinely write out checks to pay family household or business related bills, the decedent was nonetheless a competent and savvy businessman/farmer.... [According to the] plaintiff's expert witness, Attorney Atherton B. Ryan, the decedent was more than capable of managing and conducting his own affairs." (Internal quotation marks omitted.) Ryan's professional relationship with the decedent began in 2006 when the decedent hired Ryan to collect a debt from the decedent's daughter, Marjorie Heintz. During the litigation regarding the contested debt, Ryan advised the decedent to amend his will. The decedent directed Ryan to draft a new will in order to "remove Marjorie from the will and to give Marjorie's one-third share to Marjorie's children, the defendant, David Boor, (a 2/9ths share) and [the defendant's] sister, Melissa Mascalla, (a 1/9th share)." The decedent signed this will on June 13, 2006. Gloria Klee was diagnosed with cancer in 2005. Shortly thereafter, the plaintiff "assumed not only the role of caregiver for her mother during the period of her mother's final illness but also her mother's duties at the farm. This included not only doing the bookkeeping and bill-paying for the family household, but more importantly, assuming the responsibility for [the decedent's] well-being after Gloria [Klee] had died. With this in mind, the decedent and [Gloria Klee] made a conscious decision during the period of [her] last illness to apprise the plaintiff of their financial affairs.... [Gloria Klee] showed the plaintiff all of the financial and bookkeeping documents ." (Internal quotation marks omitted.) The decedent, Gloria Klee, and the plaintiff opened joint checking and savings accounts on April 5, 2006, in person at Bank of America. On April 11, 2006, the decedent and Gloria Klee also made the plaintiff a joint owner with a right of survivorship on three certificate of deposit accounts at Rockville Bank. Gloria Klee died shortly after adding the plaintiff onto those accounts. The decedent closed all of the accounts at Bank of America and Rockville Bank on March 12, 2007. The decedent once again created a new will on January 11, 2012, to replace the June 13, 2006 will. The new "will provided a few specific bequests with the residuary of the decedent's estate to be divided equally between the plaintiff and the defendant . No provision was made for the decedent's daughter, Marjorie, or the decedent's son, Frederick [Klee] . [This will was] admitted to probate after the decedent's death . and the plaintiff was appointed executrix of the estate." Although not explicitly set forth in the court's memorandum of decision, the following additional facts are not disputed by the parties and are consistent with the court's other findings. The plaintiff and decedent opened joint accounts with a right of survivorship at Rockville Bank, which is now known as United Bank. At the time of the decedent's death, the decedent and the plaintiff were signatories on a joint checking account, a joint savings account, and four joint certificate of deposit accounts at United Bank. The plaintiff did not probate the funds, totaling approximately $400,000, in the bank accounts. Additional facts will be set forth as needed. I The defendant claims that the court erred by finding that the plaintiff became the sole owner of joint bank accounts held by the decedent and the plaintiff upon the decedent's death. We disagree. We begin by setting forth the relevant law pertaining to the ownership of joint bank accounts after the death of one account holder, as well as the standard that governs our review of the court's findings. Joint survivorship bank accounts are governed by General Statutes § 36a-290. Case law interprets § 36a-290 (b) as giving rise to a rebuttable presumption that "the creation of a joint account is evidence of the intent of the person creating the account to have the proceeds go, upon his or her death, to the other joint account holder." Bunting v. Bunting , 60 Conn. App. 665, 679, 760 A.2d 989 (2000). A person challenging the survivor's right to ownership of the balance in the account must overcome the presumption with clear and convincing evidence. Garrigus v. Viarengo , 112 Conn. App. 655, 662, 963 A.2d 1065 (2009). The phrase "clear and convincing" denotes a degree of belief that lies between a preponderance of the evidence and proof beyond a reasonable doubt. Dacey v. Connecticut Bar Assn. , 170 Conn. 520, 536-37, 368 A.2d 125 (1976). "[C]lear and convincing proof is strong, positive, free from doubt, and full, clear and decisive." (Internal quotation marks omitted.) Id., at 537, 368 A.2d 125. When, however, the challenger presents clear and convincing evidence that the surviving account holder committed fraud, exerted undue influence on the deceased account holder; Garrigus v. Viarengo , supra, at 662, 963 A.2d 1065 ; or was in " 'a confidential relationship' " with the deceased account holder, the burden of proof with regard to ownership shifts to the surviving account holder, who then has the burden of proving fair dealing or the absence of undue influence by clear and convincing evidence. Bunting v. Bunting , supra, at 680, 760 A.2d 989. The issue of ownership upon the death of a joint account holder is a factual one. Driscoll v. Norwich Savings Society , 139 Conn. 346, 349, 93 A.2d 925 (1952). Appellate review of findings of fact is limited to the clearly erroneous standard. Bunting v. Bunting , supra, 60 Conn. App. at 679, 760 A.2d 989. A finding of fact is deemed clearly erroneous when there is no evidence in the record to support it or when there is evidence, "the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." (Internal quotation marks omitted.) Id. This court "cannot retry the facts or pass upon the credibility of the witnesses." (Internal quotation marks omitted.) Id. The court stated that the defendant in this case bore the burden of persuasion, by clear and convincing evidence, to rebut "the statutory presumption vesting ownership in the surviving owner in a joint account upon the demise of the other joint account holder ." The court found that the defendant did not meet that burden. Because the court did not shift the burden to the plaintiff, it can be inferred that the court did not find that the plaintiff committed fraud, exerted undue influence on the decedent, or that she and the decedent were in a confidential relationship. In challenging the court's finding that the plaintiff became the sole owner of the accounts upon the decedent's death, the defendant makes four arguments. The defendant first argues that the court should have found that the plaintiff and the decedent were in a confidential relationship, shifting the burden of proof with regard to ownership of the accounts to the plaintiff. The defendant's second argument is that the present case is factually similar to Garrigus v. Viarengo , supra, 112 Conn. App. at 655, 963 A.2d 1065, and that it was improper for the court to rely on State v. Lavigne , 307 Conn. 592, 57 A.3d 332 (2012). The defendant's last two arguments are that the court erred by not finding that the plaintiff concealed the joint ownership of the accounts and that the court improperly weighed evidence concerning the decedent's intent. A The defendant argues that the court should have found that the plaintiff was in a confidential relationship with the decedent, shifting the burden of proof with regard to ownership of the accounts to the plaintiff. The defendant's argument is predicated on portraying the decedent as a simple farmer, with little understanding of how to manage his personal finances, and inherently susceptible to the plaintiff's influence. The record, however, reveals a basis to conclude that this was not the case. First, the plaintiff's relationship with the decedent did not reflect the paradigms of a confidential relationship. Second, the record demonstrates that the decedent may not have been as susceptible as the defendant contends; the decedent was capable of managing his financial affairs and there is evidence that the decedent understood the survivorship rights on joint accounts. Determining whether a confidential relationship exists is a factual inquiry. Albuquerque v. Albuquerque , 42 Conn. App. 284, 287, 679 A.2d 962 (1996). Appellate review is limited to the clearly erroneous standard. Id. The record contains evidence that the plaintiff's relationship with the decedent did not reflect the paradigms of a confidential relationship. "A fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other." Dunham v. Dunham , 204 Conn. 303, 322, 528 A.2d 1123 (1987), overruled in part on other grounds by Santopietro v. New Haven , 239 Conn. 207, 213 n.8, 682 A.2d 106 (1996). The superior position of the fiduciary or dominant party affords him a great opportunity for abuse of the confidence reposed in him. Id."The relationship between a parent and a child does not per se give rise to the establishment of a fiduciary relationship." (Internal quotation mark omitted.) Bunting v. Bunting , supra, 60 Conn. App. at 680, 760 A.2d 989. Here, there was evidence that the decedent did not wholly trust the plaintiff to manage his finances. The defendant referred to this in his testimony by stating that the decedent "would accuse . [the plaintiff] of stealing his money." There was evidence that the decedent monitored the plaintiff's management of his financial affairs. The plaintiff recalled that the decedent was aware of how much money the accounts contained and scrutinized how the money was being spent, frequently questioning payments to parties he did not recognize. Further, there was evidence that the decedent made the ultimate determination in the management of his financial affairs. According to the plaintiff, when she purchased a new car, it was the decedent who made the decision about which account the money would come from. The record contains a basis to support the court's finding that the decedent was capable of managing his financial affairs. The evidence reflects that the decedent-with help from Gloria Klee, family members, and friends-successfully operated a family farm for many years. In managing the farm, the decedent purportedly made purchases, sold farm products and services, bartered, and negotiated. The plaintiff testified that the decedent annually visited Rockville Bank to renegotiate the interest rates on his composite deposit accounts. Additionally, there was evidence that the decedent demonstrated an understanding of complex legal and financial documents. The decedent supposedly instructed his attorney to change his will despite the plaintiff's protests. The defendant recalled times when the decedent would execute contracts for mortgage liens and automobile sales. The evidence reasonably demonstrated that the decedent understood survivorship rights on a joint account, which supports the notion that the decedent was not as susceptible to the plaintiff's influence as the defendant represents. At trial, a representative from United Bank, Tracy Roy, explained that it is bank policy to inform anyone opening a joint account about the right of survivorship. Additionally, a bank representative would give customers an informative booklet on joint account ownership. The booklet contains the following provision, "Joint Account-With Survivorship (And not as Tenants in Common)-is an account in the name of two or more persons (where the other person is not a fiduciary or beneficiary). Each of you intends that when you die the balance in the account (subject to any previous pledge to which we have agreed) will belong to the survivor(s)." The decedent should have received this information when he opened the accounts with the plaintiff. Additionally, the decedent, prior to opening joint accounts with the plaintiff, held joint accounts with Gloria Klee. The decedent gained firsthand experience dealing with survivorship rights when Gloria Klee died. B The defendant's second argument is that the present case is factually similar to Garrigus v. Viarengo , supra, 112 Conn. App. at 655, 963 A.2d 1065, and that it was improper for the court to rely on State v. Lavigne , supra, 307 Conn. at 592, 57 A.3d 332. In Garrigus , the executrix of the decedent's estate brought an action against the decedent's niece to recover funds in accounts held by the decedent and her niece. Garrigus v. Viarengo , supra, at 660, 963 A.2d 1065. The court found that by transferring the decedent's assets into the joint accounts, the niece committed fraud against the decedent's estate. Id., at 671, 963 A.2d 1065. The trial court in Garrigus found that shortly after the decedent's husband died, "the [niece] transported [the decedent] to the bank, and the [niece's] name was added as a joint owner on savings bonds ." Id., at 665-66, 963 A.2d 1065. A few months later, "the [niece] was added as a joint owner on several of [the decedent's] savings and checking accounts, certificates of deposit and savings bonds . When a few relatives became aware that the [niece] was a joint owner on some of [the decedent's] bank accounts, they expressed their concern to [the decedent] that those accounts would belong to the [niece] when [the decedent] died. [The decedent] was adamant that the [niece's] name had been added for convenience only because the [niece] helped [the decedent] with her financial affairs and was the coexecutor of her will. [The decedent] indicated that she had told [her niece] that her estate was to be divided equally among the ten beneficiaries." Id., at 666, 963 A.2d 1065. The court inferred that when faced with the decedent's instructions to split the estate evenly, the niece "remained silent" and that the decedent "undoubtedly assumed [her niece's] assent ." Id., at 669, 963 A.2d 1065. In the present case, there was no finding that (1) the decedent created joint accounts with the plaintiff only for convenience purposes, (2) any of the other family members ever questioned him about his intent, or (3) he indicated that the money in the accounts was to be distributed equally to all his stated beneficiaries. Thus, we do not agree with the defendant that the present case is factually similar to Garrigus . The court also did not err by citing to State v. Lavigne , supra, 307 Conn. at 592, 57 A.3d 332. The court cited to Lavigne for the proposition that determining ownership of funds in a joint account is a factual issue in order to establish that it was the court's responsibility in the present case to make that determination as the finder of fact. Although Lavigne is a criminal case, § 36a-290 is discussed at length in our Supreme Court's decision. First, we observe that a court is free to look to any case that it believes is instructive in deciding the matter before it. Second, there is no basis on which to conclude that the court's reliance on Lavigne was misplaced because in Lavigne , our Supreme Court reviewed the "long-standing jurisprudence concerning § 36a-290 or its predecessor provision and other cases in which the ownership of joint bank accounts was at issue ." Id., at 601, 57 A.3d 332. The defendant's brief even contradicts itself in one instance by stating that the court erroneously relied on Lavigne and in another instance by stating that "the Lavigne case gives sufficiently relevant law to be the key case in this matter." (Internal quotation marks omitted.) C The defendant next argues that the court improperly failed to find that the plaintiff fraudulently concealed the beneficial effect of her survivorship rights in the joint accounts from her daughter, the decedent, and the decedent's attorney. It is not this court's role to examine the record to determine whether the trier of fact could have reached a different conclusion. Wyszomierski v. Siracusa , 290 Conn. 225, 238, 963 A.2d 943 (2009). Instead, this court reviews the trial record to determine whether the trial court's decisions are legally correct and factually supported. Id. The defendant is requesting that this court replace the trial court's findings of fact with a different narrative where the defendant is entitled to half the funds in the joint accounts. The record does not reveal the requisite compelling reasons to do so. The defendant contends that the court improperly failed to find that the plaintiff concealed the survivorship nature of the joint bank accounts from the plaintiff's daughter, Attorney Ryan, and the decedent. The defendant does not establish why it was clearly erroneous for the court to fail to find that the plaintiff concealed the accounts. The plaintiff's alleged concealment of the survivorship rights of the accounts from her daughter is not material to the outcome of this case. There is contradictory testimony regarding whether the plaintiff concealed the survivorship rights from the decedent and Ryan; therefore, the trial court did not err by not finding that she did so. The court did not act improperly by failing to find that the plaintiff concealed the survivorship nature of the accounts from her daughter. Courts do not need to include immaterial facts in their findings. Yale University v. New Haven , 169 Conn. 454, 463, 363 A.2d 1108 (1975). The defendant was "required to prove by clear and convincing evidence that the bank accounts . were not valid inter vivos gifts . or that they were assets acquired by the defendant under circumstances which required equity to divest [the plaintiff of her] beneficial interest and to convert [her] into a trustee in order to prevent [her] unjust enrichment." (Citations omitted.) Cooper v. Cavallaro , 2 Conn. App. 622, 626, 481 A.2d 101 (1984). The § 36a-290 (b) presumption focuses on the intent of the joint account holders. State v. Lavigne , supra, 307 Conn. at 603, 57 A.3d 332. Whether the plaintiff informed her daughter about the survivorship nature of the accounts neither provides insight as to the decedent's intent, nor reveals anything about the relationship between the decedent and the plaintiff. The defendant does not proffer a reason why a finding that the plaintiff concealed her right of survivorship from her daughter would be material to the case. Further, the defendant needed to explain that failing to make such a finding would be impactful in light of the fact that the defendant needed to establish by clear and convincing evidence that equity required divesting the plaintiff of the accounts. Whether or not the court found the daughter's testimony credible, the court did not have to address this factual issue in its analysis. With respect to Ryan and the decedent, although a finding that the plaintiff purposely concealed the survivorship nature of the accounts from them may have been material to the court's analysis, the defendant must establish on appeal that the court's failure to find that the plaintiff deceived either of them was clearly erroneous. The record contains contradictory testimony regarding whether the plaintiff had an opportunity to conceal the survivorship rights from Ryan and whether the decedent knew about the survivorship rights. "Where there is conflicting testimony, we do not retry the facts or pass upon the credibility of the witnesses.... Weighing the evidence and judging the credibility of the witnesses is solely within the province of the trial court and this court will not usurp that role." (Citation omitted.) Hallmark of Farmington v. Roy , 1 Conn. App. 278, 281, 471 A.2d 651 (1984). Also, the court was not required to credit any particular individual's account of the events. Wilson v. Hryniewicz , 51 Conn. App. 627, 633, 724 A.2d 531, cert. denied, 248 Conn. 904, 731 A.2d 310 (1999). The defendant contends that the court erred by not finding that the plaintiff concealed the survivorship nature of the accounts from Ryan. The defendant alleges that the plaintiff concealed the survivorship nature when she brought the decedent to Ryan's office to amend his will in 2012. Ryan testified that the plaintiff sat in on the conference when the decedent discussed how he wanted to amend his will, but that the plaintiff did not actively participate in the conversation. Ryan stated that, aside from exchanging brief pleasantries, the plaintiff said little at the meeting and that although there was a terse discussion of the decedent's assets, the decedent brought the conversation to an abrupt end. The plaintiff testified that she was asked to leave the room after briefly greeting Ryan. The court was left to evaluate contradictory testimony that the plaintiff did not attend the meeting against evidence that she was not an active participant. The court was free to assign credibility to either account. Therefore, it was not clearly erroneous for the court to fail to find that the plaintiff concealed the right of survivorship from Ryan. The defendant relies on his own testimony to argue that the plaintiff concealed the right of survivorship from the decedent. The defendant testified that the decedent was confused as to why the plaintiff's name was on the accounts and that despite arguments between the plaintiff and the decedent regarding finances, the decedent never took the plaintiff's name off the accounts. The plaintiff testified that her name was on the accounts as a joint owner because her parents wanted her to have the money in the accounts. Again, the court was left to evaluate contradictory testimony. The plaintiff's testimony provided evidence that she did not conceal the survivorship rights from the decedent, and the court was free to credit that testimony. Therefore, it was not clearly erroneous for the court to fail to find that she concealed the survivorship rights on the accounts. D The defendant's final argument is that the court failed to give proper weight to evidence concerning the decedent's intent. As previously explained, the existence of a joint account creates a presumption that the decedent intended the joint account to become the property of the surviving account holder(s). This presumption can be overcome only with clear and convincing evidence. Garrigus v. Viarengo , supra, 112 Conn. App. at 662, 963 A.2d 1065. Nothing in the court's decision suggests that the court failed to consider whether the presumption was overcome or any of the relevant evidence on the issue. The court noted that "[i]t is true that the state of the evidence in this case is a bit contradictory. On the one hand, we have the incontrovertible evidence that the decedent created these joint accounts with himself and [the plaintiff]. Examined in a vacuum, this seems to clearly show that he intended to have ownership of the totality of the $400,000 vest in [the plaintiff] upon his death (after all, that is the general meaning of a joint account). On the other hand, there is the clearly contradictory stated intent in his last will and testament-that the residuary of [the decedent's] estate is to be equally divided between [the plaintiff and the defendant]." Therefore, the court weighed the evidence concerning the decedent's intent and decided that it did not clearly and convincingly overcome the presumption set forth in § 36a-290 (b). II The defendant also claims that the court abused its discretion by reinstating the plaintiff as the executrix of the decedent's estate. The defendant argues that, by undervaluing certain assets in the inventory of the decedent's estate, the plaintiff failed to perform adequately her duties as executrix. We disagree. The property at issue was a tractor and two vehicles-an automobile and a dump truck. The defendant supports this claim by arguing that his own testimony contradicts the plaintiff's valuations and that the plaintiff, by her own admission, initially confused the value of the two vehicles. The court observed that "[d]espite there being some allegations that the plaintiff did not perform her job properly, this court cannot find that the decisions she made as executrix, the valuations she placed upon the property in the inventories, were unsupported by evidence." Removal of an executrix is left to the sound discretion of the Probate Court. Ramsdell v. Union Trust Co. , 202 Conn. 57, 65, 519 A.2d 1185 (1987). "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." Id. That leaves this court to determine whether the decision of the trial court amounts to an abuse of discretion. "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." (Internal quotation marks omitted.) Selene Finance, L.P. v. Tornatore , 137 Conn. App. 130, 134, 46 A.3d 1070, cert. denied, 307 Conn. 908, 53 A.3d 223 (2012). The record reveals that the plaintiff and the defendant presented the court with conflicting values of the assets. The plaintiff valued the tractor at $12,000, the automobile at $4000, and the dump truck at $8000. The defendant, "a person who deals in automotive transactions," appraised the automobile at $12,088. The defendant estimated, on the basis of the National Auto Dealers Association blue book, that the dump truck was worth $15,413. Scott Stanton, the tractor dealer who sold and repaired the decedent's tractor, estimated that the tractor was worth $25,000 at the time of the decedent's death. The defendant is essentially requesting that this court conclude that it was an abuse of discretion for the trial court to reinstate the plaintiff because of the higher estimated values of the assets that he, an interested party, and Stanton presented. Even though there was a difference between the defendant's appraisals and the plaintiff's valuations, the court acted within its discretion by reinstating the plaintiff as executrix. The values utilized by the plaintiff equal, or are close in value to, the town of Ellington's tax assessments on the assets, which were admitted as evidence. Therefore, after reviewing the record, we conclude that the court's decision to reinstate the plaintiff as the executrix was reasonable, supported by the record, and not an abuse of its discretion. The judgments are affirmed. In this opinion the other judges concurred. Geci brought this appeal from probate both individually and in her representative capacity as executrix of the estate of the decedent, William F. Klee. She refers to herself as the plaintiff, as do we. The defendant, David Boor, is the decedent's grandson and a beneficiary of his will. John Henneberger, the administrator of the decedent's estate, was also named as a defendant but was defaulted for failure to plead and is not involved in this appeal. Our references in this opinion to the defendant are to Boor. Pursuant to the terms of the June 13, 2006 will, Frederick Klee's one-third share was to be devised to the plaintiff in trust for Frederick Klee. It is not disputed that both accounts had a right of survivorship. Pursuant to the terms of the June 13, 2006 will, Frederick Klee and Mascalla were to receive a one-third share in trust and a one-ninth share, respectively. The January 11, 2012 will removed Frederick Klee and Mascalla as beneficiaries of the decedent's residual estate. This left the plaintiff and defendant as the sole intended beneficiaries in the 2012 will, each receiving a one-half share of the residual estate. General Statutes § 36a-290 provides in relevant part: "(a) When a deposit account has been established at any bank, or a share account has been established at any Connecticut credit union or federal credit union, in the names of two or more natural persons and under such terms as to be paid to any one of them, or to the survivor or survivors of them, such account is deemed a joint account, and any part or all of the balance of such account, including any and all subsequent deposits or additions made thereto, may be paid to any of such persons during the lifetime of all of them or to the survivor or any of the survivors of such persons after the death of one or more of them. Any such payment constitutes a valid and sufficient release and discharge of such bank, Connecticut credit union or federal credit union, or its successor, as to all payments so made. "(b) The establishment of a deposit account or share account which is a joint account under subsection (a) of this section is, in the absence of fraud or undue influence, or other clear and convincing evidence to the contrary, prima facie evidence of the intention of all of the named owners thereof to vest title to such account, including all subsequent deposits and additions made thereto, in such survivor or survivors, in any action or proceeding between any two or more of the depositors, respecting the ownership of such account or its proceeds...." Although it is not explicitly stated in the defendant's brief, the defendant also seems to be arguing that the burden of establishing ownership should have been on the plaintiff because she fraudulently concealed her right of survivorship or, more generally, that she otherwise exerted undue influence on the decedent. The plaintiff testified: "When the bank statements came in every month, [the decedent] would open up the statements, and he'd look, and his first question was how much money's in there ." The plaintiff would reply, "I don't know, dad. You got to add it up . I'd say, dad, you've got to get a piece of paper, start adding them up." The plaintiff testified: "Sometimes [the decedent] didn't recognize the names of places that I mailed a check to, and he would [say], what's this check for, what's this check for, and I would tell him." The plaintiff testified: "I gave him the options of what . he had, and he said, I want to take it out of John Hancock. He did not want to touch the [joint accounts]. This was in November. He just renegotiated them in July. He was afraid he would lose his rate or interest [on the composite deposit accounts]." James Prichard, owner of the hardware store that the decedent frequented, testified: "I would buy egg cartons, shavings [from the decedent]. We would trade eggs back and forth ." Prichard also recalled negotiating with the decedent: "I told him the price [for a wood stove]. He'd say it was too high, and then I'd sell it to him for close to what it cost me." The plaintiff testified: "Every July, because that's when the . [composite deposit accounts] came due, we would go to the bank together, and he would talk to the lady about the interest rates, and he would renegotiate them." The plaintiff testified: "I didn't agree with it, but I wasn't really sure about it, and once my dad heard that . [if Freddy goes into a convalescent home, the government can get your money], he decided to go up and take Freddy out of [the] will. I was quite against it." The defendant testified that the decedent entered into contracts to purchase automobiles and signed his will. The defendant also secured mortgage financing from the decedent, and the decedent was a signatory on the mortgage release agreement, which was signed before a notary. Roy, a manager of two branches for United Bank, testified in response to questioning regarding the process of opening an account: "I would identify each customer . go over, if it's a joint account, what a joint account means; all of our joint accounts are with right to survivorship and not tenants in common, which means either of the parties, either account holder has full access to the funds. It is 100 percent owner A and 100 percent owner B's money. They do not need each other's permission to conduct any transaction on the account. Upon the death of one joint account holder, the surviving holder becomes the sole owner of the money." Ryan testified that "[a]pparently," the decedent was aware of the survivorship nature of joint bank accounts in March, 2007. Ryan testified: "My recollection is that [the plaintiff] had brought [the decedent] to the office. She did sit [in] on the conference [to discuss amending the decedent's will]. I don't remember her contributing to the conference or the discussion at all other than to say hi, the normal greeting kind of discussion. Specifically, I do not believe she contributed or commented upon [the decedent's] expressed desire." The plaintiff testified: "[The decedent] said he wanted to change the will, and . Ryan sat down with him, and [Ryan] asked me to walk out of the room so he could talk to [the decedent], and I sat in the lobby." The defendant also refers to the lack of anyone from Rockville Bank testifying about the decedent opening the accounts with the plaintiff in support of a finding that the plaintiff concealed the right of survivorship. This is a speculative proposition and ignores the possibility that the bank employees cannot accurately recall every patron who opens a new account. In arguing that the plaintiff concealed the right of survivorship on the accounts from the decedent, the defendant relies on his own testimony, which, rather than supporting his claim that the plaintiff concealed the survivorship rights from the decedent, reveals the opposite, mainly that the decedent was aware that the plaintiff's name was on the accounts. The defendant testified that the decedent was aware the plaintiff was listed on the account and contemplated removing her, but never did so. The defendant testified that "[a]ll [the plaintiff] would say [to the decedent] is, go to the bank and take my name off." "One time after . [the plaintiff and the decedent] had an argument about [the accounts], he asked me to take him to the bank to find out why her name was on it, whose money it was, and I flat out refused." During the plaintiff's direct examination, the following colloquy occurred: "[The Plaintiff's Counsel]: And whose money was it [in the accounts] . upon [the decedent's] passing? "[The Plaintiff]: Mine. "[The Plaintiff's Counsel]: And why you do you say that .? "[The Plaintiff]: Because that's what my mom and dad wanted-was for me to have the money [in the accounts] upon their death."

12493272

IN RE SANDY J. M.-M.

In re Sandy J. M.-M.

2018-02-09

AC 40602

1033

1035

180 A.3d 1033

180

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

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

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IN RE SANDY J. M.-M.

IN RE SANDY J. M.-M. AC 40602 Appellate Court of Connecticut. Considered January 18, 2018 Officially released February 9, 2018 Meghann E. LaFountain in support of the motion. Alvord, Sheldon and Prescott, Js. In accordance with the spirit and intent of General Statutes § 46b-142(b) and Practice Book § 79a-12, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court. February 9, 2018, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

1027

6099

PER CURIAM. The petitioner, Sandy J. M.-M., asks this court, by way of a motion filed on January 9, 2018, to reverse summarily the trial court's dismissal of her appeal from a decision of the Probate Court denying her petition seeking special immigrant juvenile status findings. See 8 U.S.C. § 1101(a)(27)(J) (2012) ; General Statutes § 45a-608n(b). We conclude that the resolution of this appeal is controlled by our Supreme Court's recent decision in In re Henrry P. B.-P. , 327 Conn. 312, 173 A.3d 928 (2017), and that summary reversal is appropriate in the circumstances of this case. Accordingly, we grant the petitioner's motion and reverse the judgment of the trial court. According to the relevant pleadings, the petitioner was born in Guatemala at the beginning of March, 1999, and she entered the United States when she was still a minor. Proceedings to remove her from the United States have commenced. On February 14, 2017, when she was seventeen years old, the petitioner initiated, pursuant to § 45a-608n(b), this proceeding requesting special immigrant juvenile status findings. Pursuant to General Statutes § 45a-610, the petitioner also filed with the Probate Court a petition to remove her father as her guardian. On March 30, 2017, the Probate Court, Yamin, J. , dismissed and denied, respectively, the petitions because the petitioner had reached her eighteenth birthday and the court presumably concluded that it lacked the authority to make the requested findings because she was no longer a minor. On May 1, 2017, the petitioner appealed to the Superior Court from the Probate Court's dismissal and denial of the petitions. In that appeal, the petitioner asserted in part that the Probate Court had improperly dismissed and denied the petitions because even though she had reached her eighteenth birthday, the Probate Court retained the statutory authority to render the requested findings. On May 25, 2017, the Superior Court, Ginocchio, J. , dismissed the appeal from Probate Court, citing to a Superior Court decision that held that it lacked the authority to adjudicate a neglect petition if the minor child turned eighteen years old during the pendency of the petition. See In re Jessica M. , 303 Conn. 584, 587-88, 35 A.3d 1072 (2012). On June 29, 2017, the petitioner filed this appeal challenging the propriety of the trial court's dismissal of her probate appeal. On July 27, 2017, this court granted the petitioner's motion to stay the deadline for her to file an appellant's brief until thirty days after the final disposition by our Supreme Court in In re Henrry P. B.-P. The Supreme Court issued its opinion in In re Henrry P. B.-P. , supra, 327 Conn. at 316, 173 A.3d 928, on December 14, 2017, holding that the Probate Court does not lose its authority to make special immigrant juvenile status findings pursuant to § 45a-608n(b) when the child who is the subject of the petition reaches the age of eighteen during the pendency of the petition. We agree with the petitioner that In re Henrry P. B.-P. controls the resolution of this appeal. Although our rules of practice do not contain an express provision authorizing a summary disposition of an appeal on the merits, this court has the authority to suspend the rules "[i]n the interest of expediting decision, or for other good cause shown ." Practice Book § 60-3. If the disposition of an appeal is plainly and undeniably mandated by a decision of our Supreme Court, as in this case, summary disposition is warranted and further adjudication of the appeal would waste precious judicial resources. Summary disposition is particularly warranted if, as in this case, such relief is unopposed and our failure to act expeditiously might prejudice a party by preventing the timely assertion of her rights. The motion is granted, the judgment of the Superior Court is reversed, and the case is remanded for further proceedings according to law. General Statutes § 45a-608n(b) provides: "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) ]. 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 sets 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."

12493273

Anna M. BIBOK-KIRALY v. Tibor KIRALY

Bibok-Kiraly v. Kiraly

2018-03-19

No. 38933

1036

1036

180 A.3d 1036

180

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

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

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Anna M. BIBOK-KIRALY v. Tibor KIRALY

Anna M. BIBOK-KIRALY v. Tibor KIRALY No. 38933 Appellate Court of Connecticut. Submitted on briefs March 19, 2018 Officially released April 3, 2018

29

186

Per Curiam. The judgment is affirmed.

12496126

Tara COOK-LITTMAN et al. v. BOARD OF SELECTMEN OF the TOWN OF FAIRFIELD et al.

Cook-Littman v. Bd. of Selectmen of the Town of Fairfield

2018-05-23

SC 20007

253

266

184 A.3d 253

184

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

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

Fastcase

Tara COOK-LITTMAN et al. v. BOARD OF SELECTMEN OF the TOWN OF FAIRFIELD et al.

Tara COOK-LITTMAN et al. v. BOARD OF SELECTMEN OF the TOWN OF FAIRFIELD et al. SC 20007 Supreme Court of Connecticut. Argued February 22, 2018 Officially released May 23, 2018 James T. Baldwin, with whom, on the brief, was Catherine L. Creager, Fairfield, for the appellants (named defendant et al.). Joel Z. Green, Bridgeport and William M. Burke, Fairfield, with whom, on the brief, was Linda Pesce Laske, for the appellees (plaintiffs). Robert T. Morrin, East Berlin, for the appellee (defendant Michael C. Tetreau). Palmer, McDonald, Robinson, D'Auria, Mullins and Kahn, Js. May 23, 2018, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes. This case originally was scheduled to be argued before a panel of this court consisting of Justices Palmer, McDonald, Robinson, D'Auria, Mullins and Kahn. Although Justice McDonald was not present when the case was argued before the court, he has read the briefs and appendices, and listened to a recording of the oral argument prior to participating in this decision. The listing of justices reflects their seniority status on this court as of the date of oral argument.

7440

45384

ROBINSON, J. In this appeal, we consider how a town charter provision that controls the filling of vacancies on that town's board of selectmen relates to General Statutes § 9-222, which provides a statutory procedure for filling such vacancies, in light of the home rule principles that govern the relationship between municipalities and the state. The defendants town of Fairfield (town) and its Board of Selectmen (board) appeal from the judgment of the trial court granting an application by the plaintiffs, five individual electors of the town, for a writ of mandamus ordering a special election for a vacant seat on the board. On appeal, the defendants claim, inter alia, that article VI, § 6.3 (B), of the Fairfield Town Charter (charter), which does not provide for a special election when the board has acted to fill a vacancy within thirty days, is controlling over § 9-222, which contemplates the possibility of a petition for a special election to fill such a vacancy even after the board has acted, and that, therefore, the trial court improperly issued a writ of mandamus compelling a special election in the present case. We agree with the defendants and, accordingly, reverse the judgment of the trial court. The record, including a joint stipulation of the parties, reveals the following undisputed facts and procedural history. In November, 2015, Michael C. Tetreau, Christopher W. Tymniak, and Laurie McArdle were elected to the board for a four year term commencing on November 20, 2015, and ending on November 20, 2019. McArdle, a member of the Republican Party, subsequently resigned from the position of selectman, effective December 1, 2016. On December 7, 2016, Tetreau and Tymniak, as the remaining selectmen, appointed Edward Bateson III, who is also a member of the Republican Party, to serve out McArdle's remaining term. Subsequently, numerous electors in the town, including the plaintiffs; see footnote 4 of this opinion; filed petitions with Elizabeth Browne, the town clerk, "request[ing] that the vacancy in the office of [s]electman . be filled by a special election in accordance with [ § 9-222 ]." On January 9, 2017, Browne certified that those petitions collectively contained signatures of more than 5 percent of the town's electors. Browne then requested advice from Stanton Lesser, the town attorney, about whether the statutes providing for a special election were applicable because the board had filled the vacancy by appointment within thirty days, as required by § 6.3 (B) of the charter. Lesser responded with a letter to Browne, opining that a special election was necessary. On January 9, 2017, Browne notified the board of the certified petitions and proposed a special election date of June 6, 2017. The minutes of the board's January 25, 2017 meeting included a resolution, approved by the Office of the Secretary of the State (Secretary), scheduling the special election for June 6, 2017, in accordance with General Statutes § 9-164 and 9-222. At the meeting, Tymniak amended that resolution (1) to conclude that, "pursuant to the plain meaning of [§ 6.3 (B) of the charter] there is no need to fill a vacancy on the [board] in accordance with the procedure set forth in [c]hapter 146 of the General Statutes because it was filled by the [remaining selectmen] within [thirty] days," and (2) to declare the petitions for a special election to be "void ab initio insofar as no such special election is required or appropriate under the clear and plain meaning of [the charter]." The board then voted two to one in favor of the amended resolution, thus refusing to set a date for the special election. Lesser then requested an opinion from the Secretary, pursuant to General Statutes § 9-3, concerning whether the town was "legally obligated to hold a special election for the position of [s]electman, said position being . vacated by [McArdle], who was replaced with . Bateson by the remaining two selectmen." Lesser apprised the Secretary about the dispute with respect to the effect of the charter. By letter dated January 30, 2017, Attorney Theodore Bromley issued an opinion, on behalf of the Secretary, concluding that, under § 9-222, Browne was "required to 'call' a special election for the office of [s]electman," which would be held "in accordance with the provisions of . § 9-164," thus requiring the board "to establish a date for the special election . which cannot be later than [150 days] following the filing of the petitions submitted." That letter did not, however, mention the charter. Following subsequent communications with a representative of the Republican town committee, Bromley declined to amend the January 30 letter, stating that the Secretary's interpretive authority is limited to statutes and does not extend to the charter, leaving it to Lesser, as the town attorney, to resolve any conflicts between those sources. Lesser forwarded the January 30 letter to the board with a cover letter dated January 31, 2017, continuing to opine that the board's resolution declining to set a special election improperly "cites only [the charter], and ignores the provisions of . § 9-222 dealing with the term of the appointed selectman, not the method of appointment, which mandates the special election." Lesser provided the board with a resolution for consideration at its February 1, 2017 meeting that would rescind the previous resolution and schedule a special election on June 6, 2017. At that meeting, the board considered Lesser's proposed resolution and voted two to one against it, again declining to schedule a special election. Nevertheless, on February 3, 2017, Lesser instructed Browne to issue statutory notices calling a special election. Browne issued that notice to the Secretary on February 6, 2017, and then sent copies of that notice to the chairmen of the Democratic and Republican town committees. Subsequently, on February 17, 2017, the plaintiffs brought the present application, seeking a writ of mandamus ordering the board to schedule a date for that special election. On March 10, 2017, after hearing argument based on stipulated facts, the trial court concluded that the board was required to conduct a special election in accordance with § 9-222. In a subsequent memorandum of decision, the trial court reasoned that "there is no conflict between the charter and the statute" because "[w]hile both § 9-222 and the . [c]harter require that a vacancy on the [b]oard . be filled within thirty days, only the statute addresses the length of the replacement appointee's term. As the charter does not address the term to be served by the appointed person, and neither authorizes nor forbids a special election, the defendants' restrictive interpretation of the charter would create a conflict where none exists. Accordingly, in the absence of a conflict, the court finds that [General Statutes] § 9-7 does not apply to the present case, and instead finds that the statutory provision concerning special elections in § 9-222 is applicable to the present case." Accordingly, the trial court rendered judgment for the plaintiffs and issued a writ of mandamus ordering the board "to schedule a special election for the office of selectman of . in accordance with . § 9-222 and the applicable statutes referenced therein." The defendants then filed the present appeal from the judgment of the trial court granting the writ of mandamus. With no appellate stay in place prior to the argument and decision of this appeal, the town conducted the special election on June 6, 2017. This resulted in the election of Kevin P. Kiley to the seat previously held by McArdle, into which the board had previously appointed Bateson. On appeal, the defendants ask us to vacate the writ of mandamus, to void the June 6, 2017 special election, and to reinstate Bateson to the board. They claim that the trial court improperly determined that § 6.3 (B) of the charter fails to address the term of the person appointed to fill the vacancy and, therefore, must be read together with § 9-222, which allows a special election. The defendants further contend that the trial court improperly construed § 6.3 (B) of the charter to require a special election because the charter's incorporation of § 9-222, by way of reference to chapter 146 of the General Statutes, was contingent on the board's failure to fill the vacancy within thirty days. Relying on home rule principles, the defendants argue that the charter controls over conflicting statutes insofar as filling a vacancy on a town's legislative body is a matter of local concern. In response, the plaintiffs contend that the trial court properly determined that the town is subject to the procedures set forth in chapter 146 of the General Statutes, and specifically the special election required by § 9-222, because those provisions supplement, rather than conflict with, the charter. The plaintiffs emphasize that "[a]mbiguities in election laws are construed to allow the greatest scope for public participation in the electoral process, to allow candidates to get on the ballot, to allow parties to put their candidates on the ballot, and most importantly to allow the voters a choice on [e]lection [d]ay." (Internal quotation marks omitted.) Butts v. Bysiewicz , 298 Conn. 665, 675, 5 A.3d 932 (2010). Citing article I, § 1.1, of the charter for the proposition that "rights conferred by statute are supplementary to the charter," the plaintiffs then argue that there is no home rule violation because the charter is silent as to the term of office of one appointed to fill a vacancy on the board, and, therefore, the term of office provisions in § 9-222, defining a term of office for an appointee as the earlier of (1) the end of the remaining term of the selectman who the appointee replaced, or (2) the election of a replacement selectman in a duly held special election, do not conflict with the charter. We, however, agree with the defendants and conclude that filling a vacancy on the board is a purely local function that, in light of principles of home rule, must be governed exclusively by § 6.3 (B) of the charter, given its conflict with the procedure set forth in § 9-222. The dispositive issue in this appeal, namely, whether § 6.3 (B) of the charter and § 9-222 conflict, and the effect of any conflict between the two provisions, presents a question of law over which we exercise plenary review. See, e.g., Kiewlen v. Meriden , 317 Conn. 139, 149, 115 A.3d 1095 (2015) (noting plenary standard of review applies to statutory construction and interpretation of municipal charters); see also Board of Education v. Naugatuck , 268 Conn. 295, 307-308, 843 A.2d 603 (2004) ; Windham Taxpayers Assn. v. Board of Selectmen , 234 Conn. 513, 532, 662 A.2d 1281 (1995). "In construing a [municipal] charter, the rules of statutory construction generally apply.... In arriving at the intention of the framers of the charter the whole and every part of the instrument must be taken and compared together. In other words, effect should be given, if possible, to every section, paragraph, sentence, clause and word in the instrument and related laws." (Internal quotation marks omitted.) Kiewlen v. Meriden , supra, at 149, 115 A.3d 1095. "It is settled law that as a creation of the state, a municipality has no inherent powers of its own.... A municipality has only those powers that have been expressly granted to it by the state or that are necessary for it to discharge its duties and to carry out its objects and purposes." (Citations omitted; internal quotation marks omitted.) Windham Taxpayers Assn. v. Board of Selectmen , supra, 234 Conn. at 528-29, 662 A.2d 1281. "The Home Rule Act (act) is the relevant statutory authority. Under the act, municipalities have the power to adopt a charter to serve as the organic law of that municipality.... It is well established that a [town's] charter is the fountainhead of municipal powers.... The charter serves as an enabling act, both creating power and prescribing the form in which it must be exercised." (Citations omitted; footnote omitted; internal quotation marks omitted.) Id., at 529, 662 A.2d 1281 ; see General Statutes § 7-188 (a) ; Windham Taxpayers Assn. v. Board of Selectmen , supra, at 530-31, 662 A.2d 1281 (describing standards for charters prescribed by General Statutes § 7-193, including "the various forms of legislative bodies that municipalities may adopt"). "The purpose [of the act] is clearly twofold: to relieve the General Assembly of the burdensome task of handling and enacting special legislation of local municipal concern and to enable a municipality to draft and adopt a home rule charter or ordinance which shall constitute the organic law of the [municipality], superseding its existing charter and any inconsistent special acts.... The rationale of the act, simply stated, is that issues of local concern are most logically answered locally, pursuant to a home rule charter, exclusive of the provisions of the General Statutes.... Moreover, home rule legislation was enacted to enable municipalities to conduct their own business and [to] control their own affairs to the fullest possible extent in their own way . upon the principle that the municipality itself [knows] better what it want[s] and need[s] than . the state at large, and to give that municipality the exclusive privilege and right to enact direct legislation which would carry out and satisfy its wants and needs.... Consistent with this purpose, a state statute cannot deprive [municipalities] of the right to legislate on purely local affairs germane to [municipal] purposes.... Consequently, a general law, in order to prevail over a conflicting charter provision of a [municipality] having a home rule charter, must pertain to those things of general concern to the people of the state ." (Citations omitted; internal quotation marks omitted.) Board of Education v. Naugatuck , supra, 268 Conn. at 306-307, 843 A.2d 603 ; see also Morris v. Congdon , 277 Conn. 565, 570, 893 A.2d 413 (2006) ("The town in the present case does not have a charter or home rule ordinance, and its powers were not granted by a special act. Thus, its powers are delineated by the General Statutes."). "[I]n an area of local concern, such as local budgetary policy, general statutory provisions must yield to municipal charter provisions governing the same subject matter." Board of Education v. Naugatuck , supra, 268 Conn. at 308-309, 843 A.2d 603. "Our constitutional home rule provision . prohibits the legislature from encroaching on the local authority to regulate matters of purely local concern, such as the organization of local government or local budgetary policy ." (Emphasis altered; footnote added; internal quotation marks omitted.) Id., at 309-10, 843 A.2d 603. "In contrast, matters that concern public health and safety, and other areas within the purview of a state's police power, have traditionally been viewed as matters of statewide concern." Windham Taxpayers Assn. v. Board of Selectmen , supra, 234 Conn. at 536, 662 A.2d 1281. Ultimately, a matter is of local concern when it "relates to concerns that are of particular importance to the town itself" or, put differently, "impacts only the municipality itself and does not affect the interests of the rest of the state." Id., at 536-37, 662 A.2d 1281 ; see also Pereira v. State Board of Education , 304 Conn. 1, 121-22, 37 A.3d 625 (2012) (Palmer, J. , dissenting) (rejecting claim that General Statutes § 10-223e [h], "a statute of general application" imposing training requirement prior to reconstitution of local school board, violates constitutional home rule provision because "education is a matter of statewide concern"). In the present case, the plaintiffs do not dispute the defendants' contention that the process by which a town fills a vacant seat on its local legislative body, such as a board of selectmen, is a matter of purely local concern for the purpose of home rule. See Resnick v. Ulster County , 44 N.Y.2d 279, 287-88, 376 N.E.2d 1271, 405 N.Y.S.2d 625 (1978) (county legislature); Baranello v. Suffolk County Legislature , 126 App. Div. 2d 296, 301-303, 513 N.Y.S.2d 444 (county executive), appeal dismissed, 69 N.Y.2d 1037, 511 N.E.2d 88, 517 N.Y.S.2d 1029 (1987) ; State ex rel. Toledo v. Board of Elections , 95 Ohio St. 3d 73, 79, 765 N.E.2d 854 (2002) (city council); accord Dumais v. Underwood , 47 Conn. App. 783, 793, 707 A.2d 333 ("the manner in which members are appointed to a charter revision commission is a matter of local concern governed by the town's charter, unless specifically prohibited by the constitution or General Statutes"), cert. denied, 244 Conn. 918, 714 A.2d 4 (1998). Accordingly, we must consider whether there is a conflict between § 9-222 and § 6.3 (B) of the charter that would render the latter exclusively controlling with respect to filling a vacant seat on the board. Turning to the statute first, we note that § 9-222 requires the board to fill vacancies within thirty days, and remedies the board's failure to do so by referring the matter to the other "elective town officers" for initial decision. See General Statutes § 9-222 ("[i]f such a vacancy . is not so filled within thirty days after the day of its occurrence, the town clerk shall, within ten days thereafter, notify the elective town officers enrolled in the same political party as the first selectman or selectman, as the case may be, who vacated the office, or all elective town officers, if such first selectman or selectman who vacated the office was not enrolled with a political party, and it shall be filled by such elective town officers within sixty days after its occurrence"). The statute then defines the term of the person appointed by that process to fill the vacancy in the disjunctive, providing that person "shall serve for the portion of the term remaining unexpired or until a special election called as hereinafter provided upon petition of a number of electors of such town equal to five per cent of the names on the last-completed registry list thereof, but not fewer than fifty such electors. Such petition shall be filed no later than fifteen days after the appointment by the remaining selectmen or such elective town officers ." (Emphasis added.) General Statutes § 9-222. In contrast, the charter provides more simply: "At any time a vacancy occurs on the [board], including [f]irst [s]electman, a replacement, who shall be registered with the same political party as the person vacating the office, shall be designated by the remaining [s]electmen. If the [s]electmen designate one of themselves to fill the vacancy, they shall designate another elector to fill the vacancy of [s]electman so created. If the vacancy is not filled within [thirty] days, the vacancy shall be filled in accordance with the procedure set forth in [c]hapter 146 of the General Statutes for filling vacancies in the office of selectman." Fairfield Town Charter § 6.3 (B). Significantly, and in contrast to § 9-222, the charter does not provide for a special election when the board has filled the vacancy within thirty days. "[W]here a charter specifies a mode of appointment, strict compliance is required.... More specifically, [i]f the charter points out a particular way in which any act is to be done or in which an officer is to be elected, then, unless these forms are pursued in the doing of any act or in the electing of the officer, the act or the election is not lawful." (Citation omitted; internal quotation marks omitted.) Bateson v. Weddle , 306 Conn. 1, 14, 48 A.3d 652 (2012) ; see also DeMayo v. Quinn , 315 Conn. 37, 41, 105 A.3d 141 (2014). So long as the board has acted to fill the vacant position within thirty days, § 6.3 (B) of the charter, unlike § 9-222, does not provide for a special election to fill board vacancies. Significantly, the charter explicitly limits the use of statutory procedures by employing the contingent term "if"; such a construction contemplates a contingency that did not occur in the present case-namely, a failure by the board to fill the vacancy created by McArdle's resignation within thirty days. See, e.g., Peck v. Jacquemin , 196 Conn. 53, 70, 491 A.2d 1043 (1985) ("The word 'if,' which is a conjunction, is entitled to be accorded its common meaning here of 'in the event that.' . So interpreted, it introduces the condition or contingency that immediately follows it ." [Citations omitted.] ). Holding a special election after the board has filled a vacancy in a timely manner would require us to rewrite the charter by adding language that its drafters may well have elected to omit. See, e.g., Mayer v. Historic District Commission , 325 Conn. 765, 776, 160 A.3d 333 (2017) ; see also State ex rel. Barlow v. Kaminsky , 144 Conn. 612, 620, 136 A.2d 792 (1957) ("A statute which provides that a thing shall be done in a certain way carries with it an implied prohibition against doing that thing in any other way. An enumeration of powers in a statute is uniformly held to forbid the things not enumerated."). We further disagree with the plaintiffs' argument that we can apply the special election provision of § 9-222 without conflict with the charter because § 6.3 (B) of the charter is silent as to the length of the replacement selectman's term, thus allowing harmonization of the two provisions. Insofar as § 6.3 (B) of the charter-in contrast to § 9-222-does not provide for the prospect of a special election by which to end the term of the board's appointee to the vacancy, it would be surplusage to explain further in the charter that the appointee shall, in the words of the statute, "serve for the portion of the term remaining unexpired." This is because a "vacancy" is understood to mean an opening in an office arising during the term prior to the next regularly scheduled election. As the Rhode Island Supreme Court has explained, the "word 'vacancy' generally has no technical meaning, other than 'empty' and 'unoccupied,' as applied to an office without an incumbent.... 'Vacancy' refers not to the incumbent but to the term or to the office . The office of [the] mayor of Providence was left vacant because it was not occupied by an incumbent who had the right to continue therein until the next general election." (Citations omitted; emphasis added.) Gelch v. State Board of Elections , 482 A.2d 1204, 1211 (R.I. 1984) ; cf. Alcorn ex rel. Hendrick v. Keating , 120 Conn. 427, 434-35, 181 A. 340 (1935) ("[i]n the absence of a definite provision that an officer shall hold not only for the specified term but also until his successor is elected or appointed and qualified, while the incumbent is held to be entitled to hold over until a successor is chosen, he is generally regarded as holding de facto only, so that his occupancy of the office does not prevent the existence of a vacancy to be filled by the authority duly empowered to do so"); see also Gelch v. State Board of Elections , supra, at 1210 (A mayor, who forfeited office because of a felony conviction, was barred from running in a special election to fill that vacancy because the "charter has fixed the 'term of office of the mayor' at four years. The current term of office began in January 1983 and will continue to exist despite a vacancy in the office of mayor until a successor is elected and qualified for the new term beginning in January 1987. A removal of an officer for disqualification does not operate to divide the term or create a new and distinct one."); Turner v. Shumlin , 163 A.3d 1173, 1186-87 (Vt. 2017) (outgoing governor lacked authority to fill anticipated supreme court justice vacancy because vacancy did not yet exist during governor's term); 3 E. McQuillin, Municipal Corporations (3d Ed. Rev. 2017) § 12:164 (citing authorities). To this end, we similarly disagree with the plaintiffs' reliance on § 1.1 of the charter for the proposition that "rights conferred by statute are supplementary to the charter, and the [t]own's electors . possess the power and privilege, conferred upon them by [§] 9-222, of petitioning for a special election to replace an appointed selectman." That section, which governs the "[i]ncorporation and powers" of the town, provides in relevant part: "All the inhabitants dwelling within the [town], as previously constituted, shall continue to be a body politic and corporate under the name of the [town] . and shall have all powers and privileges and immunities previously exercised by the [t]own and not inconsistent with this [c]harter, the additional powers and privileges conferred in this [c]harter, and all powers and privileges conferred upon towns under the General Statutes ." Fairfield Town Charter § 1.1. We disagree with the plaintiffs' reliance on § 1.1 of the charter for two reasons arising from our well established extension of principles of statutory construction to the charter, under which "effect should be given, if possible, to every section, paragraph, sentence, clause and word in the instrument and related laws." (Internal quotation marks omitted.) Kiewlen v. Meriden , supra, 317 Conn. at 149, 115 A.3d 1095. First, § 1.1 of the charter is a general provision that would not control over § 6.3 (B) of the charter, which is specifically on point. See, e.g., Studer v. Studer , 320 Conn. 483, 497-98, 131 A.3d 240 (2016) ("[t]he provisions of one statute which specifically focus on a particular problem will always, in the absence of express contrary legislative intent, be held to prevail over provisions of a different statute more general in its coverage" [internal quotation marks omitted] ). Second, the plaintiffs' interpretation of § 1.1 of the charter would render superfluous the directive in § 6.3 (B) of the charter to follow the statutory procedure in the event that the board fails to act to fill the vacancy within thirty days, by requiring resort to the statutory procedure in all cases. See, e.g., State v. Davalloo , 320 Conn. 123, 140, 128 A.3d 492 (2016) ("[w]e ordinarily do not read statutes so as to render parts of them superfluous or meaningless" [internal quotation marks omitted] ). Given the language of the provisions at issue in the present case, we find particularly instructive the Ohio Supreme Court's decision in State ex rel. Devine v. Hoermle , 168 Ohio St. 461, 156 N.E.2d 131 (1959), which considered conflicting city charter and state statutory provisions with respect to filling a vacancy on the Columbus city council. See id., at 462, 156 N.E.2d 131 ("[w]here such charter provisions specify who shall make such appointments, statutory provisions authorizing an appointment by someone else cannot apply in the absence of their adoption by other provisions of the charter"). Specifically, the charter provision at issue in that case stated only that " '[v]acancies in council shall be filled . by the council for the remainder of the unexpired term,' " whereas the state statute "empower[ed] the mayor to 'fill by . appointment' a vacancy in the legislative authority of a municipal corporation 'if the legislative authority fails within thirty days to fill such vacancy'...." Id., at 463, 156 N.E.2d 131. Considering these two provisions, the court rejected the argument that the mayor had any authority at all under the charter to fill the vacant council seat; this argument had been premised on the theory that the statutory and charter provisions were "not in conflict," but, instead, should be read together so as to require the council to act within a "reasonable time" before the mayor was authorized to act. Id. The court held instead that this reading would impermissibly require the addition of language to the charter, which "grants the power to fill vacancies to council and to no one else. Applying the doctrine of expressio unius est exclusio alterius . it is apparent that the charter denies such power to the mayor. It necessarily follows that the statute giving the mayor such power under certain circumstances conflicts with . the charter." (Citation omitted.) Id. Accordingly, with no attack on the validity of the charter provision at issue in the present case, we conclude that it controls the method by which to fill the vacancy on the board. Because the board timely designated a new selectman, the provision of the charter directing resort to chapter 146 of the General Statutes, which could have required a special election pursuant to § 9-222, simply was not triggered. Finally, we address the plaintiffs' argument, made in their briefs and emphasized at oral argument before this court, that construing the charter in a manner allowing the vacancy to be filled only by appointment or designation, rather than by special election as provided by § 9-222, is antidemocratic and disenfranchises the town's electors, particularly in light of a 2006 charter amendment extending a selectman's term of office from two years to four. First, the electors have not been deprived of their opportunity to participate in the democratic process with respect to the procedure for filling a vacancy because, "[a]s the source of a municipality's powers, charters are generally adopted and amended at a referendum by the municipality's electors. See General Statutes § 7-191." Turn of River Fire Dept., Inc. v. Stamford , 159 Conn. App. 708, 722, 123 A.3d 909 (2015) ; see also id., at 722, 123 A.3d 909 ("[a] charter bears the same general relation to the ordinances of the city that the constitution of the state bears to the statutes" [internal quotation marks omitted] ). Thus, even if we were to agree with the plaintiffs that a special election is, as a public policy matter, the best way to fill the vacancy on the board given the lengthened term of office, "[a]ny change . must come from the inhabitants of the town . who adopted the charter. Although policy considerations may since have changed, and [the charter] provisions may be less desirable to our present society, this court is precluded from substituting its own ideas of what might be a wise provision in place of a clear expression of legislative will." (Internal quotation marks omitted.) Burwell v. Board of Selectmen , 178 Conn. 509, 519, 423 A.2d 156 (1979). "If the charter is to be altered, the town, not this court, must be the forum for any amendment or revision." Id. Accordingly, we conclude that the trial court improperly granted a writ of mandamus directing that a special election be held to fill the vacancy caused by McArdle's resignation. As a result, Bateson is entitled to reinstatement to the office of selectman. The judgment is reversed and the case is remanded with direction to render judgment for the defendants. In this opinion the other justices concurred. General Statutes § 9-222 provides in relevant part: "When a vacancy occurs in the office of first selectman or in the office of selectman it shall be filled within thirty days after the day of its occurrence by the remaining members of the board of selectmen. Said remaining members may appoint one of themselves to fill a vacancy in the office of first selectman, if they so desire, and shall then fill the ensuing vacancy in the office of selectman as herein provided. If such a vacancy in the office of first selectman or of selectman is not so filled within thirty days after the day of its occurrence, the town clerk shall, within ten days thereafter, notify the elective town officers enrolled in the same political party as the first selectman or selectman, as the case may be, who vacated the office, or all elective town officers, if such first selectman or selectman who vacated the office was not enrolled with a political party, and it shall be filled by such elective town officers within sixty days after its occurrence. Any person so appointed shall serve for the portion of the term remaining unexpired or until a special election called as hereinafter provided upon petition of a number of electors of such town equal to five per cent of the names on the last-completed registry list thereof, but not fewer than fifty such electors. Such petition shall be filed no later than fifteen days after the appointment by the remaining selectmen or such elective town officers, as the case may be. Such a special election shall forthwith be called by the town clerk upon the filing of such a petition with him and shall be held in accordance with the provisions of sections 9-164, 9-450 and 9-459...." The individual members of the board at the time the present action was commenced, Michael C. Tetreau, Christopher W. Tymniak, and Edward J. Bateson III, were also named as defendants in their official capacities. We note, however, that Tetreau agrees with the plaintiffs and has adopted their brief in the present appeal. For the sake of convenience, we refer collectively to the town, the board, Tymniak, and Bateson as the defendants. The defendants 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 footnotes 7 and 8 of this opinion (setting forth additional appellate procedural history). The plaintiffs, Tara Cook-Littman, Steven Sheinberg, J. Tyson Toller, Jennifer Jacobsen, and Frank Sahagian, Jr., are electors of the town who have signed a petition seeking a special election pursuant to § 9-222. Article VI, § 6.3 (B), of the Fairfield Town Charter provides: "Method of filling vacancies on the [board]. At any time a vacancy occurs on the [board], including [f]irst [s]electman, a replacement, who shall be registered with the same political party as the person vacating the office, shall be designated by the remaining [s]electmen. If the [s]electmen designate one of themselves to fill the vacancy, they shall designate another elector to fill the vacancy of [s]electman so created. If the vacancy is not filled within [thirty] days, the vacancy shall be filled in accordance with the procedure set forth in [c]hapter 146 of the General Statutes for filling vacancies in the office of selectman." The trial court issued a separate order, "find[ing] good cause to deviate from the statutory scheme," and ordered the following schedule for the special election: (1) "[p]arty nominations on or before April 4, 2017"; (2) "[p]rimary petitions . due by April 18, 2017"; (3) "[p]rimary date May 9, 2017"; and (4) "[s]pecial election to be held on June 6, 2017." The defendants made several unsuccessful attempts to obtain expedited review of this appeal, which they filed in the Appellate Court on April 5, 2017. First, on March 15, 2017, the defendants moved the trial court for an order pursuant to General Statutes § 9-325 to facilitate direct expedited review of an election or primary dispute by this court. See also General Statutes § 51-199(b)(5). On March 20, 2017, the trial court denied the defendants' motion, concluding in a memorandum of decision issued on March 24, 2017, that this case did not arise from a "ruling of an election official" or in connection with an election as contemplated by General Statutes § 9-328. The defendants also filed two separate applications to the Chief Justice for certification to appeal pursuant to General Statutes § 52-265a. Chief Justice Rogers denied the first application, filed on March 30, 2017, "without prejudice to the filing of a second application by either party following any ruling by the trial court on the issue of a stay of execution during the pendency of the appeal in the Appellate Court." Following the termination of the appellate stay by the trial court, Chief Justice Rogers subsequently denied the defendants' second application, which was filed on May 17, 2017. We note that prior to the transfer of the appeal from the Appellate Court to this court; see footnote 3 of this opinion; the trial court granted the plaintiffs' motion to terminate the appellate stay. On May 24, 2017, the Appellate Court granted the defendants' motion for review, but denied the relief requested, thus declining to disturb the trial court's decision to terminate the appellate stay. On June 2, 2017, the Appellate Court granted the board's motion for reconsideration en banc, but denied the relief requested, relying on Tomasso Bros, Inc. v. October Twenty-Four, Inc. , 230 Conn. 641, 657, 646 A.2d 133 (1994), and Monroe v. Middlebury Conservation Commission , 187 Conn. 476, 481, 447 A.2d 1 (1982), to conclude that the trial court's judgment granting a writ of mandamus and ordering that the board schedule a special election was in effect a permanent injunction from which no automatic stay arose. On June 21, 2017, the defendants filed a petition for certification to appeal from the decision of the Appellate Court terminating the stay, which we dismissed on November 2, 2017. See Cook-Littman v. Board of Selectmen , 327 Conn. 956, 171 A.3d 1050 (2017). By way of background, we note that a "writ of mandamus is an extraordinary remedy, available in limited circumstances for limited purposes.... It is fundamental that the issuance of the writ rests in the discretion of the court, not an arbitrary discretion exercised as a result of caprice but a sound discretion exercised in accordance with recognized principles of law.... That discretion will be exercised in favor of issuing the writ only where the plaintiff has a clear legal right to have done that which he seeks.... The writ is proper only when (1) the law imposes on the party against whom the writ would run a duty the performance of which is mandatory and not discretionary; (2) the party applying for the writ has a clear legal right to have the duty performed; and (3) there is no other specific adequate remedy.... "In deciding the propriety of a writ of mandamus, the trial court exercises discretion rooted in the principles of equity.... In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action.... Nevertheless, this court will overturn a lower court's judgment if it has committed a clear error or misconceived the law." (Citations omitted; internal quotation marks omitted.) Morris v. Congdon , 277 Conn. 565, 569, 893 A.2d 413 (2006). "In the numerous jurisdictions having either constitutional or legislative municipal home rule, the overwhelming view accords to the municipality the fullest extent of home rule authority, consistent with law, in matters of local concern.... Furthermore, in order to achieve the goal of local autonomy over issues of local concern, we do not apply a strict construction to the home rule legislation, because to do so would stifle local initiative ." (Citations omitted; internal quotation marks omitted.) Windham Taxpayers Assn. v. Board of Selectmen , supra, 234 Conn. at 535, 662 A.2d 1281. Article tenth, § 1, of the Connecticut constitution provides: "The general assembly shall by general law delegate such legislative authority as from time to time it deems appropriate to towns, cities and boroughs relative to the powers, organization, and form of government of such political subdivisions. The general assembly shall from time to time by general law determine the maximum terms of office of the various town, city and borough elective offices. After July 1, 1969, the general assembly shall enact no special legislation relative to the powers, organization, terms of elective offices or form of government of any single town, city or borough, except as to (a) borrowing power, (b) validating acts, and (c) formation, consolidation or dissolution of any town, city or borough, unless in the delegation of legislative authority by general law the general assembly shall have failed to prescribe the powers necessary to effect the purpose of such special legislation." We note that the act does not, however, give municipalities carte blanche with respect to of the conduct of their elections. See General Statutes § 7-192a ("No provision of this chapter shall be deemed to empower any municipality to levy or collect any tax not authorized by the general statutes or to adopt a charter, charter amendments or home rule ordinance amendments which shall affect matters concerning qualification and admission of electors; duties and responsibilities of registrars of voters; duties and responsibilities of town clerks with respect to electors, voting and elections; forfeiture of electoral rights and restoration of the same; absentee voting; conduct of and procedures at elections; hours of voting; canvass of electors; preliminary, final and supplementary registry lists; warning of elections; election officials and their duties and responsibilities; election canvass and returns; election contests; corrupt practices; prohibited acts with respect to elections; nomination of candidates; adoption and amendment of party rules; primaries; and political parties and enrollment therein."). We acknowledge that, in determining whether a municipal charter governs, judicial opinions discussing the legal concept of home rule often refer to "conflicts" between local charters and state statutes. See, e.g., Board of Education v. Naugatuck , supra, 268 Conn. at 306-307, 843 A.2d 603. We emphasize, however, that when a charter speaks to a matter of local concern, the relevant charter provision governs proceedings on that point regardless of the existence of a state statute addressing the same topic. Even if that charter provision is ambiguous, the statute's role is limited to its relevance to resolving the ambiguity in the charter; the statute governs only when the charter does not address the situation at hand. "The leading legal dictionary unambiguously defines the word 'vacancy' as follows: '1. The quality, state, or condition of being unoccupied, esp. in reference to an office . 2. The time during which an office . is not occupied. 3. An unoccupied office . [A] vacancy, properly speaking, does not occur until the officer is officially removed. 4. A job opening; a position that has not been filled.' . Black's Law Dictionary (10th Ed. 2014) [p. 1782] ." (Citations omitted.) Turner v. Shumlin , 163 A.3d 1173, 1184 (Vt. 2017). Given the primacy of the charter over the conflicting statutory provision in this uniquely local matter, and the lack of any statutory language in § 9-222 expressly invalidating local provisions to the contrary, we address only briefly the parties' arguments with respect to whether General Statutes § 9-7 preserves the charter in the wake of the enactment of § 9-222, even though the town has amended the relevant charter provisions since 1953. Specifically, the defendants contend that § 6.3 (B) of the charter is "grandfathered explicitly by § 9-7" because it existed prior to 1953, whereas the plaintiffs argue that § 9-7 is inapplicable because the charter has been amended six times and now "differs significantly from the charter in effect in 1953, including being different with respect to the term of office of selectmen and the manner of filling vacancies [on] the [board]." We observe that § 9-7 provides: "No provision of this title or the sections listed in section 9-1 shall be construed to repeal any charter provision in existence on May 14, 1953, relative to the election, term of office or powers or duties of any municipal officer or to the manner of warning or conducting any municipal meeting or any election, but the powers and duties of such officers shall remain as provided in such charter." In light of the act, we understand § 9-7 to preserve charter provisions governing municipal elections that otherwise would be expressly preempted by state statutes, but for the fact that they existed on May 14, 1953. See Blanco v. Gangloff , 28 Conn. Supp. 403, 405-409, 265 A.2d 502 (1970) (rejecting claim that, under § 9-7, city charter took "precedence" over General Statutes § 9-167a, minority representation statute, given preemptive language in § 9-167a and subsequent special acts conforming charter to § 9-167a ).

12492050

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

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

2018-02-27

SC 19815

1157

1158

177 A.3d 1157

177

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

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

Fastcase

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

A BETTER WAY WHOLESALE AUTOS, INC. v. COMMISSIONER OF MOTOR VEHICLES SC 19815 Supreme Court of Connecticut. Argued November 13, 2017 Officially released February 27, 2018 Drew S. Graham, assistant attorney general, with whom, on the brief, was George Jepsen, attorney general, for the appellant (defendant). Kenneth A. Votre, New Haven, with whom was Marissa Florio, for the appellee (plaintiff). Palmer, McDonald, Robinson, Mullins and Kahn, Js. This case originally was scheduled to be argued before a panel of this court consisting of Justices Palmer, McDonald, Robinson, Mullins and Kahn. Although Justices Robinson and Kahn 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.

623

3913

PER CURIAM. The plaintiff, A Better Way Wholesale Autos, Inc., holds licenses from the Department of Motor Vehicles to deal in motor vehicles at two locations, but sought no such license for a third location at which it displays several hundred vehicles that may be purchased at one of the licensed locations. The defendant, the Commissioner of Motor Vehicles, determined that the plaintiff had violated General Statutes § 14-52 and 14-54, respectively, by failing to obtain a license for that location and by failing to obtain a certificate of approval from local authorities for that location and to verify such approval with the defendant. The defendant imposed civil penalties in the amount of $5000 and ordered the plaintiff to cease such activity at that location unless and until it obtained the requisite license and certificate. In the plaintiff's administrative appeal, the trial court affirmed the defendant's decision with respect to the finding of a violation of the certificate requirement under § 14-54, but sustained the plaintiff's appeal with respect to the defendant's finding of a violation of the license requirement under § 14-52. The plaintiff appealed from the trial court's judgment. The defendant did not cross appeal. The Appellate Court reversed the trial court's judgment with respect to its finding of a violation of § 14-54 and remanded the case to that court with direction to sustain the plaintiff's appeal. A Better Way Wholesale Autos, Inc. v. Commissioner of Motor Vehicles , 167 Conn. App. 207, 219, 142 A.3d 1209 (2016). Thereafter, we granted the defendant's request for certification to appeal, limited to the following questions: "Did the Appellate Court correctly conclude that a car dealer's license is not conditioned upon local approval for each proposed location pursuant to . [ § 14-54 ]?"; and "Did the Appellate Court correctly conclude that there was a lack of substantial evidence in the record to support the Department of Motor Vehicles hearing officer's finding that the plaintiff violated [ § 14-54 ]?" A Better Way Wholesale Autos, Inc. v. Commissioner of Motor Vehicles , 323 Conn. 925, 150 A.3d 229 (2016). 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. We note that § 14-54 has been amended by the legislature since the events underlying the present case; see Public Acts 2016, No. 16-55, § 4; that amendment has no bearing on the merits of this appeal. In the interest of simplicity, we refer to the current revision of the statute. We note that the first certified question imprecisely characterizes the Appellate Court's decision, as we construe that court to have concluded that § 14-54 does not prescribe a licensing requirement for each location, as that matter is addressed in other provisions. See A Better Way Wholesale Autos, Inc. v. Commissioner of Motor Vehicles , supra, 167 Conn. App. at 218-19 and n.8.

12492061

Charles HENRY III et al. v. Gregory IMBRUCE et al. Starboard Resources, Inc. v. Charles Henry III et al.

Henry v. Imbruce

2017-12-26

AC 39155

1168

1185

177 A.3d 1168

177

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 Mullins, Js.

Charles HENRY III et al. v. Gregory IMBRUCE et al.

Charles HENRY III et al. v. Gregory IMBRUCE et al. Starboard Resources, Inc. v. Charles Henry III et al. AC 39155 Appellate Court of Connecticut. Argued September 18, 2017 Officially released December 26, 2017 Richard S. Gora, for the appellants (defendants). Scott M. Harrington, with whom, on the brief, were Jonathan P. Whitcomb and Bridgitte E. Mott, for the appellees (plaintiffs). DiPentima, C.J., and Sheldon and Mullins, Js.

6458

42367

DiPENTIMA, C.J. The defendants appeal from the judgments of the trial court confirming an arbitration award in favor of the plaintiffs. On appeal, the defendants claim that the court erred in denying their motion to vacate the award and in granting the plaintiffs' motion to confirm the award because the arbitrator failed to disclose a conflict of interest, failed to order production of certain evidence and exceeded her powers under the arbitration agreements. We disagree. Accordingly, we affirm the judgments of the trial court. The following facts, as set forth by the trial court in its April 11, 2016 memorandum of decision, and procedural history are relevant to this appeal. "These consolidated cases arise out of the plaintiffs' investment in three limited partnerships: Giddings Oil & Gas, L.P. (Giddings, L.P.), Hunton Oil Partners, L.P. (Hunton, L.P.), and ASYM Energy Fund III, L.P. (ASYM, L.P.). The plaintiffs are investors and limited partners in each of these limited partnerships. Each of the limited partnerships had a general partner which is a limited liability company: Giddings Genpar, LLC (Giddings Genpar), Hunton Oil Genpar, LLC (Hunton Genpar), and ASYM [Capital] III, LLC (ASYM Genpar), respectively. "Each of the limited liability companies that served as a general partner of a limited partnership had a manager; the manager of Giddings Genpar was Giddings Investments, LLC, the manager of Hunton Genpar was Glenrose Holdings, LLC, and the manager of ASYM Genpar was ASYM Energy Investments, LLC. The plaintiffs in their complaint alleged that the individual defendant Gregory Imbruce . exercised complete control over the managers and therefore over the general partners and over the limited partnerships. The various companies which acted as general partners and/or managers, as well as Imbruce individually, will be collectively referred to as the . defendants. The plaintiffs brought this action individually and derivatively on behalf of the three limited partnerships. "In their second amended complaint (in docket number CV-12-6014987-S) the plaintiffs alleged various fact patterns pursuant to which they asserted that the . defendants have made misrepresentations in the marketing of the investments, that the . defendants have violated the provisions of the Connecticut Uniform Securities Act (CUSA), [ General Statutes § 36b-2 et seq. ], and that the . defendants have wrongfully diverted assets of the various limited partnerships to their own purposes or accounts. The second amended complaint sounds in [eleven] counts which seek both injunctive relief and monetary damages, alleging counts that sound in fraud, breach of fiduciary duty, conversion, civil theft, and violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110b et seq., among other theories of relief. The prayer for relief in the second amended complaint seeks both equitable relief and monetary damages. "The case of Starboard Resources, Inc. v. Henry , Superior Court, judicial district of Stamford, Docket No. CV-12-6015112-S (Starboard case), is an interpleader action in which Starboard Resources, Inc. (Starboard), seeks, inter alia, an order of the court authorizing it to deposit the disputed shares in court and a judicial determination regarding the relative rights of the parties to those shares. "On July 11, 2014, the court granted the motion of the . defendants to stay these actions pending completion of arbitration proceedings, some of which had already begun.... Consistent with the court order staying this action, the parties proceeded to arbitration and by subsequent agreement broadened the arbitration beyond that which they had previously agreed to in their limited partnership agreements. The parties proceeded with the arbitration before a single arbitrator. "On September 10, 2015, the arbitrator rendered an award in favor of the plaintiffs herein, who as respondents in the arbitration proceeding had filed a counterclaim, including allegations similar in nature to the allegations of the second amended complaint previously described. The award consisted of declaratory awards, monetary damages, awards of [attorney's] fees, interest, injunctive relief requiring an accounting, post-judgment interest, as well as awards of arbitration fees and costs." (Footnotes added and omitted.) On September 14, 2015, the plaintiffs filed a motion in the trial court to confirm the arbitration award. On October 13, 2015, the defendants filed an objection to the plaintiffs' motion to confirm the award and a cross motion to vacate the award accompanied by scores of exhibits. A flurry of procedural and substantive filings followed, until, on February 8, 2016, the court held a hearing on the parties' respective motions. The court, after further briefing, rendered judgments in accordance with the arbitrator's decision on April 11, 2016, confirming the arbitral award. This appeal followed. Additional facts and procedural history will be set forth as necessary. We begin with applicable legal principles. The court found, and the parties agree, that these cases, though brought in state court, are governed by the federal Arbitration Act, 9 U.S.C. § 1 through 16 (arbitration act), because the underlying contracts involve interstate commerce. "Arbitration is essentially a creature of contract, a contract in which the parties themselves charter a private tribunal for the resolution of their disputes.... Arbitration agreements are contracts and their meaning is to be determined . under accepted rules of [state] contract law . "Judicial construction of an arbitration agreement, however, is not guided solely by the principles of relevant state contract law. The arbitration act; 9 U.S.C. § 1 through 16 ; governs written arbitration agreements that pertain to contracts involving interstate commerce.... The arbitration act creates a body of federal substantive law of arbitrability, applicable to any arbitration agreement within the coverage of the [a]ct . As federal substantive law . the arbitration act is to be applied by state courts as well as by federal courts.... "The purpose of the arbitration act is to ensure that private agreements to arbitrate are enforced according to their terms.... The arbitration act establishes a strong federal policy favoring arbitration.... [W]hen Congress passed the [a]rbitration [a]ct in 1925 . [i]t intended courts to enforce [arbitration] agreements into which parties had entered . and to place such agreements upon the same footing as other contracts ." (Citations omitted; footnote omitted; internal quotation marks omitted.) Hottle v. BDO Seidman, LLP , 268 Conn. 694, 701-703, 846 A.2d 862 (2004). Accordingly, the court's review of an arbitration award is "extremely limited." Burns International Security Services, Inc. v. International Union, United Plant Guard Workers of America (UPGWA) and its Local 537 , 47 F.3d 14, 17 (2d Cir. 1995). Courts may vacate an arbitrator's decision "only in very unusual circumstances." First Options of Chicago, Inc. v. Kaplan , 514 U.S. 938, 942, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995). "Following issuance of an arbitration award, § 9 of the [arbitration act] provides that a party may apply to a [trial] court 'for an order confirming the award, and thereupon the court must grant such an order unless the award is vacated, modified, or corrected as prescribed in sections 10 and 11 of this title.' " STMicroelectronics, N.V. v. Credit Suisse Securities (USA), LLC , 648 F.3d 68, 74 (2d Cir. 2011). "Only a barely colorable justification for the outcome reached by the arbitrators is necessary to confirm the award." (Internal quotation marks omitted.) D.H. Blair & Co. v. Gottdiener , 462 F.3d 95, 110 (2d Cir. 2006). Accordingly, "[a] party petitioning a . court to vacate an arbitral award bears the heavy burden of showing that the award falls within a very narrow set of circumstances delineated by statute and case law." Duferco International Steel Trading v. T. Klaveness Shipping A/S , 333 F.3d 383, 388 (2d Cir. 2003). Specifically, under the arbitration act, an arbitration award may be vacated only "(1) where the award was procured by corruption, fraud, or undue means; (2) where there was evident partiality or corruption in the arbitrators, or either of them; (3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or (4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made." 9 U.S.C. § 10 (a) (2012). Given these limitations on a court's review of the arbitration award, "[w]e review a [trial] court's decision to confirm or vacate an arbitration award de novo on questions of law and for clear error on findings of fact." National Football League Management Council v. National Football League Players Assn. , 820 F.3d 527, 536 (2d Cir. 2016) ; see also Kellogg v. Middlesex Mutual Assurance Co. , 326 Conn. 638, 645, 165 A.3d 1228 (2017) (reviewing trial court's vacatur de novo). We turn now to the defendants' claims. I The defendants first claim that the court should have vacated the arbitration award because the arbitrator failed to disclose a conflict of interest. Specifically, the defendants argue that the arbitrator was required to disclose the fact that she had arbitrated the personal divorce of an attorney, Kenneth Votre, who represented Imbruce and Glenrose Holdings, LLC, in a separate but related malpractice action. We do not agree. An arbitration award may be vacated "where there was evident partiality or corruption in the arbitrators ." 9 U.S.C. § 10 (a) (2) (2012). "Evident partiality may be found only where a reasonable person would have to conclude that an arbitrator was partial to one party to the arbitration.... Although a party seeking vacatur must prove evident partiality by showing something more than the mere appearance of bias . [p]roof of actual bias is not required.... Rather, partiality can be inferred from objective facts inconsistent with impartiality.... A showing of evident partiality must be direct and not speculative." (Citations omitted; internal quotation marks omitted.) Kolel Beth Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable Trust , 729 F.3d 99, 104 (2d Cir. 2013). The party seeking vacatur must prove evident partiality by "clear and convincing evidence." Id., at 106. "[T]he evident-partiality standard [is] not satisfied because the undisclosed relationship at issue was too insubstantial to warrant vacating the award.... [W]here an undisclosed matter is not suggestive of bias, vacatur based upon that nondisclosure cannot be warranted under an evident-partiality theory." (Citations omitted; internal quotation marks omitted.) Scandinavian Reinsurance Co. Ltd. v. Saint Paul Fire & Marine Ins. Co. , 668 F.3d 60, 72-73 (2d Cir. 2012). Indeed, "there is no duty to disclose if the relationship is trivial." Uhl v. Komatsu Forklift Co., Ltd. , 512 F.3d 294, 307 (6th Cir. 2008). Nevertheless, "arbitrators must take steps to ensure that the parties are not misled into believing that no nontrivial conflict exists. It therefore follows that where an arbitrator has reason to believe that a nontrivial conflict of interest might exist, he must (1) investigate the conflict . or (2) disclose his reasons for believing there might be a conflict and his intention not to investigate.... [A] failure to either investigate or disclose an intention not to investigate is indicative of evident partiality." (Citations omitted.) Applied Industrial Materials Corp. v. Ovalar Makine Ticaret Ve Sanayi, A.S. , 492 F.3d 132, 138 (2d Cir. 2007). The defendants argue that the purported conflict was nontrivial and that the arbitrator misled them into believing that no nontrivial conflict existed. Specifically, the defendants contend that they were misled because the arbitrator's initial disclosures at the start of the arbitration suggested that she considered any prior arbitral relationships to be per se nontrivial, but the arbitrator then failed to disclose her arbitral relationship with Attorney Votre. We are not persuaded. The conflict here alleged, if one existed, was merely trivial-regardless of the substance of the arbitrator's initial disclosures. In its memorandum of decision, the court found that "[t]he divorce arbitration did not involve any of the parties to the subject arbitration. The divorce arbitration did not involve any of the attorneys or witnesses to the subject arbitration. The divorce arbitration involved an attorney who did not participate in the subject arbitration and did not represent any of the defendants or any other parties in the subject arbitration. The divorce arbitration involved an attorney who represented some of the defendants in a completely unrelated matter." The defendants argue, however, that the arbitrator's adverse decision in Attorney Votre's divorce, and the Superior Court's subsequent vacatur thereof, evince such bias against Attorney Votre that a reasonable person would have to conclude that the arbitrator was predisposed to rule against any party tangentially affiliated with him. We are not persuaded. The United States Court of Appeals for the Second Circuit has "repeatedly said that adverse rulings alone rarely evidence partiality, whether those adverse rulings are made by arbitrators . or by judges ." (Citations omitted.) Scandinavian Reinsurance Co. Ltd. v. Saint Paul Fire & Marine Ins. Co. , supra, 668 F.3d at 75 ; see also Burton v. Mottolese , 267 Conn. 1, 49, 835 A.2d 998 (2003) ( "adverse rulings do not amount to evidence of bias"), cert. denied, 541 U.S. 1073, 124 S.Ct. 2422, 158 L.Ed.2d 983 (2004). The Superior Court's vacatur of the arbitrator's award in Attorney Votre's divorce does not give substance to the defendants' speculative claim, especially where the vacatur was premised on a statutory ground other than evident partiality. See footnote 8 of this opinion. There being no indicia of bias, the arbitrator's involvement in her professional capacity in a "completely unrelated matter" is too attenuated to be of any consequence in the underlying arbitration. The Second Circuit has held that "to disqualify any arbitrator who had professional dealings with one of the parties (to say nothing of a social acquaintanceship) would make it impossible, in some circumstances, to find a qualified arbitrator at all." Morelite Construction Corp. v. New York City District Council Carpenters Benefit Funds , 748 F.2d 79, 83 (2d Cir. 1984). The arbitrator's prior arbitration involving Attorney Votre did not give rise to a material relationship with a party that would require disqualification. Scandinavian Reinsurance Co. Ltd. v. Saint Paul Fire & Marine Ins. Co. , supra, 668 F.3d at 74 ("overlapping arbitral service [is] not a material relationship with a party . such as a family connection or ongoing business arrangement with a party or its law firm-circumstances in which a reasonable person could reasonably infer a connection between the undisclosed outside relationship and the possibility of bias for or against a particular arbitrating party" [citation omitted; internal quotation marks omitted] ). Nevertheless, the defendants argue that the arbitrator's initial disclosures defined what kind of relationship is nontrivial for the purposes of this arbitration. That is, the defendants argue that the arbitrator's disclosure of some previous arbitrations involving one of the parties' law firms necessitates the disclosure of all previous arbitrations involving one of the parties' law firms. In support of this contention, the defendants rely principally on Applied Industrial Materials Corp. v. Ovalar Makine Ticaret Ve Sanayi, A.S. , supra, 492 F.3d 132, and New Regency Productions, Inc. v. Nippon Herald Films, Inc. , 501 F.3d 1101 (9th Cir. 2007). Their reliance is misplaced. In the former, the United States Court of Appeals for the Second Circuit vacated an arbitration award because the arbitrator, the chief executive officer of a third party corporation, having first disclosed that he had become aware of contract negotiations between his subsidiary and a party's parent company, failed to investigate and disclose that, in fact, a contract already existed. Applied Industrial Materials Corp. v. Ovalar Makine Ticaret Ve Sanayi, A.S. , supra, at 138. In the latter, the United States Court of Appeals for the Ninth Circuit vacated an arbitration award where the arbitrator, having disclosed past negotiations on behalf of a previous employer with people who later became executives of one of the parties, failed to disclose his new employer's past negotiations with a film producer who was affiliated with one of the parties. New Regency Productions, Inc. v. Nippon Herald Films, Inc. , supra, at 1110 ("it is precisely against the background of previously disclosed information that [the arbitrator's] failure to disclose his new position might have 'misled' [the defendant] 'into believing that no nontrivial conflict exist[ed],' " citing Applied Industrial Materials Corp. v. Ovalar Makine Ticaret Ve Sanayi, A.S. , supra, at 137 ). Neither case is analogous to the present one; the conflicts in those cases are material, substantial business relationships in which the arbitrator had a specific, material interest. The purported conflict here is arbitral service in two completely unrelated matters. Logically, for an arbitrator to "mislead" a party into believing that no nontrivial conflict exists, a nontrivial conflict must in fact exist. As we have stated, any purported conflict here is trivial, as a reasonable person would not have to conclude that it made the arbitrator partial to one party to the arbitration. See Kolel Beth Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable Trust , supra, 729 F.3d at 106. Accordingly, the trial court did not err in declining to vacate the arbitration award for evident partiality. II The defendants next claim that the court erred in confirming the arbitration award where the arbitrator failed to order production of relevant and probative evidence from the plaintiffs and allowed the plaintiffs to amend their counterclaim to allege new claims for which discovery was not allowed. The defendants argue that each of these errors individually, or, in the alternative, that all of these errors together, amounted to misconduct in violation of 9 U.S.C. § 10 (a) (3). We do not agree. "Courts have interpreted [§] 10 (a) (3) to mean that except where fundamental fairness is violated, arbitration determinations will not be opened up to evidentiary review. In making evidentiary determinations, an arbitrator need not follow all the niceties observed by the federal courts.... However, although not required to hear all the evidence proffered by a party, an arbitrator must give each of the parties to the dispute an adequate opportunity to present its evidence and argument.... Federal courts do not superintend arbitration proceedings. Our review is restricted to determining whether the procedure was fundamentally unfair. See Teamsters, Chauffeurs, Warehousemen, Helpers & Food Processors, Local Union 657 v. Stanley Structures, Inc. , 735 F.2d 903, 906 (5th Cir. 1984) ; accord Concourse Beauty School, Inc. v. Polakov , 685 F.Supp. 1311, 1318 (S.D.N.Y. 1988) ( [t]he misconduct must amount to a denial of fundamental fairness of the arbitration proceeding in order to warrant vacating the [award, quoting] Transit Casualty Co. v. Trenwick Reinsurance Co. Ltd. , 659 F.Supp. 1346, 1354 [S.D.N.Y. 1987], aff'd mem., 841 F.2d 1117 [2d Cir. 1988] )." (Citations omitted; internal quotation marks omitted.) Tempo Shain Corp. v. Bertek, Inc. , 120 F.3d 16, 20 (2d Cir. 1997). "Under the [arbitration act's] extremely limited standard of review for vacatur requests, [trial] courts are not empowered to second-guess such decisions-procedural or substantive-even if there is evidence that the arbitrator erred." ARMA, S.R.O. v. BAE Systems Overseas, Inc. , 961 F.Supp.2d 245, 264 (D.D.C. 2013). The Connecticut Supreme Court has held that arbitral misconduct violates a party's right to a fundamentally fair arbitration hearing if that misconduct is substantially prejudicial. "[T]o vacate an arbitrator's award on the ground of misconduct under [General Statutes] § 52-418 (a) (3), the moving party must establish that it was substantially prejudiced by the improper ruling.... This requirement that the moving party establish substantial prejudice is consistent with the showing that this court requires to order a new trial when a trial court makes an improper evidentiary ruling in a civil trial.... "Federal case law considering whether an arbitrator's evidentiary ruling deprived a party of a fair hearing is consistent with requiring the moving party to demonstrate substantial prejudice to vacate an award on this ground. One federal court analogized to the standard of review accorded trial courts' evidentiary rulings and declined to vacate an arbitrator's award because 'it cannot be said as a matter of law that [the excluded evidence] was decisive or that its exclusion was seriously harmful in the light of the other evidence in the case.' " (Citations omitted; footnote added.) Bridgeport v. Kasper Group, Inc. , 278 Conn. 466, 476-77, 899 A.2d 523 (2006), quoting Newark Stereotypers' Union No. 18 v. Newark Morning Ledger Co. , 397 F.2d 594, 599 (3d Cir.), cert. denied, 393 U.S. 954, 89 S.Ct. 378, 21 L.Ed.2d 365 (1968). The defendants argue that the arbitrator should have (1) ordered production of documents relating to the valuation of Starboard, (2) ordered production of the statements made by the plaintiffs' attorney to the Department of Banking, (3) ordered production of communications between and among the plaintiffs and their attorney and (4) denied the plaintiffs' motion to amend their counterclaim or at least allowed further discovery thereon. Because the defendants cannot demonstrate substantial prejudice, and, therefore, a denial of fundamental fairness, we are not persuaded. A First, the defendants argue that the arbitrator should have compelled the plaintiffs to turn over documents pertinent to the valuation of Starboard because its value was central to the defendants' claim of damages. The arbitrator, however, found that the plaintiffs were not liable to the defendants. As a result, any evidence-or lack thereof-as to the defendants' damages would not have affected the award. The defendants, therefore, cannot establish substantial prejudice. See Odeon Capital Group, LLC v. Ackerman , 864 F.3d 191, 194 (2d Cir. 2017) (holding that petitioner must demonstrate material nexus between allegation of fraud under 9 U.S.C. § 10 [a] [1], and award); Karppinen v. Karl Kiefer Machine Co. , 187 F.2d 32, 34-35 (2d Cir. 1951) (affirming arbitration award where perjured material evidence was nonetheless "extremely remote"); Rintin Corp., S.A. v. Domar, Ltd. , 374 F.Supp.2d 1165, 1170 (S.D. Fla. 2005) ("[p]laintiff has not shown how the discovery it claims it was unable to obtain is relevant, or would have affected the Award in any material respect"), aff'd, 476 F.3d 1254 (11th Cir. 2007). Thus, even if we assume, arguendo, that the arbitrator erred in refusing to compel discovery of the valuation material, such error did not affect the award. The arbitrator's refusal to compel discovery of it, therefore, is not substantially prejudicial and, thus, is not fundamentally unfair. B Second, the defendants have admitted that they have "no idea" what the communications with the Department of Banking, which may have been relevant to the defendants' defenses against the plaintiffs' CUSA claim, contain. The defendants speculate that the documents may reveal "impeachment material, damaging admissions by the [p]laintiffs, contradictions or other facts which were and remain unknown to the [defendants]." The arbitrator concluded that these documents were privileged. The defendants nevertheless argue that because they were deprived of the opportunity to examine these documents, they were denied a full and fair hearing. This argument is unavailing. "The [arbitration act] does not bestow on a party the right to receive information about every matter that it might consider important or useful in presenting its case." Scandinavian Reinsurance Co. Ltd. v. Saint Paul Fire & Marine Ins. Co. , supra, 668 F.3d at 77. The defendants' speculative assertions about what the requested documents may have contained do not demonstrate prejudice, and, thus, fundamental unfairness. The defendants had ample opportunity to challenge the plaintiffs' CUSA counterclaim in the arbitration. Throughout the preliminary stages of arbitration and in the hearing itself, the defendants offered several defenses, produced testimony as to those defenses, introduced numerous exhibits in support thereof, and thoroughly cross-examined the plaintiffs' witnesses. Thus, the court correctly concluded that the defendants were not deprived of a fair hearing. See Tempo Shain Corp. v. Bertek, Inc. , supra, 120 F.3d at 20. Therefore, even if we assume, without deciding, that the arbitrator erred in concluding that the documents were privileged, the defendants are unable to demonstrate substantial prejudice resulting in a violation of their right to a full and fair hearing. C Third, the defendants argue that they were prejudiced by the arbitrator's decision not to compel production of communications between and among the plaintiffs, their attorney, Jonathan Whitcomb, and erstwhile plaintiff, William Pettinati, who later aligned with Imbruce. The defendants contend that there was no privilege protecting these communications, and that even if there was, Pettinati waived the privilege by filing a grievance against Attorney Whitcomb. Additionally, the defendants argue that the arbitrator clearly was biased because she ordered discovery of their own communications with their former law firm, Levett Rockwood, P.C. The plaintiffs counter that the documents remained privileged because they were created in the then common interest of the plaintiffs, Pettinati and Attorney Whitcomb, an interest that the plaintiffs still hold in common with their attorney. The plaintiffs also argue that the defendants filed a malpractice claim against Levett Rockwood, and thereby waived any privilege. Once more, the arbitrator's conclusions are entitled to great deference. See ARMA, S.R.O. v. BAE Systems Overseas, Inc. , supra, 961 F.Supp.2d at 264. Even if we assume, without deciding, that the arbitrator erred in her application of the legal principles underlying the various privileges and waivers asserted, the defendants cannot demonstrate substantial prejudice, and, thus, fundamental unfairness: They again admit that the contents of the communications at issue are unknown to them, arguing only that they are "potentially relevant and dispositive" without demonstrating how or why. Indeed, the defendants are merely disputing the merits of the arbitrator's conclusion rather than whether the conclusion resulted from the violation of their right to a fundamentally fair hearing. This is not the evidence of misconduct the arbitration act requires. D Fourth, the defendants argue that they were prejudiced by the arbitrator's decision to allow the plaintiffs to amend their counterclaim after the conclusion of discovery and less than three weeks before the hearing. Specifically, the defendants contend that the plaintiffs waived and/or withdrew several claims they then realleged, namely, a CUTPA claim, a civil theft claim and alter ego claims against Imbruce personally. We are not persuaded. The arbitrator has broad discretion to allow amendments to pleadings. See Saphir v. Neustadt , 177 Conn. 191, 206, 413 A.2d 843 (1979) ("a trial court may allow, in its discretion, an amendment to pleadings before, during, or . after trial to conform to the proof"); see also Certain Underwriters at Lloyd's London v. Ashland, Inc. , 967 A.2d 166, 175 (D.C. 2009) ("we note that pleading requirements in arbitration proceedings are generally relaxed"). That discretion notwithstanding, the defendants still cannot demonstrate that the arbitrator's decision substantially prejudiced them such that the arbitration was fundamentally unfair. The amended counterclaims at issue were based on the same factual allegations present in the plaintiffs' original complaint. The defendants had long been on notice of these allegations. See Briere v. Greater Hartford Orthopedic Group, P.C. , 325 Conn. 198, 206-10, 157 A.3d 70 (2017) (reasserting relation back doctrine, by which pleadings may be amended if same operative facts control). Moreover, the arbitrator allowed mutual amendments to the parties' claims, expressly conditioned on closure of discovery. Accordingly, the defendants cannot demonstrate substantial prejudice resulting in fundamental unfairness. For those reasons, the arbitration proceedings culminated in a hearing that was not fundamentally unfair, during which both sides had an adequate opportunity to present their evidence and arguments. We therefore conclude that the court did not err in granting the plaintiffs' motion to confirm the arbitration award and denying the defendants' motion to vacate it for arbitral misconduct under 9 U.S.C. § 10 (a) (3). III Finally, the defendants claim that the court should have vacated the arbitration award pursuant to 9 U.S.C. § 10 (a) (4) because the arbitrator exceeded her authority. Specifically, the defendants argue that the arbitrator lacked the authority (1) to render an award against Imbruce individually, and (2) to apportion costs and impose attorney's fees. We disagree. A The defendants first contend that the arbitrator lacked the authority to enter an award against Imbruce individually. This argument is close to frivolous. In its memorandum of decision, the trial court found the following: "[I]n [their] original motion to stay this litigation in favor of arbitration the defendants, including Imbruce, asserted and represented to the court 'defendants are ready and willing to proceed with the arbitration of the plaintiffs' claims.' . In the demand for arbitration Imbruce is named as a claimant and in his amended demand he also includes himself as a claimant. At the time he made the [m]otion to [s]tay and asserted that he was willing to proceed with the arbitration of [the] plaintiffs' claims, he knew the plaintiffs were asserting claims against him individually based upon the filed complaint. At no time did he expressly or impliedly suggest that the arbitration should exclude claims against him individually. In fact, the filings express the opposite position. "While he voluntarily submitted his claims to arbitration and by his representations expressed that he was willing to arbitrate the plaintiffs' claims, he did not assert in any way lack of jurisdiction of the arbitrator to hear the plaintiffs' counterclaims against him personally, as he would have been required to do under the rules of the American Arbitration Association and, particularly, Rule 7c." We turn now to applicable legal standards. "[A] party cannot be required to submit to arbitration any dispute which he has not agreed so to submit. Yet, to be consistent with congressional policy in favor of settlement of disputes by the parties through the machinery of arbitration, the judicial inquiry . must be strictly confined to the question [of] whether the reluctant party did agree to arbitrate . or did agree to give the arbitrator power to make the award he made." United Steelworkers of America v. Warrior & Gulf Navigation Co. , 363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960). There are "five theories for binding nonsignatories to arbitration agreements: 1) incorporation by reference; 2) assumption; 3) agency; 4) veil-piercing/alter ego; and 5) estoppel." Thomson-CSF, S.A. v. American Arbitration Assn. , 64 F.3d 773, 776 (2d Cir. 1995). Although the plaintiffs claim that all five theories are implicated here, they focus their argument on the assumption and alter ego theories. Because we agree that Imbruce assumed the obligation to arbitrate, we do not consider the other theories. "In the absence of a signature, a party may be bound by an arbitration clause if its subsequent conduct indicates that it is assuming the obligation to arbitrate." Id., at 777, citing Gvozdenovic v. United Air Lines, Inc. , 933 F.2d 1100, 1105 (2d Cir.), cert. denied, 502 U.S. 910, 112 S.Ct. 305, 116 L.Ed.2d 248 (1991). Here, as the facts previously indicated, Imbruce's conduct belies his claim that he is not bound by the arbitration. The demand for arbitration included Imbruce as a named party, and he repeatedly represented himself both at the trial court and in the arbitration as involved in and bound by the arbitration. Despite being on notice that the plaintiffs were asserting claims against him, Imbruce did not argue that he was not a party until after the arbitrator rendered her award. Imbruce therefore assumed the obligation to arbitrate and is responsible for the award rendered against him. B The defendants next contend that the arbitrator exceeded her authority under the arbitration agreements by apportioning costs and imposing attorney's fees. Specifically, the defendants argue that the parties agreed only to arbitrate the partnership agreements, which were silent as to costs and fees, and that the plaintiffs made no claim for costs and fees under the release agreement. This also borders on the frivolous. The trial court found that both parties "asserted claims for fees and costs that they incurred." "If both parties sought attorney's fees . then both parties agreed pro tanto to submit that issue to arbitration, and the arbitrators had jurisdiction to consider that issue and to award them." U.S. Offshore, Inc. v. Seabulk Offshore, Ltd. , 753 F.Supp. 86, 92 (S.D.N.Y. 1990) ; see also Commercial Arbitration Rules of the American Arbitration Association Rule R-47 (d) ("[t]he award of the arbitrator(s) may include . an award of attorneys' fees if all parties have requested such an award or it is authorized by law or their arbitration agreement"). Moreover, once bound to arbitration, "[a] party seeking relief under [ § 10 (a) (4) ] bears a heavy burden. It is not enough . to show that the [arbitrator] committed an error-or even a serious error.... Because the parties bargained for the arbitrator's construction of their agreement, an arbitral decision even arguably construing or applying the contract must stand, regardless of a court's view of its (de)merits . Only if the arbitrator act[s] outside the scope of his contractually delegated authority . may a court overturn his determination.... So the sole question for [the appellate court] is whether the arbitrator (even arguably) interpreted the parties' contract, not whether he got its meaning right or wrong." (Citations omitted; internal quotation marks omitted.) Oxford Health Plans, LLC v. Sutter , U.S., 569 U.S. 564, 133 S.Ct. 2064, 2068, 186 L.Ed.2d 113 (2013). Under this standard, we do not disturb an arbitrator's interpretation of her authority over an unrestricted submission. Here, the submission contained no express restrictions as to these issues, and we note that the parties agreed to expand the scope of the arbitration beyond the original agreements. See footnote 5 of this opinion. Accordingly, the arbitrator's interpretation of the scope of the arbitration agreements, including whether she was empowered to award attorney's fees and costs, must stand. In conclusion, therefore, the court did not err in granting the plaintiffs' application to confirm the arbitration award and denying the defendants' application to vacate it. The defendants cannot demonstrate that the arbitrator's conduct amounted either to evident partiality, misconduct or an excess of authority. See 9 U.S.C. § 10 (a) (2012). Where none of these claimed statutory grounds for vacatur exists, the arbitration act requires a reviewing court to confirm the arbitration award. The court properly did so. The judgments are affirmed. In this opinion the other judges concurred. The defendants-appellants are: Gregory Imbruce; Giddings Investments, LLC; Giddings Genpar, LLC; Hunton Oil Genpar, LLC; ASYM Capital III, LLC; Glenrose Holdings, LLC, and ASYM Energy Investments, LLC. The defendants were the claimants in the underlying arbitration. For the sake of clarity, the parties will be identified by their respective posture in the trial court, and will be referred to collectively as the defendants. The plaintiffs-appellees are: Charles Henry III; Ahmed Ammar; John P. Vaile; John P. Otieno; Bradford Higgins; William Mahoney; Edward M. Conrads; William F. Conrads; SOSVentures, LLC; Giddings Oil & Gas, L.P.; Hunton Oil Partners, L.P.; and ASYM Energy Fund III, L.P. This appeal was taken from three consolidated cases: Henry v. Imbruce , Superior Court, judicial district of Stamford, Complex Litigation Docket, Docket Nos. X08-CV-12-6014987-S and X08-CV-12-5013927-S; and Starboard Resources, Inc. v. Henry , Superior Court, judicial district of Stamford, Complex Litigation Docket, Docket No. X08-CV-12-6015112-S. The plaintiffs filed their second amended complaint on July 31, 2012, and a third amended complaint by consent on June 6, 2013. These pleadings, however, are superseded for the purposes of this appeal by the plaintiffs' counterclaims as respondents in the arbitration. The Hunton, L.P., partnership agreement contains no arbitration clause. The ASYM, L.P., and Giddings, L.P., agreements contain the following language: "Any dispute, controversy or claim ('Dispute') arising out of, relating to or in connection with this Agreement, including any question regarding its existence, validity or termination, or regarding a breach hereof which cannot be resolved by good faith discussions among the Partners and/or Partnership within thirty (30) days (or such longer period as may be agreed by such Partners and/or Partnership) shall be referred by any Party to, and shall finally settled by, arbitration under and in accordance with the Commercial Arbitration Rules of the American Arbitration Association ('the Rules')." The mutual release agreement between one of the plaintiffs, SOSVentures, LLC, and Imbruce contained a similarly broad clause (with some restrictions for equitable relief under the release agreement but also allowing for the recovery of costs and fees). The parties later agreed to submit the Hunton claims to arbitration as well. "Section 1 of the [arbitration] act defines 'commerce' to include 'commerce among the several States .' 9 U.S.C. § 1. The United States Supreme Court has construed § 1 broadly. The court has explained that 'involving commerce' is the equivalent of 'affecting commerce,' and accordingly, the term 'signals an intent to exercise Congress' commerce power to the full.' . Allied-Bruce Terminix Cos. v. Dobson , 513 U.S. 265, 277, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995)." Hottle v. BDO Seidman, LLP , 74 Conn.App. 271, 276, 811 A.2d 745 (2002), aff'd, 268 Conn. 694, 846 A.2d 862 (2004). In this case, speculators in California, Connecticut, Illinois and Texas invested capital in Delaware companies (headquartered in Connecticut and Texas) that exploit mineral rights in Texas and Oklahoma. Concomitant with those statutory provisions, the United States Court of Appeals for the Second Circuit has acknowledged an additional ground for vacatur, the so-called "manifest disregard" standard. It is implicated where the award "was rendered in manifest disregard of the law," or where the award was rendered in manifest disregard of "the terms of the [parties' relevant] agreement[s]." (Internal quotation marks omitted.) Schwartz v. Merrill Lynch & Co. , 665 F.3d 444, 451-52 (2d Cir. 2011). Although the defendants made a claim of manifest disregard below, they make no such claim on appeal. See Votre v. Maisano-Votre , Superior Court, judicial district of Ansonia-Milford, Docket No. FA-12-4017418-S, 2015 WL 2473188, *9 (May 4, 2015) ("In summation, what appears to have occurred here is that the arbitrator . turned the arbitration hearing into a mediation event and used procedures implemented ad hoc to complete the proceeding.... The receipt and considerable reliance upon evidence not offered into the record is, as elsewhere, particularly troubling to the court. Consequently, the court believes that the motion to vacate should be granted under [General Statutes] § 52-418 [a] [3]."). Section 52-418 (a) (3) provides, in relevant part: "Upon the application of any party to an arbitration, the superior court . shall make an order vacating the award if it finds any of the following defects . if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced ." "[Section] 52-418 (a) (3) essentially tracks the language of the federal statute governing arbitral misconduct." O & G/O'Connell Joint Venture v. Chase Family Ltd. Partnership No. 3 , 203 Conn. 133, 150 n.12, 523 A.2d 1271 (1987). See footnote 8 of this opinion. We note also that CUTPA expressly authorizes attorney's fees. See General Statutes § 42-110g (d) ("[i]n any action brought by a person under this section, the court may award . costs and reasonable attorneys' fees .").

12497375

DEUTSCHE BANK NATIONAL TRUST COMPANY ON BEHALF OF The CERTIFICATE HOLDERS OF MORGAN STANLEY ABS CAPITAL I TRUST 2007-HE3 v. Ophni DAVIS, et al.

Deutsche Bank Nat'l Trust Co. ex rel. Certificate Holders of Morgan Stanley ABS Capital I Trust 2007-HE3 v. Davis

2018-06-19

AC 38969

797

797

186 A.3d 797

186

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

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

Fastcase

DEUTSCHE BANK NATIONAL TRUST COMPANY ON BEHALF OF The CERTIFICATE HOLDERS OF MORGAN STANLEY ABS CAPITAL I TRUST 2007-HE3 v. Ophni DAVIS, et al.

DEUTSCHE BANK NATIONAL TRUST COMPANY ON BEHALF OF The CERTIFICATE HOLDERS OF MORGAN STANLEY ABS CAPITAL I TRUST 2007-HE3 v. Ophni DAVIS, et al. AC 38969 Appellate Court of Connecticut. Argued May 31, 2018 Officially released June 19, 2018

45

277

Per Curiam. The judgment is affirmed.

12491511

IN RE HENRRY P. B.-P.

In re Henrry P. B.-P.

2017-12-14

SC 19907

928

943

173 A.3d 928

173

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, McDonald, Robinson and Espinosa, Js.

IN RE HENRRY P. B.-P.

IN RE HENRRY P. B.-P. SC 19907 Supreme Court of Connecticut. Argued September 20, 2017 Officially released December 14, 2017 Enelsa Diaz, with whom were Giovanna Shay, and, on the brief, Charles D. Ray and Brittany A. Killian, Hartford, for the appellants (petitioner et al.) Edwin D. Colon and Jay E. Sicklick filed a brief for the Center for Children's Advocacy, Inc., et al., as amici curiae. James Worthington and Kevin P. Broughel, New York, filed a brief for Kids in Need of Defense as amicus curiae. Rogers, C.J., and Palmer, Eveleigh, McDonald, Robinson and Espinosa, 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. December 14, 2017, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes. The listing of justices reflects their seniority status on this court as of the date of oral argument.

8888

54792

ROBINSON, J. In this certified appeal, we consider whether the Probate Court retains the statutory authority to make findings pursuant to General Statutes § 45a-608n (b) in connection with a petition for special immigrant juvenile status (juvenile status) under 8 U.S.C. § 1101 (a) (27) (J), when the minor child who is the subject of the petition reaches the age of eighteen years old during the pendency of the petition. The petitioner, Reyna P. A., and her son, Henrry P. B.-P., appeal, upon our grant of their petition for certification, from the judgment of the Appellate Court, which affirmed the judgments of the Superior Court for Juvenile Matters dismissing their appeals from the decisions of the Probate Court. In re Henrry P. B.-P., 171 Conn. App. 393, 415, 156 A.3d 673 (2017). We agree with their dispositive claim in this appeal, and conclude that the Probate Court did not lose its authority to make juvenile status findings pursuant to § 45a-608n (b) when Henrry turned eighteen years old during the pendency of the petition. Accordingly, we reverse the judgment of the Appellate Court. The record and the opinion of the Appellate Court set forth the relevant facts and procedural history. "[The petitioner] and her two . 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, [Henrry and his sister], 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] work full-time to support the needs of Henrry and his [sister].... "On March 1, 2016, approximately five weeks prior to Henrry's eighteenth birthday, [the petitioner], through counsel, initiated the underlying [action in the Probate Court]. 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] as] coguardian.... On that date, she also filed a petition for [juvenile status findings] 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." (Internal quotation marks omitted.) Id., at 396-97, 156 A.3d 673. " '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.... 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 [e]mergency [p]etition, visited with the child and wrote a letter to the court indicating both his support for the [emergency petition], and his availability for an evidentiary hearing . should the court choose to hold one.... " 'On April 1, 2016, the Probate Court . denied the emergency petition in a brief written order, indicating [as follows]: "The [e]mergency [p]etition for [f]indings 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 . jointly filed an appeal to the Superior Court . 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 [Superior] 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 [Superior] Court . dismissed the appeal from Probate Court on the record, without holding an evidentiary hearing, stating that the [Superior] Court lacked jurisdiction over the appeal, because Henrry was now eighteen years old.... [The petitioner] and Henrry filed [their first appeal] with [the Appellate Court] on June 2, 2016.... " 'On May 31, 2016 . 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] 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, [given] that he [was] eighteen, and then taking testimony on the substantive issues from all the interested parties. The matter was then taken under advisement .' "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 . 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 . 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 [filed a second appeal to the Appellate Court]." Id., at 398-401, 156 A.3d 673. The Appellate Court then consolidated the two appeals. Id., at 401, 156 A.3d 673. In considering whether the Probate Court had the authority to grant the relief sought by the petitioner and Henrry, the Appellate Court reviewed numerous provisions in "chapter 802h of the General Statutes, which pertains to protected persons, including minors or minor children." Id., at 403-404, 156 A.3d 673. The Appellate Court stated as follows: "In this case . on the date the petitioner filed the petitions she, pursuant to [General Statutes] § 45a-606, was Henrry's sole guardian because his father was and had been deceased before [Henrry] 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." Id., at 405, 156 A.3d 673. The Appellate Court further determined that the "plain language" of the statutes at issue, "particularly § 45a-608n, [does] 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." Id., at 414, 156 A.3d 673. Following two decisions from this court construing General Statutes § 46b-129 ; see In re Jose B., 303 Conn. 569, 34 A.3d 975 (2012) ; In re Jessica M., 303 Conn. 584, 35 A.3d 1072 (2012) ; along with one of its own decisions; see In re Pedro J.C., 154 Conn. App. 517, 105 A.3d 943 (2014) ; the Appellate Court then deemed itself "constrained to conclude" that the present case was rendered moot "after Henrry reached the age of majority [because] the Probate Court lacked statutory authority to appoint a coguardian for him and to make the juvenile status findings permitted by § 45a-608n." In re Henrry P. B.-P., supra, 171 Conn. App. at 410, 156 A.3d 673. Accordingly, over a dissent by Judge Lavine, the Appellate Court affirmed the Superior Court's judgments dismissing the probate appeals. Id., at 411-15, 156 A.3d 673. This certified appeal followed. See footnote 3 of this opinion. On appeal, the petitioner and Henrry claim, inter alia, that the Appellate Court improperly determined that it was bound by our decisions in In re Jose B., supra, 303 Conn. at 582, 34 A.3d 975, and In re Jessica M., supra, 303 Conn. at 588-89, 35 A.3d 1072, in concluding that the Probate Court lacked the authority to grant them the relief they sought after Henrry reached the age of majority. The petitioner and Henrry argue that those cases are distinguishable because they were not juvenile status cases but, rather, concerned whether the court had the statutory authority under § 46b-129 (a) and (j) to commit a person over the age of eighteen to the custody of the department. To this end, the petitioner and Henrry emphasize that In re Jose B. and In re Jessica M. predate the 2014 enactment of the § 45a-608n, the juvenile status findings statute, and that they do not seek Henrry's commitment to, or any services from, the department. We agree with the petitioner and Henrry, and conclude that the Probate Court did not lose its statutory authority to make juvenile status findings pursuant to § 45a-608n after Henrry reached the age of majority during the pendency of the proceedings. In considering whether the Probate Court had the statutory authority to make juvenile status findings pursuant to § 45a-608n after Henrry reached the age of majority during the pendency of the proceedings, we are mindful that the "Probate Court is a court of limited jurisdiction prescribed by statute, and it may exercise only such powers as are necessary to the performance of its duties. . As a court of limited jurisdiction, it may act only when the facts and circumstances exist upon which the legislature has conditioned its exercise of power.... Such a court is without jurisdiction to act unless it does so under the precise circumstances and in the manner particularly prescribed by the enabling legislation." (Citations omitted; internal quotation marks omitted.) Heussner v. Hayes, 289 Conn. 795, 802-803, 961 A.2d 365 (2008) ; see also In re Bachand, 306 Conn. 37, 59-61, 49 A.3d 166 (2012) (Probate Court's limited jurisdiction creates constraints over its authority, even with respect to matter over which Superior Court has concurrent jurisdiction). Thus, whether the Probate Court had jurisdiction to render the decree challenged by the commissioner presents a question of statutory interpretation. See In re Bachand, supra, at 42, 49 A.3d 166. Consequently, whether the Probate Court had the statutory authority to provide the relief requested presents a question of law over which our review is plenary. See, e.g., In re Jose B., supra, 303 Conn. at 580, 34 A.3d 975. "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). We begin with the language of § 45a-608n (b), which provides: "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 . Immigration Services for designation of the minor child as having special immigrant juvenile status under[ 8 U.S.C. § 1101 (a) (27) (J) ]. 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 sets 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." (Emphasis added.) As the Appellate Court observed, the text of § 45a-608n (b) seemingly applies only to persons under the age of eighteen, insofar as it speaks to various court actions, such as the removal or appointment of guardians, or termination of parental rights, with respect to the "minor child," a term specifically defined by General Statutes § 45a-604 (4) to mean "a person under the age of eighteen ." See In re Henrry P. B.-P., supra, 171 Conn. App. at 404, 156 A.3d 673 ; see also General Statutes § 45a-604 (5) ( " '[g]uardianship' means guardianship of the person of a minor"). The authority conferred by § 45a-608n (b) with respect to the juvenile status findings specifically also reasonably may be read to be limited to persons under eighteen years old, insofar as it expressly requires the court to make those findings upon the grant of the "petition to remove the parent or other person as guardian or appoint a guardian or coguardian"-thus plausibly suggesting, consistent with the Probate Court's reading of the statute, that such a grant is a prerequisite to the juvenile status findings. There is, however, another reading of the statute that is at least equally as reasonable; we, therefore, resort to extratextual sources to aid our construction of § 45a-608n (b). First, the petition for juvenile status findings may be filed "at any time during the pendency of a petition to remove a parent or other person as guardian" under General Statutes § 45a-609 or 45a-610, or during the pendency of a petition "to appoint a guardian or coguardian" under General Statutes § 45a-616. General Statutes § 45a-608n (b). The statute is similarly flexible with respect to the timing of the hearing on the juvenile status petition, insofar as it need not be held at the same time as the underlying petition. See General Statutes § 45a-608n (b) ( "such hearing may be held at the same time as the hearing on the underlying petition for removal or appointment" [emphasis added] ). Finally, the statute reasonably may be read merely to require the Probate Court to make the written findings with respect to juvenile status upon the grant of the underlying guardianship petitions, but not limit its authority to make such findings to cases involving such grants, insofar as there is no language expressly conditioning the Probate Court's authority to make juvenile status findings on the grant of the underlying petition. Indeed, reading § 45a-680n to add such restrictive language would run afoul of the well established maxim that, "[a]s a general matter, this court does not read language into a statute.... [W]e are bound to interpret legislative intent by referring to what the legislative text contains, not by what it might have contained." Citation omitted; internal quotation marks omitted.) State v. George J., 280 Conn. 551, 570, 910 A.2d 931 (2006), cert. denied, 549 U.S. 1326, 127 S.Ct. 1919, 167 L.Ed.2d 573 (2007). Adding such a restriction also would be inconsistent with General Statutes § 45a-605 (a), in which the legislature directs that the statutory scheme that includes § 45a-608n"be liberally construed in the best interests of any minor child affected by them, provided the requirements of such sections are otherwise satisfied." Finally, the express mention of 8 U.S.C. § 1101 (a) (27) (J), the federal juvenile status statute, in § 45a-608n (b) calls to mind the maxim that, "[i]n cases in which more than one [statutory provision] is involved, we presume that the legislature intended [those provisions] to be read together to create a harmonious body of law . and we construe the [provisions], if possible, to avoid conflict between them." (Internal quotation marks omitted.) Cardenas v. Mixcus, 264 Conn. 314, 326, 823 A.2d 321 (2003) ; see also id., at 322-23, 823 A.2d 321 ("[w]e presume that laws are enacted in view of existing relevant statutes . [and] we read each statute in a manner that will not thwart its intended purpose or lead to absurd results" [internal quotation marks omitted] ). Authorizing the Probate Court to make juvenile status findings with respect to a minor child who has turned eighteen years old during the pendency of the petition is entirely consistent with the overarching purpose of § 45a-608n (b), which is to facilitate our state courts' responsibilities with respect to juvenile status petitions brought to Immigration Services under 8 U.S.C. § 1101 (a) (27) (J), the federal statute that is expressly cited in the text of § 45a-608n (b). Given this statutory purpose, a review of the federal statutory scheme is instructive. "Congress created [juvenile status] to permit immigrant children who have been abused, neglected, or abandoned by one or both of their parents to apply for lawful permanent residence while remaining in the United States. See [ 8 U.S.C. § 1101 (a) (27) (J) (2012) ]; 8 C.F.R. § 204.11 (2009). '[C]hild' under the Federal statute is defined as an unmarried person under the age of twenty-one. 8 U.S.C. § 1101 (b) (1) [2012]. Before an immigrant child can apply for [juvenile status], she must receive the following predicate findings from a 'juvenile court': (1) she is dependent on the juvenile court; (2) her reunification with one or both parents is not viable due to abuse, neglect, or abandonment; and (3) it is not in her best interests to return to her country of origin. 8 U.S.C. § 1101 (a) (27) (J) (i) [2012]. Once these special findings are made, an application and supporting documents may be submitted to [Immigration Services]. An application for[juvenile status] must be submitted before the immigrant's twenty-first birthday. 8 C.F.R. § 204.11 [2009]." (Emphasis added; footnotes added and omitted.) Recinos v. Escobar, 473 Mass. 734, 734-35, 46 N.E.3d 60 (2016). "The [f]ederal statute requires a juvenile court to make special findings before an immigrant youth can apply for [juvenile status] and lawful permanent residence.... The [s]tate and [f]ederal proceedings are distinct from each other. The process for obtaining [juvenile status] is a unique hybrid procedure that directs the collaboration of state and federal systems.... Pursuant to 8 C.F.R. § 204.11, '[j]uvenile court' is defined as 'a court located in the United States having jurisdiction under [s]tate law to make judicial determinations about the custody and care of juveniles.' When determining which court qualifies as a juvenile court under the [f]ederal statute, it is the function of the [s]tate court and not the designation that is determinative." (Citations omitted; footnote omitted; internal quotation marks omitted.) Id., at 737-38, 46 N.E.3d 60 ; see H.S.P. v. J.K., 223 N.J. 196, 209-11, 121 A.3d 849 (2015) (reviewing federal juvenile status statutes); see also Marcelina M.-G. v. Israel S., 112 App.Div.3d 100, 106-109, 973 N.Y.S.2d 714 (2013). Significantly, although the federal implementing regulation, 8 C.F.R. § 204.11 (c), requires that the juvenile status "application must be submitted before the child's twenty-first birthday," federal law provides that "[t]he child will not'age-out' of [juvenile status] on account of turning twenty-one while his or her application is under consideration with [Immigration Services]." (Emphasis added.) Recinos v. Escobar, supra, 473 Mass. at 739, 46 N.E.3d 60, citing William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. No. 110-457, § 235 (d) (6), 122 Stat. 5044. Although the federal age cap for juvenile status, namely, twenty-one years old, is greater than our state's relevant operative statutory definition of a minor child, namely, a person younger than eighteen years old; see General Statutes § 45a-604 (4) ; the legislative history of § 45a-608n further counsels in favor of a broader reading of that statute with respect to those persons eligible to obtain the predicate state court findings necessary to render available the federal immigration benefits of juvenile status. The legislature enacted § 45a-608n in Number 14-104, § 8, of the 2014 Public Acts. Although floor debate about this provision was virtually nonexistent, our review of the testimony submitted to the Joint Standing Committee on the Judiciary in support of the bill ultimately enacted as § 45a-608n indicates that the legislature intended to address discrepancies in the state statutory scheme that were frustrating the availability of the federal immigration benefit. See, e.g., Butts v. Bysiewicz, 298 Conn. 665, 687, 5 A.3d 932 (2010) ("testimony before legislative committees may be considered in determining the particular problem or issue that the legislature sought to address by the legislation" [internal quotation marks omitted] ). For example, Attorney Edwin Colon testified, on behalf of the Center for Children's Advocacy, that the proposed "statutory changes will provide children with increased access to protection under existing federal law [by] expressly authorizing the court to make these findings ." Conn. Joint Standing Committee Hearings, Judiciary, Pt. 3, 2014 Sess., pp. 1221-22. Attorney Colon emphasized that the bill allowed children to file a motion seeking the necessary findings even after the issuance of a decree, and advised the legislature that it "should apply retroactively to any child who can still benefit from [juvenile status] federal protection." Id., p. 1222. Testifying in further support of the bill, Judge Paul Knierim, Probate Court Administrator, made clear his desire that the legislation be inclusive and "cautious." Id., pp. 904-907. Judge Knierim stated that "probate courts have been seeing [juvenile status] petitions under this statutory framework and the intent . would be to make it clear that Connecticut probate courts have legislative authorization when handling these types of children's matters to also make these findings." Id., p. 906. Similarly, Megan R. Naughton, an immigration attorney in private practice, described to the legislature the necessity of using "the appropriate language . in the special findings" from the Probate Court in a case in which she had to refile for juvenile status shortly before her client turned twenty-one years old. Id., p. 1223. In the absence of clear and unambiguous statutory language to the contrary, we decline to frustrate the purpose of § 45a-608n, namely, to facilitate access to the state court findings necessary as a predicate step toward federal juvenile status, and we conclude that the Probate Court was not divested of statutory authority to make those findings when Henrry turned eighteen years old during the pendency of the petition. We disagree with the Appellate Court's conclusion that our decisions in 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, dictate a contrary result. In In re Jose B., the minor child filed a petition with the trial court pursuant to § 46b-129 (a), "seeking to have himself adjudicated as neglected and as an uncared-for youth," along with an order of temporary custody and an emergency commitment to the custody of the department. Id., at 570-71, 34 A.3d 975. The trial court dismissed the petition as moot because "two days after he filed it, he reached his eighteenth birthday." Id., at 571, 34 A.3d 975. On appeal, we determined that In re Jose B. presented the question of "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)." Id., at 580, 34 A.3d 975. Reading together the relevant statutory provisions, namely, § 46b-129 (a), and the definitions of "[c]hild" or "[y]outh" in General Statutes (Rev. to 2009) § 46b-120 (1) and (2), and "neglected" or "uncared for" in General Statutes (Rev. to 2009) § 46b-120 (9) and (10), we concluded that "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 [2009] 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 [Rev. to 2009] § 46b-120 (1) (defining " '[c]hild' " differently for different circumstances). Accordingly . 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)...." (Footnote omitted.) In re Jose B., supra, 303 Conn. at 581-82, 34 A.3d 975. We further concluded 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." (Emphasis omitted.) Id., at 582, 34 A.3d 975. Similarly, in In re Jessica M., supra, 303 Conn. at 588, 35 A.3d 1072, the companion case to In re Jose B., this court rejected the petitioner's claim that "an adjudication of neglect pursuant to § 46b-129 (a) would enable her to seek . juvenile status from the federal government," meaning that, under the collateral consequences doctrine, "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)." The court emphasized 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. We agree with the petitioner and Henrry that In re Jose B. and In re Jessica M. are not controlling in the present appeal. We acknowledge that this court observed in In re Jose B. that the legislature can use a more expansive definition of the term "child" to broaden the court's statutory authority in certain areas; In re Jose B., supra, 303 Conn. at 581, 34 A.3d 975 ; which was a point that the Appellate Court found persuasive in the present case. See In re Henrry P. B.-P., supra, 171 Conn. App. at 412, 156 A.3d 673. Nevertheless, In re Jose B. and In re Jessica M. predate the enactment of § 45a-608n in 2014, with its specific grant of authority to make the findings factual incident to juvenile status and its express acknowledgment of the federal juvenile status scheme, which has age eligibility that extends beyond the age of eighteen years old that typically demarks the end of the court's authority over the guardianship of minors. Accordingly, the Appellate Court improperly deemed In re Jose B. and In re Jessica M. dispositive of the present case, insofar as the Probate Court's authority to make the juvenile status findings under § 45a-608n does not terminate on the minor's eighteenth birthday. The Appellate Court, therefore, improperly affirmed the judgments of the Superior Court dismissing the probate appeals. The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to reverse the judgments of the Superior Court and to remand the case to the Superior Court for further proceedings according to law. In this opinion the other justices concurred. General Statutes § 45a-608n (b) provides: "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) ]. 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 sets 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." Title 8 of the United States Code, § 1101 (a) (27), provides in relevant part as follows: "The term 'special immigrant' means . "(J) an immigrant who is present in the United States- "(i) who has been declared dependent on a juvenile court located in the United States or whom such a court has legally committed to, or placed under the custody of, an agency or department of a State, or an individual or entity appointed by a State or juvenile court located in the United States, and whose reunification with 1 or both of the immigrant's parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law; "(ii) for whom it has been determined in administrative or judicial proceedings that it would not be in the alien's best interest to be returned to the alien's or parent's previous country of nationality or country of last habitual residence; and "(iii) in whose case the Secretary of Homeland Security consents to the grant of special immigrant juvenile status, except that- "(I) no juvenile court has jurisdiction to determine the custody status or placement of an alien in the custody of the Secretary of Health and Human Services unless the Secretary of Health and Human Services specifically consents to such jurisdiction; and "(II) no natural parent or prior adoptive parent of any alien provided special immigrant status under this subparagraph shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this chapter...." We granted the petition for certification to appeal from the judgment of the Appellate Court, limited to the following issue: "Did the Appellate Court properly affirm the Superior Court's dismissal of the petitioners' appeals on April 22, 2016, and September 26, 2016, from the Probate Court orders?" In re Henrry P. B.-P., 325 Conn. 915, 159 A.3d 232 (2017). The Appellate Court clarified that the "consolidated appeal challenges first the interlocutory orders . and then the final orders . 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 [Superior] 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 [Superior] Court . and dismissed on November 1, 2016." (Internal quotation marks omitted.) In re Henrry P. B.-P., supra, 171 Conn. App. at 401-402, 156 A.3d 673. In particular, the Appellate Court observed as follows: "Pursuant to General Statutes § 45a-604 (4), 'minor' or 'minor child' means a person under the age of eighteen. Pursuant to . § 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." In re Henrry P. B.-P., supra, 171 Conn. App. at 404-405, 156 A.3d 673. With respect to coguardianship, the Appellate Court discussed General Statutes § 45a-616. See id., at 406-407, 156 A.3d 673. Section 45a-616 (b) provides in relevant part: "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...." Section 45a-616 (b) refers to the standards set forth in General Statutes § 45a-617, which provides: "When 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 Appellate Court also addressed the delay in scheduling proceedings pursuant to General Statutes § 45a-609, which requires that a hearing on an application to remove a parent or parents as guardian to be held within thirty days of the application, or receipt of the report of the department's investigation if ordered by the court pursuant to General Statutes § 45a-619. See In re Henrry P. B.-P., supra, 171 Conn. App. at 408-409, 156 A.3d 673. The Appellate Court determined that the Probate Court's referral of the matter to the commissioner for an investigation was mandatory under § 45a-619, based on the "classic neglect allegations" contained in the petition for the removal of Henrry's father as guardian. Id., at 408, 156 A.3d 673 ; see also id., at 409, 156 A.3d 673 ("[t]he authority of the Probate Court to waive the investigation and report thus is limited to cases not involving allegations of abuse or neglect"). Thus, the Appellate Court concluded that, "[i]n 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." Id. Judge Lavine issued a thoughtful and comprehensive opinion dissenting from the judgment of the Appellate Court, ultimately concluding that, "[b]y failing to hold an expedited hearing and timely rule on the petition seeking the removal of Henrry's guardian and appointment of a coguardian, and the petition for special immigrant juvenile findings, as it was permitted to do by statute and its own rules, the Probate Court itself frustrated and undermined the legislative intent of this state's special immigrant juvenile status findings statute . § 45a-608n, leading to the dismissal of the petitions. Moreover, by failing to hold an expedited hearing and to rule on the petitions prior to the day Henrry turned eighteen, I believe that the Probate Court abused its discretion and thus violated the rights of the petitioner . and Henrry to due process under the fourteenth amendment to the United States constitution and article first, § 10, of the constitution of Connecticut. By failing to invoke its equitable jurisdiction to expedite the proceedings, the Probate Court potentially has caused Henrry and the petitioner irreparable harm by exposing Henrry to possible deportation to his country of nationality where he has been subject to death threats." (Footnote omitted.) In re Henrry P. B.-P., supra, 171 Conn. App. at 415-16, 156 A.3d 673 ; see also id., at 428, 156 A.3d 673 (Lavine, J., dissenting) (suggesting use of Supreme Court "supervisory authority . to incorporate an order that cases with similar time constraints be addressed on an expedited basis so as to ensure possible compliance with § 45a-608n [b]" [citation omitted] ). The petitioner and Henrry also contend that, despite the fact that Henrry had reached the age of majority, the Superior Court retained jurisdiction to determine whether the Probate Court (1) had abused its discretion by not expediting its consideration of the petition, including waiving the investigation by the department pursuant to General Statutes § 45a-619, and (2) violated their rights to due process of law under the federal and state constitutions. They also ask us to utilize our supervisory power over the administration of justice to require the Probate Court and the Superior Court to handle petitions for juvenile status findings expeditiously. Given our conclusion with respect to the Probate Court's continuing authority under § 45a-608n, we need not consider the merits of these other claims. But see footnote 19 of this opinion. A discussion of the overlapping jurisdiction of the Probate Court and the Superior Court with respect to petitions for juvenile status findings pursuant to § 45a-608n is set forth in footnotes 14 and 15 of this opinion. We note that § 45a-608n (a) provides: "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." Section 45a-608n (c) confers authority on the Probate Court and governs the procedure for making juvenile status findings for petitions filed after "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...." We note that the history and genealogy of the federal juvenile status statute since its original enactment in 1990 are set forth in greater detail in Recinos v. Escobar, 473 Mass. 734, 735-39, 46 N.E.3d 60 (2016), and H.S.P. v. J.K., 223 N.J. 196, 208-209, 121 A.3d 849 (2015). "Because of the distinct expertise [s]tate courts possess in the area of child welfare and abuse, Congress has entrusted them with the responsibility to perform a best interest analysis and to make factual determinations about child welfare for purposes of [juvenile status] eligibility. . Therefore, the special findings a juvenile court makes should be limited to child welfare determinations. Immigration is exclusively a [f]ederal power. . It is not the juvenile court's role to engage in an immigration analysis or decision. . Special findings by a [s]tate court that determine that the child meets the eligibility requirements for [juvenile] status are not a final determination. . It is only the first step in the process to achieve [juvenile] status. . Once the child obtains the required special findings from a qualifying [s]tate court, the child may file an application with [Immigration Services]." (Citations omitted.) Recinos v. Escobar, supra, 473 Mass. at 738-39, 46 N.E.3d 60. We note that the legislature subsequently made minor technical changes to § 45a-608n (c) in 2015. See Public Acts 2015, No. 15-14, § 11. In response to a jurisdictional question from Representative Rosa Rebimbas, Judge Knierim testified that the Superior Court has, "like the [Probate Court, been] seeing petitions [like] this and as a court of general jurisdiction, my understanding is that they wouldn't need specific statutory authority to exercise that jurisdiction" because "[t]he framework is available under federal law and because of the broad jurisdiction of [the Superior Court] they are able to make [these] findings." Conn. Joint Standing Committee Hearings, supra, p. 907. We note that the petitioner and Henrry rely on In re Matthew F., 297 Conn. 673, 691-93, 4 A.3d 248 (2010), and argue further that § 45a-186, the probate appeal statute, conferred continuing jurisdiction upon the Superior Court, which was not divested solely because Henrry reached the age of majority, insofar as juvenile status relief remained available under § 45a-608n"at any time" during the pendency of the petition. Like Judge Lavine in his opinion dissenting from the judgment of the Appellate Court, we conclude that the Superior Court's authority tracked that of the Probate Court in this matter. See In re Henrry P. B.-P., supra, 171 Conn. App. at 423-24, 156 A.3d 673. Specifically, we conclude that the Probate's Court's statutory authority under § 45a-680n (b) extends to the Superior Court, deciding a probate appeal pursuant to § 45a-186, insofar as "[w]hen entertaining an appeal from an order or decree of a Probate Court, the Superior Court takes the place of and sits as the court of probate.... In ruling on a probate appeal, the Superior Court exercises the powers, not of a constitutional court of general or common law jurisdiction, but of a Probate Court." (Citations omitted.) Kerin v. Stangle, 209 Conn. 260, 264, 550 A.2d 1069 (1988) ; see also id. ("[t]he function of the Superior Court in appeals from a Probate Court is to take jurisdiction of the order or decree appealed from and to try that issue de novo"). We discussed the relevant statutes, noting: "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 ." In re Jose B., supra, 303 Conn. at 580-81, 34 A.3d 975. We note that, in In re Pedro J.C., supra, 154 Conn. App. at 543, 105 A.3d 943, the Appellate Court expedited proceedings on remand "to ensure that the requisite [juvenile status] findings can be made before . the petitioner's eighteenth birthday." In expediting proceedings on remand, the Appellate Court cited In re Jessica M., supra, 303 Conn. at 588, 35 A.3d 1072, for the proposition that, "[i]f 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."In re Pedro J.C., supra, at 543 n.22, 105 A.3d 943. We note that the petition underlying In re Pedro J.C. was brought prior to the enactment of § 45a-608n (b). Accordingly, we overrule In re Pedro J.C. to the extent it stands for the proposition that, even when a petition is brought prior to the minor's eighteenth birthday, the minor's eighteenth birthday divests the court of its authority to make juvenile status findings. We emphasize that our conclusion in this opinion is limited to cases brought when the subject of the petition is under the age of eighteen years, given that § 45a-608n (b) contemplates proceedings with respect to guardianship of a minor. We do not consider in this appeal whether our courts have the authority to afford relief to a petitioner who is eighteen years old or older at the time the petition is filed, notwithstanding the "gap" that this creates with respect to the federal benefit. Cf. Recinos v. Escobar, supra, 473 Mass. at 739-40, 46 N.E.3d 60 (equity jurisdiction of state probate and family court authorized it to consider juvenile status petition filed by twenty year old). We acknowledge, however, that this "gap" created by state laws that restrict access to the courts for the preliminary findings may pose a significant obstacle to the availability of federal juvenile status relief. See M.B. v. Quarantillo, 301 F.3d 109, 115-16 (3d Cir. 2002) (Immigration Service district director's denial of consent to apply for juvenile status was not arbitrary and capricious when based, inter alia, on New Jersey "juvenile court's [eighteen] year age limitation," because "the statute and the regulation implicitly require an alien applying for special immigrant juvenile status to be young enough to qualify for a dependency order under state law"); In re Guardianship of Guardado, Docket No. 68524, 2016 WL 606034, *1-2 (Nev. February 12, 2016) (affirming dismissal of guardianship petition filed when subject was twenty years old in order to obtain predicate findings for juvenile status petition). This "gap" presents a public policy concern with respect to our state courts' role in the hybrid juvenile status system, and we urge the General Assembly to consider legislation to clarify our state courts' authority to provide relief in this area. See H. Knoespel, "Special Immigrant Juvenile Status: A 'Juvenile' Here Is Not a 'Juvenile' There," 19 Wash. & Lee J. Civil Rts. & Soc. Just. 505, 532 (2013) ("[T]he federal government has done its part to ensure age-out protections are in place. Accordingly, it is important for states to take action and set age-out protections for the part of the [juvenile status] process that the state controls. Because the federal government cannot infringe state sovereignty, state legislatures must act independently to extend juvenile court jurisdiction over all [juvenile status] eligible youth."); D. Page, "Closing the Age-Out Gap? Assessing Maryland's Recent Expansion of Equity Court Jurisdiction for Potential Special Immigrant Juveniles," 22 Geo. J. on Poverty L. & Policy 33, 40 (2014) (noting that "dissonance between state and federal law has the perverse effect of limiting [juvenile status] in many states to children under the age of eighteen and effectively guts a meaningful form of immigration relief for youth between the ages of eighteen and twenty-one in those same states"); J. Pulitzer, "Fear and Failing in Family Court: Special Immigrant Juvenile Status and the State Court Problem," 21 Cardozo J.L. & Gender 201, 215 (2014) ("[M]many [juvenile status]-eligible youths over eighteen, but younger than twenty-one, are prevented from even applying to [Immigration Services] because they lack access to local, family and/or juvenile state court. Even if the state court can be accessed, the child always runs the risk of 'aging out' of the family court's jurisdiction, thereby precluding the child from applying for [juvenile status]." [Footnote omitted.] ); see also Recinos v. Escobar, supra, 473 Mass. at 740 n.8, 46 N.E.3d 60 (describing legislative responses, including Md. Code Ann., Fam. Law § 1-201, which expanded definition of "child" to "unmarried individual under the age of twenty-one" with respect to juvenile status petitions); H. Knoespel, supra, 522-32 (describing legislative responses in Florida, Texas, New York, and California and endorsing amendment to Texas statute specifically addressing persons between ages of eighteen and twenty-one seeking juvenile status). Consistent with the suggestion of Judge Lavine in his dissenting opinion; see In re Henrry P. B.-P., supra, 171 Conn. App. at 426-28, 156 A.3d 673 ; we note that the petitioner and Henrry ask us to exercise our supervisory authority over the administration of justice to direct probate courts to handle applications for juvenile status findings pursuant to § 45a-608n expeditiously. Although we agree that probate courts should handle such petitions as rapidly as possible, we believe that our conclusion with respect to the breadth of § 45a-608n eases time constraints beyond those imposed by the federal filing deadline under 8 C.F.R. § 204.11 (c). Accordingly, we leave the promulgation of specific rules intended to expedite the handling of juvenile status petitions to the office of Probate Court Administration in the first instance.

12510699

STATE of Connecticut v. Livorio SANCHEZ State of Connecticut v. Michael A. Fernandes State of Connecticut v. Francisco Rodriguez State of Connecticut v. Frank Slaughter State of Connecticut v. Michael Anthony Thigpen

State v. Sanchez

2019-06-11

AC 39193, (AC 39194), (AC 39196), (AC 39198), (AC 39199)

106

115

211 A.3d 106

211

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

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

Fastcase

STATE of Connecticut v. Livorio SANCHEZ

STATE of Connecticut v. Livorio SANCHEZ State of Connecticut v. Michael A. Fernandes State of Connecticut v. Francisco Rodriguez State of Connecticut v. Frank Slaughter State of Connecticut v. Michael Anthony Thigpen AC 39193, (AC 39194), (AC 39196), (AC 39198), (AC 39199) Appellate Court of Connecticut. Argued January 29, 2019 Officially released June 11, 2019 Daniel M. Erwin, assigned counsel, with whom were Temmy Ann Miller, assigned counsel, and, on the briefs, Nicholas Marolda, assigned counsel, for the appellants (defendants). Rocco A. Chiarenza, assistant state's attorney, with whom, on the briefs, were John C. Smriga, state's attorney, Marc R. Durso, senior assistant state's attorney, Nicholas J. Bove, Jr., senior assistant state's attorney, Michael A. DeJoseph, Jr., senior assistant state's attorney, Richard Palombo, Jr., former senior assistant state's attorney, and Yamini Menon, former special deputy assistant state's attorney, for the appellee (state). Keller, Bright and Bishop, Js.

5214

32048

BISHOP, J. These appeals all stem from the same legal root with factual differences not pertinent to the common legal issues they present. In each case, the defendant was convicted, following a plea of guilty, of, inter alia, sale of narcotics and/or possession of narcotics with the intent to sell by a person who is not drug-dependent, in violation of General Statutes (Rev. to 2013) § 21a-278 (b), and was sentenced to a term of incarceration that included the statutorily mandated minimum sentence of five years. In each instance, the court made no finding, nor did the defendant admit, that he was not drug-dependent. Each defendant subsequently filed a motion to correct an illegal sentence, alleging, in essence, that his sentence was illegal because, under Apprendi v. New Jersey , 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Alleyne v. United States , 570 U.S. 99, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013), the state was required to plead and prove his lack of drug dependency beyond a reasonable doubt given that it is a fact that would result in a mandatory minimum sentence that would expose the defendant to a higher maximum sentence. The trial court dismissed each motion for lack of subject matter jurisdiction, and the defendants appealed to this court. We conclude that, in light of our Supreme Court's recent decision in State v. Evans , 329 Conn. 770, 189 A.3d 1184 (2018), cert. denied, - U.S. -, 139 S. Ct. 1304, 203 L. Ed. 2d 425 (2019), the defendants' motions to correct no longer present colorable claims of an illegal sentence, and, accordingly, we affirm the trial court's dismissals of their motions. The records in these appeals reveal the following undisputed facts and procedural history. On March 12, 2013, the defendant Livorio Sanchez was convicted, following a plea of guilty, of sale of narcotics by a person who is not drug-dependent in violation of § 21a-278 (b). During the plea canvass, the prosecutor recited the facts underlying the alleged sale of heroin by Sanchez, but he made no representation as to whether Sanchez was drug-dependent. Similarly, during the questioning of Sanchez by the court, Arnold, J. , there was no discussion of drug dependency. Sanchez was subsequently sentenced on May 15, 2013, in accordance with an agreed upon disposition, to a term of incarceration of twelve years, execution suspended after eight years, followed by three years of probation. As a condition of his probation, the court ordered that he undergo "substance abuse evaluation and treatment including random urinalysis ." During the sentencing hearing, however, there was no discussion by the court, counsel, or Sanchez of the issue of drug dependency, nor did the court make explicit that the defendant's period of incarceration included a mandatory minimum period of five years pursuant to § 21a-278 (b). On April 12, 2012, the defendant Michael A. Fernandes was convicted, following a plea of guilty, of possession of narcotics with intent to sell by a person who is not drug-dependent in violation of § 21a-278 (b). During a colloquy with defense counsel prior to canvassing Fernandes, the court, Arnold, J. , noted, and defense counsel agreed, that the narcotics charge included a mandatory minimum sentence of five years of incarceration. During the canvass itself, although the court asked Fernandes if his counsel had advised him of the elements of the charge to which he was pleading guilty and the mandatory minimum penalties that he could receive, there was no mention by the court or counsel of drug dependency. Having waived the requirement of a presentence investigation report, Fernandes was immediately sentenced, pursuant to an agreed upon disposition, to a term of incarceration of ten years, execution suspended after five years, followed by a period of three years of probation. In reciting Fernandes' sentence, the court stated that the five year period of incarceration was the mandatory minimum sentence required by the statute. On February 27, 2012, the defendant Francisco Rodriguez was convicted, following a plea of guilty, of possession of narcotics with the intent to sell by a person who is not drug-dependent in violation of § 21a-278 (b). In response to a question from the court, Iannotti, J. , at the outset of its canvass, Rodriguez confirmed that his counsel had explained the maximum and mandatory minimum sentences to which his plea could expose him. Rodriguez also acknowledged during the canvass that by pleading guilty, he was giving up a number of enumerated rights, including the right to present defenses on his behalf at trial. Throughout the proceeding, there was no mention by the court, counsel, or Rodriguez of the issue of drug dependency. Having waived the requirement of a presentence investigation report, Rodriguez was immediately sentenced, pursuant to an agreed upon disposition, to a total effective term of incarceration of ten years, five of which reflected the mandatory minimum sentence under § 21a-278 (b). On September 9, 2013, the defendant Frank Slaughter was convicted, following a plea of guilty, of one count of sale of narcotics by a person who is not drug-dependent in violation of § 21a-278 (b) and two counts of possession of narcotics with the intent to sell by a person who is not drug-dependent also in violation of § 21a-278 (b). As part of a plea agreement, the other charges then pending against Slaughter were nolled by the state. At the beginning of the canvass, the state informed the court, Arnold, J. , that all three counts required a mandatory minimum sentence of five years, and, in response to questioning from the court, Slaughter initially stated that he was unaware that the agreed disposition included a mandatory minimum period of incarceration of five years. After a brief colloquy, however, Slaughter stated to the court that he understood that the sentence to be imposed would carry a minimum term of five years of incarceration. The record further reflects that before the court sentenced Slaughter, but after the court had stated the sentences to be imposed, Slaughter interjected as follows: "[A]s long as I've been coming in and out of the courthouse, I've been drug-dependent. I been drug-dependent. Now that I'm being charged with a drug-dependent case, how is that ." At this juncture, the court pointed out to Slaughter the number of charges initially confronting him and the fact that, if he was convicted after trial, he could face "close to eighty years' worth of exposure." The court continued to inform Slaughter that it would accept his guilty pleas only if they were made voluntarily, and it offered him the opportunity either to withdraw his pleas or to proceed with the sentencing. Slaughter responded, "[p]roceed." After confirming Slaughter's response, the court found that his guilty pleas were knowingly and voluntarily made and found him guilty as to all three counts. Because Slaughter waived the requirement of a presentence investigation report, the court proceeded immediately to sentence him, pursuant to an agreed upon disposition, to twelve years of incarceration for each count, execution suspended after seven years, five of which were mandatory, followed by a five year period of probation. As a condition of his probation, the court ordered that Slaughter undergo "substance abuse evaluation and treatment as deemed appropriate by the Department of Adult Probation." Other than Slaughter's statement that he was drug-dependent, there was no discussion by the court or counsel regarding the relationship between drug dependency and the criminal charges to which Slaughter pleaded guilty. Notably, when Slaughter raised the issue of his drug dependency, there was no discussion by the court or counsel as to whether such a claim could be a defense to any of the charges. On July 26, 2011, the defendant Michael Anthony Thigpen was convicted, following a plea of guilty, of sale of narcotics by a person who is not drug-dependent in violation of § 21a-278 (b). During the canvass, Thigpen confirmed with the court, Iannotti, J. , that his counsel had discussed with him the elements of the offenses to which he was pleading guilty, as well as the maximum and mandatory minimum sentences to which his guilty pleas would expose him. Thigpen also acknowledged that he was giving up his right to present defenses by pleading guilty. There was no discussion by the court, counsel, or Thigpen of the issue of drug dependency. On September 22, 2011, pursuant to an agreed upon disposition, Thigpen was sentenced to a term of incarceration of fifteen years, execution suspended after eight years, five of which were mandatory, to be followed by three years of probation. As conditions of his probation, the court ordered him to undergo substance abuse evaluation and treatment, as deemed necessary, and to attend "ten weekly [Narcotics Anonymous] meetings." When asked if he wanted to speak prior to being sentenced, Thigpen indicated to the court that he had a heart condition for which he required medication and treatment. At no time during this hearing was the issue of drug dependency raised or discussed by the court, counsel, or Thigpen. On August 22, 2014, the defendants filed the operative, amended motions to correct their allegedly illegal sentences pursuant to Practice Book § 43-22 ; although each was filed separately, the motions were identical in substance. The defendants claimed, inter alia, that their sentences were illegal because, under Apprendi v. New Jersey , supra, 530 U.S. at 466, 120 S.Ct. 2348, and Alleyne v. United States , supra, 570 U.S. at 99, 133 S.Ct. 2151, the sentences "exceed[ed] the relevant statutory maximum limits" and "the fact triggering the mandatory minimum sentence was not found by a proper fact finder or admitted by the defendant ." The state opposed the defendants' motions to correct, arguing, inter alia, that the court lacked subject matter jurisdiction because the motions attacked the validity of the defendants' guilty pleas rather than the sentences imposed. The court, E. Richards, J. , heard the motions together in one proceeding on January 29, 2015. On May 6, 2015, the court issued a memorandum of decision dismissing the motions to correct. Following its comprehensive review of the factual record and the relevant federal and Connecticut appellate decisional law, the court concluded that the defendants were, in essence, attacking their convictions and not their sentences and, for that reason, the court dismissed their motions for lack of subject matter jurisdiction. The defendants appealed to this court, arguing that the trial court misconstrued their motions to correct and that, properly construed, they alleged cognizable claims of an illegal sentence under Apprendi and Alleyne . On April 13, 2017, after the defendants had briefed their claims but before oral argument was scheduled, this court issued orders staying each appeal pending our Supreme Court's decisions in State v. Evans , supra, 329 Conn. at 770, 189 A.3d 1184, and State v. Allan , 329 Conn. 815, 190 A.3d 874 (2018), cert. denied, - U.S. -, 139 S. Ct. 1233, 203 L. Ed. 2d 247 (2019), the factual and procedural history of which closely mirror that underlying the present cases. Following the release of those decisions, the parties submitted supplemental briefs regarding the impact of the decisions on the present cases. Because Evans controls our disposition of the defendants' appeals, we begin with a discussion of that decision. The defendant in Evans was convicted, following a plea of guilty, of sale of narcotics by a person who is not drug-dependent in violation of § 21a-278 (b). State v. Evans , supra, 329 Conn. at 774, 189 A.3d 1184. The issue of drug dependency was not discussed by the court, counsel, or the defendant during the plea hearing. Id. After being sentenced to five years of imprisonment with five years of special parole, the defendant filed a motion to correct an illegal sentence. Id., at 775, 189 A.3d 1184. Just as in the present cases, the defendant in Evans claimed in his motion to correct that his sentence was illegal because, inter alia, under Alleyne and Apprendi , the sentence "exceed[ed] the relevant statutory limits" and "the fact triggering the mandatory minimum [sentence] was not found by a proper [fact finder] or admitted by the defendant ." (Internal quotation marks omitted.) Id. The trial court in Evans denied the defendant's motion to correct on the merits. Id., at 776, 189 A.3d 1184. The trial court began by "observing that, in State v. Ray , [290 Conn. 602, 623-26, 966 A.2d 148 (2009) ], [our Supreme Court] had concluded that Apprendi , which requires that the state charge, and prove to the fact finder beyond a reasonable doubt, any factor, other than a prior conviction, that increases the maximum penalty for a crime; see Apprendi v. New Jersey , supra, at 474-97, 120 S. Ct. 2348 ; did not apply to proof of drug dependency under § 21a-278 (b) because such proof constitutes an affirmative defense under that statute. The trial court then rejected the defendant's argument that Ray is no longer good law under Alleyne , which extended the rule set forth in Apprendi to facts that increase a statutory minimum sentence. See Alleyne v. United States , supra, [570 U.S. at] 103, 133 S.Ct. 2151. After rejecting the defendant's other challenges to his sentence, the trial court rendered judgment denying the motion to correct an illegal sentence." (Footnotes omitted.) State v. Evans , supra, 329 Conn. at 775-76, 189 A.3d 1184. On appeal to our Supreme Court, the defendant claimed, inter alia, that the court should overrule its interpretation of § 21a-278 (b) in Ray because the United States Supreme Court's subsequent decision in Alleyne v. United States , supra, 570 U.S. at 99, 133 S.Ct. 2151, requires the state to plead and prove beyond a reasonable doubt those facts, such as lack of drug dependency under § 21a-278 (b), that trigger mandatory minimum sentences. State v. Evans , supra, 329 Conn. at 791, 189 A.3d 1184. The state disagreed with the merits of the defendant's claims and further contended that the trial court should have dismissed the defendant's motion to correct for lack of subject matter jurisdiction. Id., at 776, 189 A.3d 1184. The court first addressed the state's challenge to the trial court's subject matter jurisdiction. The state argued, inter alia, that the defendant's motion to correct did not challenge the sentencing phase of the proceeding but, rather, the underlying conviction. Id., at 778, 189 A.3d 1184 ; see also State v. Lawrence , 281 Conn. 147, 158, 913 A.2d 428 (2007) ("[A] challenge to the legality of a sentence focuses not on what transpired during the trial or on the underlying conviction. In order for the court to have jurisdiction over a motion to correct an illegal sentence after the sentence has been executed, the sentencing proceeding, and not the trial leading to the conviction, must be the subject of the attack ." [Emphasis added.] ). The court disagreed. It began by noting that "[t]he state's jurisdictional challenge require[d] [it] to consider whether the defendant ha[d] raised a colorable claim within the scope of Practice Book § 43-22 that would, if the merits of the claim were reached and decided in the defendant's favor, require correction of a sentence.... A colorable claim is one that is superficially well founded but that may ultimately be deemed invalid.... [This] jurisdictional inquiry is guided by the plausibility that the defendant's claim is a challenge to his sentence, rather than its ultimate legal correctness." (Citations omitted; internal quotation marks omitted.) State v. Evans , supra, at 783-84, 189 A.3d 1184. Turning to the defendant's claims, the court in Evans noted that he was not asking it "to disturb his conviction under § 21a-278 (b), or otherwise claim[ing] that he was convicted under the wrong statute. Instead, the defendant [was seeking] resentencing, claiming that § 21a-278 (b) merely enhances the penalty available under [General Statutes (Rev. to 2013) ] § 21a-277 (a) when those statutes are read with the judicial gloss rendered necessary by the United States Supreme Court's decisions in Alleyne v. United States , supra, 570 U.S. at 99, 133 S.Ct. 2151, and Apprendi v. New Jersey , supra, 530 U.S. at 466, 120 S.Ct. 2348." (Footnote added.) Id., at 785, 189 A.3d 1184. "Given the otherwise identical statutory language of § 21a-277 (a) and 21a-278 (b), and the lack of any case law from [our Supreme Court] squarely rejecting the defendant's proffered interpretation of § 21a-278 (b) as merely providing a penalty enhancement in view of the [United States] Supreme Court's decision in Alleyne , which extended the protections of Apprendi to mandatory minimum sentences . [the court] conclude[d] that the defendant's interpretation of the narcotics statutory scheme [was] sufficiently plausible to render it colorable for the purpose of jurisdiction over his motion." (Citation omitted.) Id., at 786, 189 A.3d 1184. The court then turned to the defendant's claim that Ray should be overruled in light of Alleyne . Id., at 791, 189 A.3d 1184. The court began with a review of its decision in Ray interpreting § 21a-278 (b), which provides in relevant part that "[a]ny person who . sells . to another person any narcotic substance . and who is not, at the time of such action, a drug-dependent person, for a first offense shall be imprisoned not less than five years or more than twenty years ." General Statutes (Rev. to 2013) § 21a-278 (b). "[I]n Ray , [the court] declined the defendant's invitation to follow the analysis of Justice Berdon's dissent in [ State v. Hart , 221 Conn. 595, 615-22, 605 A.2d 1366 (1992) (Berdon, J. dissenting) ], which interpreted § 21a-278 (b) to be effectively . an aggravated form of § 21a-277 and concluded that, therefore, the 'not . a drug-dependent person' language in § 21a-278 (b) constitutes an aggravating factor that must be treated as an element and must be proven by the state." (Footnote omitted; internal quotation marks omitted.) State v. Evans , supra, 329 Conn. at 794-95, 189 A.3d 1184. "Applying the principles of [United States Supreme Court case law leading to Apprendi , including Patterson v. New York , 432 U.S. 197, 210, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977), the court in Ray further concluded] that placing the burden on the defendant to prove by a preponderance of the evidence a fact-drug dependency-that affects the severity of his punishment under § 21a-278 (b) is not unconstitutional." (Internal quotation marks omitted.) State v. Evans , supra, at 797, 189 A.3d 1184. With this review of Ray in mind, the court then turned to the defendant's claim that the United States Supreme Court's decision in Alleyne required it to overrule Ray . The defendant argued that "lack of drug dependency has the effect of increasing punishment 'above what is otherwise legally prescribed'; Alleyne v. United States , supra, [570 U.S. at] 108, 133 S.Ct. 2151 ; by the otherwise identical § 21a-277 (a) and, therefore, is an element of the offense to be proven by the state. Accordingly, the defendant argue[d] that the imposition of a mandatory minimum sentence was improper because the state did not prove, nor did the defendant admit, a lack of drug dependency." State v. Evans , supra, 329 Conn. at 798, 189 A.3d 1184. After reviewing Alleyne and related federal precedent, the court in Evans held that " State v. Ray , supra, 290 Conn. at 602, 966 A.2d 148, remains good law in the wake of Alleyne . Although Alleyne extended Apprendi to mandatory minimum sentences, Alleyne did not disturb those portions of Apprendi that reaffirmed Patterson v. New York , supra, 432 U.S. at 208-10, 97 S.Ct. 2319, which upheld the states' prerogative to utilize affirmative defenses to mitigate or eliminate criminal liability without running afoul of due process. Moreover, Alleyne did nothing to disturb long-standing Supreme Court precedent holding that whether a sentencing factor is, in essence, an element requiring the state to plead and prove it beyond a reasonable doubt, or an affirmative defense, the pleading and proof of which may be allocated to the defendant, is a matter of state law for 'authoritative' determination by state courts interpreting state statutes ." (Citation omitted; emphasis in original.) State v. Evans , supra, 329 Conn. at 802-803, 189 A.3d 1184. Accordingly, after rejecting the defendant's remaining claims, the court affirmed the trial court's denial of his motion to correct an illegal sentence. Id., at 815, 189 A.3d 1184. In sum, the court in Evans cemented its prior holding in Ray that drug dependency is an affirmative defense to § 21a-278 (b) that must be proven by the defendant, and, thus, it held that the sentencing of a defendant under § 21a-278 (b) without a finding or admission that the defendant is not drug-dependent does not implicate Alleyne , which deals with facts that must be proven by the state in order to trigger the mandatory minimum sentence for a crime. In the present cases, the defendants argued before the trial court that Ray is no longer good law in light of Alleyne and that not being drug-dependent therefore constitutes an element of § 21a-278 (b) that must be proven by the state. In view of Evans , it is clear that the defendants' claims of an illegal sentence would fail on the merits. The trial court in the present cases, however, did not dispose of the defendants' motions to correct on the merits; it dismissed them for lack of subject matter jurisdiction. The court's jurisdictional holding in Evans leads us to conclude that the trial court's dismissals in the cases at hand were improper because, at the time the trial court adjudicated the defendants' motions-pre- Evans -they presented colorable claims of an illegal sentence. See id., at 786-88, 189 A.3d 1184. In our view, however, the defendants' claims have since lost their hue. One of the primary reasons underlying the court's conclusion in Evans regarding jurisdiction was the fact that there had been a "lack of any case law from [our Supreme Court] squarely rejecting the defendant's proffered interpretation of § 21a-278 (b) as merely providing a penalty enhancement in view of the [United States] Supreme Court's decision in Alleyne ." Id., at 786, 189 A.3d 1184. Because our Supreme Court has now squarely rejected claims identical to those made by the defendants in the present cases, they no longer present colorable issues. Accordingly, although it was error, at the time, for the trial court to have dismissed the defendants' motions for lack of subject matter jurisdiction, in light of Evans , a trial court faced with such claims today would not have subject matter jurisdiction to decide them. We therefore affirm the trial court's dismissals, as it would serve no beneficial purpose to remand the cases with direction to dismiss the motions pursuant to Evans . The judgments are affirmed. In this opinion the other judges concurred. The defendants were convicted at different times between 2011 and 2013. During this period of time, the language of § 21a-278 remained unchanged. For the sake of convenience, all references to § 21a-278 in this opinion are to the 2013 revision of the statute. General Statutes (Rev. to 2013) § 21a-278 (b) provides: "Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any narcotic substance, hallucinogenic substance other than marijuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance, except as authorized in this chapter, and who is not, at the time of such action, a drug-dependent person, for a first offense shall be imprisoned not less than five years or more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years or more than twenty-five years. The execution of the mandatory minimum sentence imposed by the provisions of this subsection shall not be suspended, except the court may suspend the execution of such mandatory minimum sentence if at the time of the commission of the offense (1) such person was under the age of eighteen years, or (2) such person's mental capacity was significantly impaired, but not so impaired as to constitute a defense to prosecution." Fernandes also was convicted, on a plea of guilty, of interfering with a police officer in violation of General Statutes § 53a-167a. Rodriguez also was convicted, on a plea of guilty, of possession of narcotics with the intent to sell within 1500 feet of a school in violation of General Statutes (Rev. to 2011) § 21a-278a (b), carrying a pistol without a permit in violation of General Statutes § 29-35 (a), and criminal possession of a firearm by a felon in violation of General Statutes (Supp. 2012) § 53a-217. Rodriguez admitted, as well, to a violation of probation. In addition, upon his own admission, Thigpen was found to have violated his probation. He also was convicted, on a plea of guilty, of possession of narcotics in violation of General Statutes (Rev. to 2011) § 21a-279 (a). In light of the state of Connecticut's "Second Chance Society" initiatives and an attendant increased awareness of the central role drug dependency plays in criminal conduct, we believe that it would be appropriate for a trial court, while canvassing a defendant on a plea of guilty to a violation of § 21-278 (b), to ensure that the defendant understands that drug dependency is an affirmative defense to the charge and that a guilty plea constitutes a waiver of that defense, and to ensure that any such waiver is made knowingly and voluntarily. We make this suggestion in view of the fact that a guilty plea to this offense may, at least for the mandatory minimum period of incarceration, disqualify a defendant from participation in any intensive residential community based drug treatment program. Practice Book § 43-22 provides: "The judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner." In their motions to correct, the defendants also claimed that their sentences were illegal or imposed in an illegal manner because (1) the court relied on "an inaccurate understanding" of the relevant facts and legal principles, (2) the court was "unaware of the available sentencing range [due to an erroneous belief] that it was required to impose the mandatory minimum sentence," and (3) the sentences violated the rule of lenity and the requirement of article first, § 9, of the Connecticut constitution that no person shall be confined unless clearly warranted by law. In subsequently filed memoranda of law in support of the motions, the defendants additionally claimed that their sentences were illegal and imposed in an illegal manner because they violated the defendants' state and federal constitutional rights to equal protection of the laws and due process, in that there is no rational basis for punishing the same behavior with differing punishments under two separate statutes. The trial court determined that it lacked subject matter jurisdiction to decide these claims as well. The defendants do not challenge this determination on appeal, and we therefore do not address them further. In conjunction with these motions, the court also heard a similar motion to correct filed by Albert Nalewajk. Nalewajk appealed from the same memorandum of decision giving rise to the present appeals. On February 6, 2019, while Nalewajk's appeal was pending, his counsel filed a suggestion of death indicating that Nalewajk had died. Consequently, this court dismissed the appeal as moot. See State v. Nalewajk , 190 Conn. App. 462, 211 A.3d 122, 2019 WL 2416881 (2019). While these appeals were pending and before the date of oral argument, we sent a notice to counsel in each appeal informing them that, at oral argument, they should be prepared to address the following additional issues at oral argument: "Is any defendant's case moot because: (1) he has fully served the incarceration part of his sentence; or (2) he has fully served the mandatory minimum portion of his incarceration sentence?" On the basis of representations made by counsel at oral argument, we are not able to conclude that any of the appeals at hand are moot for either of the reasons set forth in our notice to counsel. On November 16, 2018, this court issued the following order in each of the appeals at hand: "It is hereby ordered that the stay of the appeal is lifted. The parties are also hereby ordered to file memoranda of no more than ten pages on or before December 17, 2018, addressing the impact of State v. Evans , [supra, 329 Conn. at 770, 189 A.3d 1184 ] and State v. Allan , [supra, 329 Conn. at 815, 190 A.3d 874 ], on the appeal." The state and the defendants timely complied with this order. Allan is the companion case to Evans and is factually and procedurally similar to it. See State v. Allan , supra, 329 Conn. at 816, 819, 190 A.3d 874. We therefore do not separately discuss Allan . The court in Evans had granted the defendant's motion to transfer his appeal from the Appellate Court to our Supreme Court, pursuant to General Statutes § 51-199 (c) and Practice Book § 65-2. State v. Evans , supra, 329 Conn. at 773 n.2, 189 A.3d 1184. For the reasons stated in footnote 1 of this opinion, we refer to the 2013 revision of § 21a-277, which provides: "Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance which is a hallucinogenic substance other than marijuana, or a narcotic substance, except as authorized in this chapter, for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than fifty thousand dollars or be both fined and imprisoned; and for a second offense shall be imprisoned not more than thirty years and may be fined not more than one hundred thousand dollars, or be both fined and imprisoned; and for each subsequent offense, shall be imprisoned not more than thirty years and may be fined not more than two hundred fifty thousand dollars, or be both fined and imprisoned." It is well accepted that "[w]hen a trial court reaches a correct outcome, but on grounds that cannot be sustained, [this court has] repeatedly upheld the court's judgment if there are other grounds to support it." (Internal quotation marks omitted.) Lederle v. Spivey , 151 Conn. App. 813, 818, 96 A.3d 1259, cert. denied, 314 Conn. 932, 102 A.3d 84 (2014).

12510742

Kacey LEWIS v. John ALVES et al.

Lewis v. Alves

2019-06-11

AC 39859

134

135

211 A.3d 134

211

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

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

Fastcase

Kacey LEWIS v. John ALVES et al.

Kacey LEWIS v. John ALVES et al. AC 39859 Appellate Court of Connecticut. Argued March 20, 2019 Officially released June 11, 2019 Kacey Lewis, self-represented, the appellant (plaintiff). Madeline A. Melchionne, assistant attorney general, with whom, on the brief, were George Jepsen, former attorney general, and Terrence M. O'Neill, assistant attorney general, for the appellees (defendants). Keller, Bright and Lavery, Js.

542

3458

PER CURIAM. The self-represented plaintiff, Kacey Lewis, appeals from the judgment of the trial court rendering summary judgment in favor of the defendants, who are current or former employees of the Connecticut Department of Correction at Cheshire Correctional Institution. Although the plaintiff in his five count complaint, which was brought pursuant to 42 U.S.C. § 1983, alleged several violations of his federal constitutional rights, on appeal, the plaintiff challenges the rendering of summary judgment only as to three alleged constitutional violations. In particular, the plaintiff claims that the court erroneously rendered summary judgment on the third count of his complaint as to his allegations that he was denied due process when (1) he was not permitted to call a witness at his disciplinary hearing and (2) he was assigned an unwanted advocate for that same hearing, who advocated against his interests. The plaintiff also claims that the court erred in rendering summary judgment as to the allegations in his fifth count that he was subjected to improper conditions of confinement. We affirm the judgment of the trial court. Initially, we set forth the legal principles and the standard of review that guide our resolution of this appeal. "The standards governing our review of a trial court's decision to grant a motion for summary judgment are well established. Practice Book [§ 17-49 ] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact . A material fact . [is] a fact which will make a difference in the result of the case . "Our review of the granting of a motion for summary judgment is plenary; accordingly, we must decide whether the trial court's conclusions were legally and logically correct and find support in the record." (Citations omitted; internal quotation marks omitted.) Lamar v. Brevetti , 173 Conn. App. 284, 288-89, 163 A.3d 627 (2017). After thoroughly reviewing the record, including the pleadings and the evidence submitted in support of and in opposition to the defendants' motion for summary judgment, we are convinced that the trial court correctly rendered summary judgment in favor of the defendants. There was no error. The judgment is affirmed. The named defendants are John Alves, Jeffrey Adgers, Sr., Antonio Lopes, Michael Fortin, Christopher Johnson, and Stacy Anderson.

12509277

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

Girolametti v. Michael Horton Assocs., Inc.

2019-06-25

SC 20032, (SC 20033), (SC 20036), (SC 20034), (SC 20035)

1223

1238

208 A.3d 1223

208

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

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

Fastcase

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

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

John GIROLAMETTI, Jr., et al. v. MICHAEL HORTON ASSOCIATES, INC. John Girolametti, Jr., et al. v. VP Buildings, Inc., et al. SC 20032, (SC 20033), (SC 20036), (SC 20034), (SC 20035) Supreme Court of Connecticut. Argued December 14, 2018 Officially released June 25, 2019 Brian J. Donnell, Hartford, with whom was Michael G. Caldwell, New Haven, for the appellants (plaintiffs in both cases). Anita C. Di Gioia, for the appellee in Docket No. SC 20032 (defendant Domenic Quaraglia Engineering, Inc.). Kevin M. Godbout, with whom, on the brief, was Alison H. Weinstein, New Haven, for the appellee in Docket No. SC 20033 (defendant Michael Horton Associates, Inc.). Sean R. Caruthers, with whom, on the brief, was Mark A. Milano, Branford, for the appellee in Docket No. SC 20034 (defendant Pat Munger Construction Company, Inc.). Curtis L. Brown, pro hac vice, with whom were Damian K. Gunningsmith and, on the brief, David S. Hardy, New Haven, for the appellee in Docket No. SC 20035 (defendant BlueScope Buildings North America, Inc., et al.). Deborah Etlinger, Hartford, with whom, on the brief, was Erin E. Canalia, for the appellee in Docket No. SC 20036 (defendant Lindade Construction, Inc.). Louis R. Pepe and Douglas M. Poulin, Hartford, filed a brief for Associated General Contractors of Connecticut as amicus curiae in Docket No. SC 20036. Robinson, C.J., and Palmer, McDonald, D'Auria and Ecker, Js.

7324

47477

D'AURIA, J. This certified appeal poses the question of whether and under what circumstances arbitration of a construction dispute between a property owner and a general contractor is res judicata as to the claims of subcontractors that did not participate in the arbitration. We agree with the Appellate Court that, in the absence of clear evidence of contrary intent by the parties, subcontractors are presumptively in privity with the general contractor on a construction project for purposes of res judicata. Accordingly, we affirm the judgment of the Appellate Court. I The relevant factual and procedural history is set forth in full in the decision of the Appellate Court. See Girolametti v. Michael Horton Associates, Inc. , 173 Conn. App. 630, 636-46, 164 A.3d 731 (2017). We briefly summarize that history as follows. These five consolidated appeals arise from disputes regarding the construction of an expansion to a Party Depot Store located in Danbury. The plaintiffs are the owners of the store, John Girolametti, Jr., and Cindy Girolametti. The defendant-appellees are five subcontractors on the project: Michael Horton Associates, Inc. (Horton), Domenic Quaraglia Engineering, Inc. (Quaraglia), Lindade Construction, Inc. (Lindade), BlueScope Buildings North America, Inc., and its employee, Steven Oakeson (BlueScope), and Pat Munger Construction Company, Inc. (Munger). Other original defendants, including the general contractor on the project, Rizzo Corporation (Rizzo), and other subcontractors, are not involved in the present appeals. In 2009, following the completion of the project and Danbury's issuance of a certificate of occupancy, the plaintiffs and Rizzo, pursuant to the contract between them (prime contract), entered arbitration to resolve various disputes regarding the project. Rizzo contended that the plaintiffs owed it further sums beyond the contract price for extra work performed and costs incurred in connection with the project. For their part, the plaintiffs sought to hold Rizzo liable for costs arising from, among other things, Rizzo's alleged failure to complete the project in a timely and proper manner. They claimed, for example, that Rizzo was responsible for multiple construction defects, had failed to provide a pre-engineered structure that complied with the intent of the original design, and had eliminated some important construction elements, jeopardizing the building's load carrying capacity. None of the other defendants was formally a party to the arbitration. In December, 2010, on the thirty-third day of what would ultimately be a thirty-five day hearing, the plaintiffs decided to no longer participate in the arbitration hearings, despite the urging of the arbitrator that they proceed to present their damages claims. The arbitrator subsequently issued an award ordering the plaintiffs to pay $ 508,597 to Rizzo for sums due. Rizzo's subsequent application to confirm the award was granted by the trial court. With respect to the plaintiffs' claims, the arbitrator found that the plaintiffs made a conscious and informed decision to no longer attend the hearing, and intentionally refused to present any evidence or expert witnesses to explain or justify any alleged damages. From this finding, the arbitrator concluded that either the plaintiffs did not incur any damages or were unable to prove their damages. The arbitrator also rejected the plaintiffs' claims that the second floor of the building remained unoccupied due to construction defects resulting in structural problems. The arbitrator instead concluded that the structure had passed inspection but that Danbury zoning regulations did not permit use of the second floor for any purpose. The present appeals arise from two lawsuits, one filed during the arbitration proceedings and one filed subsequently, in which the plaintiffs sought to recover from Rizzo and from its subcontractors. At the heart of many of the plaintiffs' claims in these underlying cases are allegations of negligence in connection with the design and construction of the steel joists used to support the second floor of the building. In the actions underlying these appeals, each of the defendants-who were involved in various capacities in the design and construction of the second floor supports-moved for summary judgment against the plaintiffs on the basis of, among other grounds, res judicata. That is, they contended that all of the claims raised in the underlying actions either had been or could have been raised and resolved during the arbitration. The trial court granted the motion filed by Rizzo but denied the motions for summary judgment filed by the other defendants. The court concluded that the plaintiffs' actions against the subcontractor defendants were not barred by res judicata because those defendants were not parties to the arbitration and were not in privity with Rizzo. Although it is unclear from the court's brief order, its conclusion that the defendants were not in privity with Rizzo appears to be founded on the premise that they could not have been compelled to participate in the arbitration process. The defendants brought an interlocutory appeal from the court's denial of their motions for summary judgment. See, e.g., Santorso v. Bristol Hospital , 308 Conn. 338, 346 n.7, 63 A.3d 940 (2013) (interlocutory appeal may be taken from denial of motion for summary judgment based on res judicata or collateral estoppel). The Appellate Court reversed the judgment of the trial court with respect to the res judicata issue as to all of the defendants. That court held that all of the defendants were in privity with Rizzo for purposes of res judicata and, therefore, that the plaintiffs' claims were barred because they could have been raised during the arbitration. See Girolametti v. Michael Horton Associates, Inc. , supra, 173 Conn. App. at 630, 164 A.3d 731. These certified appeals followed. Additional facts will be set forth as appropriate. II "[T]he applicability of res judicata . presents a question of law over which we employ plenary review." Weiss v. Weiss , 297 Conn. 446, 458, 998 A.2d 766 (2010). The Appellate Court accurately set forth the well established legal principles that govern 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.... 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." (Citation omitted; emphasis in original; internal quotation marks omitted.) Girolametti v. Michael Horton Associates, Inc. , supra, 173 Conn. App. at 650, 164 A.3d 731. With respect to the first element, a judgment rendered on the merits, the Appellate Court also noted, and the parties do not dispute, 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.) Id., at 649, 164 A.3d 731 ; accord Haynes v. Yale-New Haven Hospital , 243 Conn. 17, 21 n.5, 699 A.2d 964 (1997). The following principles govern the second element of res judicata, privity, the only element at issue in the present appeal: "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 [preclusion] 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. , 240 Conn. 799, 813-14, 695 A.2d 1010 (1997). "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 . 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.) Id., at 813, 695 A.2d 1010. Consistent with these principles, this court and other courts have found a variety of factors to be relevant to the privity question. These factors include the functional relationships between the parties, how closely their interests are aligned, whether they share the same legal rights, equitable considerations, the parties' reasonable expectations, and whether the policies and rationales that underlie res judicata-achieving finality and repose, promoting judicial economy, and preventing inconsistent judgments-would be served. See id., at 812-16, 695 A.2d 1010 ; see also Wayne County Hospital, Inc. v. Jakobson , 567 Fed. Appx. 314, 317 (6th Cir. 2014) (applying Kentucky law) ; DKN Holdings, LLC v. Faerber , 61 Cal. 4th 813, 826, 189 Cal. Rptr. 3d 809, 352 P.3d 378 (2015) ; Foster v. Plock , 394 P.3d 1119, 1126 (Colo. 2017). "[T]he crowning consideration, [however, is] that the interest of the party to be precluded must have been sufficiently represented in the prior action so that the application of [res judicata] is not inequitable." (Internal quotation marks omitted.) Wheeler v. Beachcroft, LLC , 320 Conn. 146, 167, 129 A.3d 677 (2016). III Applying these principles to the facts of the present case, the Appellate Court concluded that each of the defendants was in privity with Rizzo for purposes of res judicata. Girolametti v. Michael Horton Associates, Inc. , supra, 173 Conn. App. at 685-86, 164 A.3d 731. On appeal, the plaintiffs contend that the Appellate Court improperly applied a presumption-they label it a "safe harbor" rule-that a general contractor is in privity with all of its subcontractors on a construction project, and, therefore, if an owner and a general contractor choose to arbitrate the typical postconstruction disputes at the end of a project, then the outcome of that arbitration will be res judicata as to all subcontractors (assuming that the other elements of res judicata are satisfied). The plaintiffs argue that such a rule conflicts with established Connecticut precedent and also that, for various reasons, adopting such a rule would be both unwise and unfair. Because we agree that a general contractor is presumptively in privity with its subcontractors for purposes of res judicata, and because we perceive no reason to depart from that presumption under the specific facts and circumstances of the present case, we affirm the judgment of the Appellate Court. A 1 When applying the law to complex endeavors such as large-scale commercial construction, it often is desirable to adopt default rules, whether in the form of legal presumptions or standardized contracts. See E. Zamir, " The Inverted Hierarchy of Contract Interpretation and Supplementation," 97 Colum. L. Rev. 1710, 1755-56, 1768 (1997) ; T. Rakoff, Comment, " Social Structure, Legal Structure, and Default Rules: A Comment," 3 S. Cal. Interdisc. L.J. 19, 20, 25-26 (1993). These default rules help to reduce transaction costs, increase efficiencies, and resolve contractual ambiguities. E. Zamir, supra, 1755-56, 1756 n.175. At the same time, to the extent that public policy is not offended, parties retain the flexibility and freedom to contract around default rules to better serve their unique interests and needs. See id., 1769-70 ; see also I. Ayres & R. Gertner, " Filling Gaps in Incomplete Contracts: An Economic Theory of Default Rules," 99 Yale L.J. 87, 87-88 (1989). The amicus explains why adopting a default presumption of privity between general contractors and subcontractors is an efficient approach that mirrors the choices that reasonable parties would have made had they expressly considered the question at the outset. See I. Ayres & R. Gertner, supra, 99 Yale L.J. 89-92 (default rules should reflect either what these particular parties actually would have chosen or what arrangements most reasonable bargainers would prefer). The amicus notes that the standard form contracts used in the construction industry typically make the general contractor responsible for the work of all subcontractors. They explain that owners as well as contractors benefit from a presumption that all outstanding disputes involving work on a project can be resolved in the context of an owner-general contractor arbitration. Such a rule permits owners to bring and efficiently and finally resolve all of their claims arising from a project in a single forum, without having to pursue individual subcontractors and sub-subcontractors for satisfaction. The amicus also contends that the use and value of arbitration-particularly specialized construction industry arbitration-would be undermined if arbitration awards were not presumptively final as to all subcontractors. This is because owners who fail to prevail in arbitration could bring subsequent actions against various subcontractors in different forums, leading to the inefficient proliferation of proceedings and potentially inconsistent outcomes. A number of other jurisdictions have adopted the rule advocated by the amicus by applying at least a rebuttable presumption that subcontractors are in privity with a general contractor for purposes of res judicata. See, e.g., Columbia Steel Fabricators, Inc. v. Ahlstrom Recovery , 44 F.3d 800, 802 (9th Cir.) (holding that arbitration award for general contractor was res judicata as to subcontractor, which was in privity with general contractor), cert. denied, 516 U.S. 864, 116 S. Ct. 178, 133 L. Ed. 2d 117 (1995) ; United States ex rel. Paul v. Parsons, Brinkerhoff, Quade & Douglas, Inc. , 860 F. Supp. 370, 373 (S.D. Tex. 1994) (under Texas law, general contractor is in vicarious liability relationship with its subcontractor for purposes of res judicata), aff'd, 53 F.3d 1282 (5th Cir. 1995), cert. denied, 516 U.S. 1094, 116 S. Ct. 817, 133 L. Ed. 2d 762 (1996) ; Chestnut Hill Development Corp. v. Otis Elevator Co. , 739 F. Supp. 692, 698 (D. Mass. 1990) (subcontractor could bind developer with respect to issues litigated between developer and general contractor in prior arbitration); Associated Construction Co. v. Camp, Dresser & McKee, Inc. , 646 F. Supp. 1574, 1578 (D. Conn. 1986) (applying Connecticut law, subcontractors were deemed to be in privity with general contractor with respect to res judicata effects of prior arbitration between general contractor and city because [1] claims were asserted under project contract and [2] subcontractors had received payment for work from which claims arose); DKN Holdings, LLC v. Faerber , supra, 61 Cal. 4th at 828, 189 Cal.Rptr.3d 809, 352 P.3d 378 ("[d]erivative liability supporting preclusion has been found between . a general contractor and subcontractors" [citations omitted] ); E.W. Audet & Sons, Inc. v. Fireman's Fund Ins. Co. of Newark, New Jersey , 635 A.2d 1181, 1187 (R.I. 1994) (subcontractors and prime contractor were in privity for purposes of res judicata); cf. Kansas City, Missouri ex rel. Lafarge North America, Inc. v. Ace Pipe Cleaning, Inc. , 349 S.W.3d 399, 404-405 n.11 (Mo. App. 2011) (subcontractor is in direct privity of contract with general contractor and law adopts legal fiction that sub-subcontractor also is in privity of contract with general contractor, for purposes of recovery against statutory payment bond); CDJ Builders Corp. v. Hudson Group Construction Corp. , 67 App. Div. 3d 720, 722, 889 N.Y.S.2d 64 (2009) ("[a]s a general rule, a subcontractor is in privity with the general contractor on a construction project"). At least one Connecticut court also has applied this rule. See Tierney v. Renaud Morin Siding, Inc. , Superior Court, judicial district of Fairfield, Docket No. CV-08-5014179-S (October 29, 2008) (46 Conn. L. Rptr. 599, 2008 WL 4926758 ) (homeowners who had arbitrated dispute with general contractor were precluded from bringing subsequent claim against subcontractor, who was deemed to be in contractual privity with general contractor). Although this rule primarily has been justified on the theory that subcontractors are in privity of contract with a general contractor, some commentators and other legal authorities also have reasoned that the parties share legal rights because general contractors are vicariously or derivatively liable for the work of their subcontractors. See 2 Restatement (Second), Judgments § 51, comment (a), pp. 48-49 (1982) (With respect to preclusion, "[m]any relationships between persons result in one of them being vicariously liable for the conduct of another, the primary obligor. Among these relationships are that of . principal contractor and sub-contractor to the extent the former is responsible for the conduct of the latter ."); C. Ingwalson et al., "Arbitration and Nonsignatories: Bound or Not Bound?," 6 J. Am. C. Constr. Laws., No. 1 January, 2012, p. 3 (discussing various contract and noncontract theories according to which nonsignatories may be bound to arbitration agreements). Adopting this default rule, but allowing parties to contract around it if they so choose, creates a system, both efficient and fair, for resolving complex construction disputes of this sort. Absent this sort of clear default rule, a property owner who fails to prevail in arbitration against a general contractor often will be able to relitigate its claims by simply recharacterizing what are essentially contract claims as violations of a subcontractor's allegedly independent, noncontractual duties. Such fact intensive claims will be difficult for courts to resolve on summary judgment, largely defeating the purpose and benefits of the unrestricted arbitration of disputes. 2 The plaintiffs offer several arguments as to why the Appellate Court should not have adopted a default presumption that general contractors and subcontractors are in privity for purposes of res judicata with respect to a postconstruction arbitration in which the subcontractors did not participate. Their primary arguments are that (1) adoption of such a rule would be unfair, (2) any rule that grounds res judicata exclusively in contractual privity and fails to take into account other aspects of the functional relationship between the parties is inconsistent with this court's precedent, and (3) a presumption of privity is inconsistent with the realities of the construction industry. We consider each argument in turn. The plaintiffs first argue that it would be unfair to adopt a presumption that a general contractor is in privity with all of its subcontractors on a project for purposes of applying res judicata rules in this context. The plaintiffs contend that adopting such a default rule would be unjust because many of the potential sources of dispute between a property owner and a subcontractor either (1) cannot be raised and resolved in an arbitration, participation in which is limited to the owner and the general contractor, or (2) will not be apparent and addressable at the time that the normal postconstruction disputes are arbitrated in the immediate aftermath of a project's completion. The plaintiffs offer, by way of example, claims involving extended warranties, latent defects, defects fraudulently concealed, and violations of professional and statutory obligations. The plaintiffs have not provided any legal authority, however, for their assertion that subcontractors typically owe the property owner any independent statutory, professional, or common-law duties that (1) would provide the basis for a direct action against the subcontractor and (2) cannot be raised in the arbitration between the owner and the general contractor. When pressed at oral argument before this court, the plaintiffs' counsel ultimately conceded that an arbitrator would not be barred from entertaining any such claims and holding a general contractor responsible for any such breach, regardless of whether the subcontractors themselves could be compelled to participate in the arbitration. Counsel speculated that, in practice, most arbitrators would be reluctant to pursue such tangentially related matters. The record is devoid of any indication, however, that the plaintiffs in the present case sought and were denied permission to raise claims of that sort in their arbitration with Rizzo. To the contrary, the arbitrator indicated that he would have preferred to be able to focus on the "forest" and address "the entire [p]roject as a whole" but was prevented from doing so by "the personal and juvenile manner" in which the plaintiffs and Rizzo approached the arbitration. We recognize, of course, that a property owner cannot possibly raise in arbitration claims that have not yet arisen, such as latent defects, refusal to honor an extended warranty or ongoing service commitment, and the like. But for that very reason, such claims would fail to satisfy the third element of res judicata, which is that there must have been an adequate opportunity to litigate the matter fully. Accordingly, an owner would not be barred from raising claims of this sort in a subsequent action, regardless of the existence of privity. In the present case, we do not understand the plaintiffs to allege that any failure of design or workmanship manifested subsequent to the arbitration. Rather, their primary claim is that, in early November, 2010, prior to the conclusion of the arbitration, Rizzo and certain of the defendants became aware of alleged defects in the project design but conspired to fraudulently conceal those defects from the plaintiffs so that they could not be raised in the arbitration. The Appellate Court concluded that any claim arising from that alleged fraud is now barred by General Statutes § 52-420 (b), which provides that a party seeking to vacate an arbitration award on grounds of corruption, fraud, or undue means must do so within a thirty day limitation period. See Girolametti v. Michael Horton Associates, Inc. , supra, 173 Conn. App. at 653, 164 A.3d 731 ; see also Wu v. Chang , 264 Conn. 307, 312, 823 A.2d 1197 (2003) (after thirty day limitation period prescribed by § 52-420 [b], court loses jurisdiction to entertain claim that arbitration award was obtained by fraud). Because we declined to certify the question of whether the Appellate Court properly applied § 52-420 (b) under the facts of the present case, that question is not before us, and we express no opinion as to whether the fraud exception to res judicata; see Weiss v. Weiss , supra, 297 Conn. at 472, 998 A.2d 766 ; applies in the arbitration context. We emphasize in this respect that the presumption of privity is merely a default rule. If, as the plaintiffs contend, some property owners are reluctant to agree to arbitrate their disputes with general contractors for fear that they will be barred subsequently from litigating related disputes with their subcontractors, nothing precludes the parties to a construction project from negotiating a contract that carves out certain issues or certain third parties from the scope of arbitration. The plaintiffs next argue that the Appellate Court improperly ignored controlling authority by concluding, solely on the basis of contractual relationships, that the defendants were in privity with Rizzo. Specifically, the plaintiffs contend that our decision in Wheeler v. Beachcroft, LLC , supra, 320 Conn. at 146, 129 A.3d 677, modified the transactional test that governs the privity analysis for purposes of res judicata and that, under Wheeler , there can be no privity when the claims at issue are factually distinct from those raised in the prior litigation or arbitration. The plaintiffs' reliance on Wheeler is misplaced. As we explained in Wheeler , the question of whether the element of res judicata requiring that the prior adjudication involves the same underlying claim is distinct from the privity element. Id., at 156-57, 129 A.3d 677. It is true that, under the unique facts and procedural history of Wheeler , there was substantial overlap between the privity analysis and the "same claim" element. Id., at 165 n.20, 129 A.3d 677. Wheeler was a real property case, however, in which the plaintiffs held lots distinct from those of the parties with whom they were allegedly in privity. We emphasized that the parties did not share any common ownership interests with respect to each other's lots; there were no common chains of title, no mutual or successive prescriptive easement rights, and there was no privity of estate. Id., at 169-70, 129 A.3d 677. Accordingly, the only way that the plaintiffs could have been in privity with prior litigants with respect to the claimed prescriptive rights was if their use of the disputed common lawn was so factually similar as to give rise to an identical legal right. Id., at 158, 166-68, 129 A.3d 677. Thus, although commonality of use might, under different factual circumstances, have been sufficient to establish privity, we never suggested in Wheeler that factual commonality would have been necessary if, say, the parties had been in privity by virtue of contract or shared or successive ownership. The present case, by contrast, is a contract matter in which a contractual theory of privity is alleged. Insofar as there is contractual privity, the question of factual commonality is simply irrelevant to the privity analysis. Finally, the plaintiffs contend that adopting a presumption of privity would be unwise because construction projects, contracts, and relationships are complicated; subcontractors may have duties to and agreements with owners that are independent of and distinct from the duties that run through the general contractors. The plaintiffs warn that any preclusion rule that fails to account for this reality will sound the death knell of construction arbitration; property owners will be loath to agree to arbitration with their general contractors if doing so risks abandoning whatever independent rights and claims they may have against the subcontractors. We doubt that a presumption of privity would create a disincentive for property owners to participate in arbitration. As the amicus explains, it is as much to the benefit of owners as it is to subcontractors to be able to expeditiously resolve all disputes arising from a construction project in a single forum. Moreover, the fact that other jurisdictions apply such a rule, and presumably have not encountered the negative experiences invoked by the plaintiffs, reassures us that to do so would not be unwise. We also are skeptical of the plaintiffs' contention that the rule that the Appellate Court applied is ill suited for the complexities of many present day construction projects, which tend to feature multiple and divergent lines of authority running between a project owner and various contractors and subcontractors. We observe that the plaintiffs and Rizzo arbitrated their dispute pursuant to the construction industry arbitration rules of the American Arbitration Association, and that they selected as their arbitrator Arthur G. Folster, a general contractor and registered professional engineer with more than forty years of experience in contract administration and the design and construction of major building projects worth as much as $ 500 million. Folster had been trained as a construction industry arbitrator and had arbitrated a wide range of project disputes. The award of this experienced construction arbitrator suggests that, although this particular project was indeed characterized by multiple, convoluted lines of authority and "complicate[d]" legal relationships, the type of arrangement that the plaintiffs orchestrated here is neither normal nor desirable. Rather, the arbitrator concluded that the administration of the prime contract was "unique," and that the administration and coordination of the project were performed in a "flawed manner ." Accordingly, the fact that a presumption of privity might not dovetail with the realities of this particular project does not count as a general strike against a default presumption of privity. For these reasons, we conclude that the Appellate Court correctly determined that when a property owner and a general contractor enter into binding, unrestricted arbitration to resolve disputes arising from a construction project, subcontractors are presumptively in privity with the general contractor with respect to the preclusive effects of the arbitration on subsequent litigation arising from the project. B Having concluded that the Appellate Court properly adopted a rebuttable presumption that general contractors and subcontractors are in privity for purposes of res judicata, we now consider whether the record supports the plaintiffs' contention that the presumption should not apply in the present case because the parties did not intend to structure their legal relationships in such a manner. We conclude, to the contrary, that the record indicates that the plaintiffs anticipated, or reasonably should have anticipated, that the arbitration between themselves and Rizzo would be the proper forum for addressing any claims that existed against the defendants at that time. 1 The clearest evidence of the parties' intent in this regard is the prime contract. The plaintiffs chose to use a standard form owner-contractor construction contract published by the American Institute of Architects, and so presumably intended that their agreement would be governed by industry norms. The prime contract includes the following relevant terms: (1) "Nothing contained in the Contract Documents shall create any contractual relationship between the Owner or the Architect and any Subcontractor or Sub-subcontractor"; (2) "[t]he Contractor . shall be solely responsible for all construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under the Contract"; (3) "[t]he Work comprises the completed construction required by the Contract Documents and includes all labor necessary to produce such construction"; (4) "[t]he Contractor shall be responsible to the Owner for the acts and omissions of his employees, Subcontractors and their agents and employees, and other persons performing any of the Work under a contract with the Contractor"; and (5) "[u]nless otherwise provided in the Contract Documents, the Contractor shall provide and pay for all labor . and other facilities and services necessary for the proper execution and completion of the Work ." Accordingly, although other provisions of the prime contract reserve to the owner the right to perform work on the project with his own forces and to award separate contracts to other contractors in connection with portions of the project, absent such arrangements, the contract clearly provides that the general contractor will be responsible for all of the subcontractors' work on the project and will be answerable to the owner therefor. Indeed, the prime contract requires the contractor to formalize these so-called "flow down" obligations with each subcontractor. Another provision provides: "By an appropriate agreement, written where legally required for validity, the Contractor shall require each Subcontractor, to the extent of the Work to be performed by the Subcontractor, to be bound to the Contractor by the terms of the Contract Documents, and to assume toward the Contractor all the obligations and responsibilities which the Contractor, by these Documents, assumes toward the Owner . Said agreement shall preserve and protect the rights of the Owner . under the Contract Documents with respect to the Work to be performed by the Subcontractor so that the subcontracting thereof will not prejudice such rights . Where appropriate, the Contractor shall require each Subcontractor to enter into similar agreements with his Sub-subcontractors." As noted in the opinion of the Appellate Court, although Rizzo's subcontract with Lindade includes the flow down provision required by the prime contract, the other defendants' subcontracts did not include such provisions. This fact might be relevant to assessing the defendants' expectations, but the question before us is whether the plaintiffs , in view of the provisions of the prime contract, reasonably could have expected that any claims that they had against Rizzo's subcontractors could have been raised against Rizzo in the arbitration. The answer to that question is unequivocally yes. The arbitration provision contained in the prime contract confirms this conclusion. "When the arbitration agreement is broad . and there are no other limits on the scope of the arbitration, courts have applied res judicata based on a broad, transactional view of the arbitrated claim." G. Shell, " Res Judicata and Collateral Estoppel Effects of Commercial Arbitration," 35 UCLA L. Rev. 623, 643 (1988). In the present case, the prime contract includes a standard construction industry arbitration clause that allows the unrestricted submission of all claims and disputes to the arbitrator, with the exception of claims relating to the plaintiffs' project architect. In addition, the arbitration provision envisions and permits the joinder or other participation of third parties who are "substantially involved in a common question of fact or law, whose presence is required if complete relief is to be accorded in the arbitration." That provision further undercuts the plaintiffs' argument that they could not have sought relief in the arbitration with respect to claims arising from the work of Rizzo's subcontractors. See C. Ingwalson et al., supra, 6 J. Am. C. Constr. Laws., no. 1, p. 3 ("[w]hen a contract providing for arbitration refers to the role to be played by nonsignatories, or when a pleading in a dispute between signatories refers to conduct of nonsignatories . there is an increased likelihood that nonsignatories can be bound by, or claim rights pursuant to, an arbitration clause"). We also think that the plaintiffs' conduct throughout the arbitration process further evidences an expectation that Rizzo could be held accountable for the conduct of its subcontractors, consistent with a finding of privity. See footnote 9 of this opinion. In their prehearing brief to the arbitrator, the plaintiffs contended that "[t]he structural issues on the project for the [p]re-[e]ngineered [b]uilding are Rizzo's and [Horton's] responsibility." During discovery, the plaintiffs requested that Rizzo provide all documents relating to its communications and agreements with its subcontractors. The plaintiffs then issued subpoenas and document requests to Quaraglia, Munger, Oakeson, Lindade, and Horton, among other subcontractors. Although most of the defendants ultimately were not called to testify, a representative of Horton, Douglas H. McCloskey, was called and testified at length over the course of several days of the arbitration hearing. Further, as the Appellate Court emphasized, during the arbitration, the plaintiffs adduced evidence of the alleged failure of several of the defendants to meet their obligations on the project. See Girolametti v. Michael Horton Associates, Inc. , supra, 173 Conn. App. at 672, 164 A.3d 731 (Quaraglia); id., at 680, 164 A.3d 731 (Munger); id., at 684, 164 A.3d 731 (BlueScope). In addition, while the arbitration was pending, the plaintiffs' structural engineer, Richard J. Marnicki, prepared a report reviewing the building's load bearing capacities. In preparing that report, Marnicki visited the offices of and requested engineering drawings and calculations from several of the defendants. It seems clear, then, that although the defendants never were formally made party to the arbitration, the plaintiffs viewed them as an integral part of the process, saw Rizzo as responsible for their conduct, and were not precluded from involving the defendants in the arbitration in various capacities. 2 In arguing for a contrary conclusion, the plaintiffs contend that the conclusion of the Appellate Court that Rizzo was in privity with all of its subcontractors is inconsistent with the arbitrator's factual findings. In this respect, the plaintiffs rely heavily on the following sentence in the arbitration award: "The [c]ontract, as drafted by [the project architect] and executed by [the plaintiffs], does not obligate [Rizzo] to perform or be responsible for all design and engineering aspects of the [p]roject." The plaintiffs interpret this finding to mean that, regardless of any default presumptions, Rizzo was not in privity with and could not be held responsible for the defendants' engineering work on the project. The defendants respond, and we agree, that, when read in context, the arbitrator's statement does not represent a finding that Rizzo and its subcontractors were not in privity with respect to engineering work on the project. The paragraph of the award in which the sentence appears begins by noting that the contractual arrangements governing the project were complicated by virtue of the fact that the plaintiffs chose to contract independently with Danbury Septic for site work, with Rieve Plumbing & Mechanical for mechanical design and construction, and with Tucker Electrical for electrical design work, and that those contractors reported directly and exclusively to the plaintiffs. That arrangement was consistent with the prime contract, which permitted the plaintiffs to hire separate contractors and subcontractors to perform portions of the project. Considered in that context, the most reasonable reading of the sentence at issue is that the arbitrator was simply noting that the plaintiffs permissibly outsourced and supervised the referenced site work, and plumbing and electrical work, and, therefore, that Rizzo was not responsible to the plaintiffs for the work of those subcontractors. Our interpretation is supported by the fact that site work represented one of the principal grounds for Rizzo's arbitration claims against the plaintiffs. To summarize, we find nothing in the record to rebut the presumption that the plaintiffs reasonably should have expected that any claims they had against Rizzo's subcontractors could have been raised in the context of the arbitration. Accordingly, we agree with the Appellate Court that the defendants and Rizzo were in privity for purposes of res judicata and, therefore, that the trial court improperly denied their motions for summary judgment on that basis. The judgment of the Appellate Court is affirmed. In this opinion the other justices concurred. For brevity, we use the term "subcontractors" to refer both to direct subcontractors of a general contractor and to sub-subcontractors who are hired by and/or answerable to direct subcontractors or other sub-subcontractors. For this reason, in the remainder of this opinion we refer to the present appellees-Horton, Quaraglia, Lindade, BlueScope, Oakeson, and Munger-collectively as the defendants. We granted certification, limited to the following question: "Did the Appellate Court properly reverse the trial court's denial of summary judgment based on the doctrine of res judicata when it determined privity existed between the defendant subcontractors and the general contractor after the general contractor had arbitrated issues relating to the construction project with the project owner[s]?" Girolametti v. Michael Horton Associates, Inc. , 327 Conn. 980, 175 A.3d 42 (2017) ; accord Girolametti v. Michael Horton Associates, Inc. , 327 Conn. 981, 175 A.3d 564 (2017) ; Girolametti v. Michael Horton Associates, Inc. , 327 Conn. 981, 982, 175 A.3d 42 (2017) ; Girolametti v. VP Buildings, Inc. , 327 Conn. 982, 186 A.3d 12 (2017) ; Girolametti v. VP Buildings, Inc. , 327 Conn. 983, 175 A.3d 45 (2017). We note that the plaintiffs sought certification as to, and have briefed, various other issues that are peripheral to the certified question, including whether and how claims of fraud, latent defect, and unripe professional, statutory, and warranty obligations influence the res judicata analysis in a case such as this. We address those issues only to the extent that they are encompassed within the certified question. We also granted permission to Associated General Contractors of Connecticut to file an amicus curiae brief. Although the question before us is not entirely one of contract law, the same contractual approach is suitable for application to noncontract matters. See I. Ayres & R. Gertner, "Filling Gaps in Incomplete Contracts: An Economic Theory of Default Rules," 99 Yale L.J. 87, 88 n.10, 129 (1989) ; T. Merrill & H. Smith, "Optimal Standardization in the Law of Property: The Numerus Clausus Principle," 110 Yale L.J. 1, 31 (2000). This court has recognized as much, albeit in a different context, noting that "most . construction work is often subcontracted . by a general contractor who oversees the entire project and is responsible [to the owner] for the final result." (Internal quotation marks omitted.) Meadows v. Higgins , 249 Conn. 155, 167, 733 A.2d 172 (1999). "A submission [of a dispute to arbitration] is unrestricted when . the parties' arbitration agreement contains no language restricting the breadth of issues, reserving explicit rights, or conditioning the award on court review." (Internal quotation marks omitted.) Industrial Risk Insurers v. Hartford Steam Boiler Inspection & Ins. Co. , 273 Conn. 86, 89 n.3, 868 A.2d 47 (2005). It also bears noting that, in Wheeler , the defendants asserted res judicata against lot owners who were not party to the prior proceedings and, therefore, had no prior opportunity to litigate their claims, a consideration that framed our preclusion analysis. See Wheeler v. Beachcroft, LLC , supra, 320 Conn. at 166, 129 A.3d 677. In the present case, by contrast, res judicata is being asserted against the plaintiffs, who were parties to the arbitration and arguably had the opportunity to raise these issues therein. For example, although the prime contract gave the plaintiffs' architect, Russell J. Larrabee, much of the responsibility for administering the contract, in practice, Larrabee either refused or was not allowed by the plaintiffs to perform that role. The plaintiffs also changed project engineers midstream. The arbitrator found that matters were further complicated by the fact that the plaintiffs contracted separately with various building and design professionals, and that the parties kept virtually no written records of their communications. See G. Shell, "Res Judicata and Collateral Estoppel Effects of Commercial Arbitration," 35 UCLA L. Rev. 623, 663-65 (1988) ("[T]he court must ask itself what rational parties would have agreed to had the matter of preclusion been explicitly negotiated between them.... If a party clearly intended to arbitrate the transaction at issue, then that party should not later be permitted to circumvent the prior arbitration award by suing a person who was functionally central to the transaction but who was technically not a party to the arbitration."). "Section 1 (b) of the agreement provides: '[Lindade] assumes toward [Rizzo] all obligations, risks, and responsibilities for the Work, which [Rizzo] assumes toward [the plaintiffs] in the Contract Documents, and shall be bound to [Rizzo] in the same manner and to the same extent [Rizzo] is bound to [the plaintiffs] by the Contract Documents.' " Girolametti v. Michael Horton Associates, Inc. , supra, 173 Conn. App. at 639-40, 164 A.3d 731 ; see also C. Ingwalson et al., supra, 6 J. Am. C. Constr. Laws., no. 1, p. 3 ("[p]articularly for those in the construction industry, a clear and express incorporation by reference of one agreement into another is usually effective"). This interpretation of the award also is consistent with the position that the plaintiffs took in the underlying litigation when responding to the defendants' interrogatories. For example, in response to BlueScope's request that the plaintiffs "identify each and every person with whom [they] contracted to procure labor, services, materials and/or equipment for the [p]roject," the plaintiffs responded that they had contracted directly with site work, sprinkler, and test/inspection contractors, but that, otherwise, they "contracted only with Rizzo . for the design and construction . on the [p]roject" and that, "[a]s part of its representations to the [plaintiffs], Rizzo assumed the responsibility to contract with the required design professionals.... Rizzo engaged multiple entities to provide structural engineering services, including . [Horton, Munger, VP Buildings, Inc., Lindade, and Quaraglia]." In other words, the plaintiffs themselves drew a clear distinction during the discovery process between subcontractors who were answerable directly to them and those, including all of the defendants, whose responsibility ran directly through Rizzo.

12485097

Stephen A. BROWN v. Leo OTAKE et al.

Brown v. Otake

2016-04-19

No. 37691.

951

966

138 A.3d 951

138

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

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

Fastcase

Stephen A. BROWN v. Leo OTAKE et al.

Stephen A. BROWN v. Leo OTAKE et al. No. 37691. Appellate Court of Connecticut. Argued Jan. 5, 2016. Decided April 19, 2016. Devin W. Janosov, Norwalk, with whom was Lukas J. Thomas, for the appellant (plaintiff). Jeffrey J. Mirman, with whom, on the brief, was Alexa T. Millinger, Hartford, for the appellees (defendants). SHELDON, KELLER and PRESCOTT, Js.

7497

47270

PRESCOTT, J. The plaintiff, Stephen A. Brown, appeals from the summary judgment rendered by the trial court in favor of the defendants, Leo Otake and Saint Francis Hospital and Medical Center (hospital). The plaintiff's principal claim on appeal is that the court improperly violated the law of the case doctrine by granting summary judgment in favor of the defendants on all counts of the complaint on the basis of its determination that, as a matter of law, no contract existed between the parties, despite a prior ruling by the court on a motion to strike that suggested that the formation of a contract was immaterial to those counts of the complaint that alleged negligent and intentional misrepresentation and tortious interference with business expectancies (noncontractual counts). We disagree and affirm the judgment of the court. The record reveals the following undisputed facts and procedural history relevant to our review. The plaintiff was a plastic surgeon who practiced in Hartford and New Britain, and had privileges at the hospital. The plaintiff decided to retire from practice due to physical limitations that began to affect his ability to perform surgeries. Hoping to find someone to purchase his practice, he hired a broker to help him locate a buyer. The broker contacted Otake about the opportunity to purchase the plaintiff's practice in 2009. At that time, Otake practiced plastic and reconstructive surgery at Yale-New Haven Hospital, commuting there from his home in Westchester County, New York. The plaintiff and Otake began communicating directly in November, 2009, and spoke on and off throughout the first half of 2010, trying to negotiate terms for the sale of the plaintiff's practice to Otake. Although Otake expressed interest in purchasing the plaintiff's practice, he was unsure about relocating to the Hartford area and also was considering other opportunities. The plaintiff assured Otake that the plaintiff's practice was doing very well and that he would provide letters introducing Otake to his patients. The plaintiff also made clear that he was willing to stay on with the practice in the short term, if Otake bought it, to aid Otake in the transition. The plaintiff, who understood that the hospital was looking to offer a two year stipend to ensure adequate plastic surgery coverage for the hospital, introduced Otake to members of the hospital's surgery department, including the chief of surgery, with the hope that Otake and the hospital could come to a short-term staffing arrangement that would benefit all parties. Ultimately, however, Otake decided not to purchase the plaintiff's practice, and instead took a full-time position that he was offered by the hospital in August, 2010. In May, 2011, the plaintiff commenced this action against the defendants. According to the plaintiff's initial complaint, he and Otake had reached an agreement about the sale of the plaintiff's practice, and although the plaintiff had performed all of his obligations in accordance with that agreement, he suffered damages as a result of the defendants' conduct. In particular, the plaintiff alleged that he expended considerable time and effort keeping his practice operational during the transition process, and that those efforts were made in reliance on Otake's representation that he would buy the practice. Among the expenses that the plaintiff alleged he incurred in keeping his practice operational were office expenses, salaries, overhead, rent, utilities, supplies, and malpractice insurance. Additionally, the plaintiff alleged that despite having introduced Otake to the hospital as "the plastic and reconstructive surgeon who was purchasing his business and practice," the hospital and Otake secretly had agreed that, instead of offering Otake a two year stipend, the hospital would hire Otake as a full-time employee to enhance the hospital's existing plastic surgery department, which would directly compete with the plaintiff's practice. The plaintiff's initial complaint contained seven counts. Counts one and six alleged claims against Otake for breach of contract and unjust enrichment; count seven alleged tortious interference with business expectancies against the hospital; and counts two through five alleged, respectively, negligent misrepresentation, intentional misrepresentation, breach of the duty of good faith and fair dealing, and fraudulent concealment against both defendants. On July 7, 2011, the defendants filed a joint motion to strike all counts of the complaint for failure to set forth sufficient facts to state a cognizable claim. The court, Domnarski, J., rendered a decision on October 14, 2011, granting in part and denying in part the motion to strike. The court granted the motion to strike as to four counts of the complaint. First, the court reasoned that although the plaintiff had alleged in the complaint that he and Otake had agreed in principle to a sale of the plaintiff's practice to Otake, the plaintiff had failed to plead facts demonstrating that they had come to terms about essential provisions necessary for the formation of a contract, such as a purchase price. The court concluded that this was fatal to the plaintiff's breach of contract count. Second, the court determined that there was no allegation in the complaint of a contractual relationship between the plaintiff and the hospital. Because the plaintiff had failed to plead facts establishing the existence of a contract between himself and either of the defendants, the court concluded that the plaintiff's count against them for breach of the duty of good faith and fair dealing failed to state a valid cause of action. Third, the court concluded that the count alleging fraudulent concealment must be stricken because Connecticut does not recognize an independent cause of action for fraudulent concealment. The court, citing Zenk-Pinter v. Henry J. Showah, DDS, P.C., Superior Court, judicial district of Danbury, Docket No. CV-106002725, 2010 WL 4276743 (September 23, 2010) (50 Conn. L. Rptr. 689, 690 ), explained that "[General Statutes § 52-595 ] is the codification of the common-law rule that fraudulent concealment is an avoidance of an affirmative defense of the statute of limitations. It gives rise to neither an independent cause of action nor an enhancement of damages." Fourth, the court concluded that the plaintiff's allegations that his introduction of Otake to the hospital led to the hospital's hiring of Otake and that the plaintiff, therefore, was entitled to compensation were legally insufficient to state a claim against Otake for unjust enrichment. The court reasoned: "While unjust enrichment is a broad doctrine, if such behavior were legally sufficient to state a cause of action, every person who has recommended another for a job or spoke kindly of them to a potential employer without receiving compensation in return could survive a motion to strike on a claim of unjust enrichment." The court denied the motion to strike with respect to the remaining three counts, concluding that the plaintiff adequately had pleaded facts sufficient to state causes of action sounding in negligent misrepresentation, intentional misrepresentation, and tortious interference. With respect to the tortious interference count, the court suggested that its legal sufficiency did not turn on the existence of an enforceable contract, stating that "[although] the plaintiff has not sufficiently pleaded breach of contract, the plaintiff has pleaded that he was, at the very least, in negotiations with Otake to purchase his practice and business. It was only based on these negotiations that he introduced Otake to the hospital. It is also alleged that he introduced Otake as the surgeon who was buying his practice. Therefore, the hospital is alleged to have been on notice of the beneficial business expectancy, even if it was based on an unenforceable contract. As previously stated, the plaintiff has adequately pleaded that the hospital made misrepresentations to him regarding the purpose of the introduction. And finally, it is alleged that the hospital secretly hired Otake to the detriment of the plaintiff in that any potential deal for Otake to purchase his business was destroyed when Otake was hired as a full-time employee of the hospital. Therefore, the plaintiff has stated a legally sufficient cause of action as to tortious interference...." The plaintiff filed a revised amended complaint on November 23, 2011 (operative complaint). Although the plaintiff did not replead those counts asserting unjust enrichment and fraudulent concealment, he repleaded the breach of contract count against Otake and also repleaded the breach of the duty of good faith and fair dealing count, although only against Otake. In sum, the operative complaint contained five counts: count one alleged breach of contract by Otake; count two alleged negligent misrepresentation by both defendants; count three alleged intentional misrepresentation by the defendants; count four alleged that Otake had breached the duty of good faith and fair dealing; and count five asserted a claim of tortious interference with business expectancy against the hospital. The defendants filed an answer to the operative complaint and a special defense alleging that the plaintiff had failed to mitigate his damages. On November 14, 2014, the defendants filed a motion for summary judgment as to all five counts of the complaint, asserting that there were no material facts in dispute and that the defendants were entitled to judgment as a matter of law. In support of their motion, the defendants submitted a memorandum of law as well as several affidavits and deposition transcripts. In response, the plaintiff filed a two page opposition. He submitted no opposing affidavits or any other documentary proof, nor did he cite to any of the depositions or other documentary evidence submitted by the defendants. The court heard argument on the motion for summary judgment on December 22, 2014. With respect to the counts for breach of contract and breach of the covenant of good faith and fair dealing, the defendants argued that they had shown through their submissions, including the plaintiff's own deposition testimony, that there was never any meeting of the minds between the plaintiff and Otake regarding the sale of the plaintiff's practice. Without a meeting of the minds, the defendants argued that the parties had not formed a binding contract, and, therefore, that the plaintiff's claims of breach of contract and breach of the covenant of good faith and fair dealing failed as a matter of law. Although the defendants asserted that the lack of a contractual relationship also was fatal to the tortious interference count against the hospital, they also argued that the count failed because there was nothing malicious or tortious about the hospital's offer to Otake of a job, and, thus, the plaintiff had failed to establish the existence of an essential element of the tort of tortious interference. The defendants addressed the two misrepresentation counts together. They argued that neither of the two alleged misrepresentations-Otake's alleged representation that he would purchase the plaintiff's practice and the hospital's alleged representation that it planned to offer Otake a two year stipend-were supported by any evidence in the record. According to the defendants, the affidavits submitted in support of summary judgment demonstrated that although Otake engaged in negotiations to purchase the plaintiff's practice, he never agreed to do so, and the hospital never represented that it would provide Otake with a stipend in any amount and only offered Otake a position after his negotiations with the plaintiff had ended. In response to the defendants' arguments, the plaintiff conceded that his claim for breach of contract was not necessarily a strong one, but argued that the purpose of summary judgment was not to prevent weak cases from proceeding to trial and that whether he had reached an enforceable oral agreement with Otake was an issue that should be left for the jury to consider, not decided at summary judgment. In essence, the plaintiff seemed to argue that his allegation in the complaint that an agreement existed was sufficient to prevent summary judgment on both the breach of contract claim and the claim for tortious interference, stating that if he "prevails on the contract claim, then, obviously, there was some business relationship between the parties." The plaintiff offered no arguments in support of his claims of negligent and intentional misrepresentation. With respect to those counts, the plaintiff's counsel stated as follows: "Now, the other claims, misrepresentation, I don't know that there is stuff specifically in the record to support that at this point, whether or not there would be stuff at trial to support that, but I'm mostly concerned with simply those two counts right now, the breach of contract claim and the tortious interference with contractual relations. And I think both of those are clear. I think the five points of tortious interference are met if you allow a fact finder to determine whether there is a breach of contract claim. And I think that's the standard of the law, and I think that my client should be entitled to a day in court to be able to have a fact finder evaluate that on its merits." Following argument, the court, Hon. Richard M. Rittenband, judge trial referee, indicated that it would "take the papers." The court later rendered a decision granting the motion for summary judgment. The court did not issue a written memorandum of decision "encompass[ing] its conclusion as to each claim of law raised by the parties and the factual basis therefor...." Practice Book § 64-1(a). Rather, the court's limited analysis was included on the notice granting the motion in its entirety: "A court may interpret a contract as a matter of law, and the court finds that there was clearly no meeting of the minds. The amended complaint shows a purchase price of $200,000, yet [the plaintiff's] deposition cites a $300,000 purchase price. The terms of payment were not agreed upon.... [T]he plaintiff's wife and office manager stated in a deposition that in July of 2010 her husband and the defendant, Otake, were still negotiating. Moreover, the agreement was conditional upon Otake obtaining a stipend from Saint Francis, which never came to pass." The plaintiff filed a motion to reargue in which he claimed that the court appeared to have granted summary judgment on all counts solely on the basis of its conclusion that there was no contract between the parties. The plaintiff argued that it was not necessary for him to show the existence of an enforceable contract in order to sustain his claim of tortious interference with a business expectancy, and, therefore, the court improperly granted summary judgment on that count. The plaintiff made no argument that summary judgment was inappropriately granted with respect to any of the other counts, including the two misrepresentation counts. The defendants filed an objection to the motion to reargue. The court sustained that objection and denied the motion. This appeal followed. During the pendency of the appeal, the plaintiff filed a motion for articulation pursuant to Practice Book § 66-5. The plaintiff asked the court to explain how the discussion it included on the notice granting the motion for summary judgment applied with respect to each of the five counts of the operative complaint, and also to articulate the factual and legal basis for denying the plaintiff's motion to reargue. The trial court granted the motion and issued a brief articulation. With respect to count one, alleging breach of contract, the court stated: "The facts presented to the court showed, as stated in the granting of the motion for summary judgment, that there was no meeting of the minds, the amended complaint shows a purchase price of $200,000, yet [the plaintiff's] deposition cites a $300,000 purchase price. The terms of payment were not agreed upon, and the plaintiff's wife stated that her husband and Otake were still negotiating. Finally, the agreement was conditional upon Otake obtaining a stipend from [the hospital], which never was obtained. Therefore, there is no breach of contract." Regarding count two, alleging negligent misrepresentation, the court stated: "There were no facts presented that showed negligent representation on the part of these defendants." Similarly, the court articulated as to count three, alleging intentional misrepresentation, that "[t]here were no facts presented that any misrepresentations were made, negligent or false." The court articulated with respect to count four that, because "there was no meeting of the minds and no breach of contract, there were no facts presented that [Otake] violated the duty of good faith [and fair dealing]." With respect to count five, alleging tortious interference, the court articulated as follows: "No facts were presented that showed that there was any tortious interference by [the hospital]. [The hospital] had no obligation to give [Otake] a stipend, and there were no facts presented to show that the failure by [the hospital] to give a stipend was for the purpose of interfering with the contract between [the plaintiff] and [Otake], which, in fact, did not exist. One cannot interfere with something that does not exist." Finally, the court explained that it had denied the motion to reargue because "nothing new was presented that had not yet been considered." Before turning to our discussion of the plaintiff's claims on appeal, we first set forth the well settled legal principles that guide our review. "The fundamental purpose of summary judgment is preventing unnecessary trials.... If a plaintiff is unable to present sufficient evidence in support of an essential element of his cause of action at trial, he cannot prevail as a matter of law.... To avert these types of ill-fated cases from advancing to trial, following adequate time for discovery, a plaintiff may properly be called upon at the summary judgment stage to demonstrate that he possesses sufficient counterevidence to raise a genuine issue of material fact as to any, or even all, of the essential elements of his cause of action." (Citations omitted; internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 822-23, 116 A.3d 1195 (2015). "Practice Book § [17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Footnote added; internal quotation marks omitted.) Barbee v. Sysco Connecticut, LLC, 156 Conn.App. 813, 817-18, 114 A.3d 944 (2015). "It is not enough . 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.... [T]ypically [d]emonstrating a genuine issue requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred." (Citation omitted; internal quotation marks omitted.) Rafalko v. University of New Haven, 129 Conn.App. 44, 49, 19 A.3d 215 (2011). Only if the defendant as the moving party has submitted no evidentiary proof to rebut the allegations in the complaint, or the proof submitted fails to call those allegations into question, may the plaintiff rest upon factual allegations alone. Conboy v. State, 292 Conn. 642, 651-52, 974 A.2d 669 (2009). "[I]ssue-finding, rather than issue-determination, is the key to the procedure.... [T]he trial court does not sit as the trier of fact when ruling on a motion for summary judgment.... [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist.... Our review of the decision to grant a motion for summary judgment is plenary.... We therefore must decide whether the court's conclusions were legally and logically correct and find support in the record." (Internal quotation marks omitted.) Barbee v. Sysco Connecticut, LLC, supra, 156 Conn.App. at 818, 114 A.3d 944. The plaintiff claims that the court improperly granted summary judgment on the entire complaint on the basis of its determination that, as a matter of law, no contract existed between the parties. The plaintiff contends that in a prior ruling on the defendants' motion to strike, a different judge had concluded that the formation of a contract was immaterial with respect to the noncontractual counts of the complaint alleging negligent and intentional misrepresentation and tortious interference with business expectancies, and, therefore, the court's decision to grant summary judgment on those counts on the basis of its rationale that no contract existed was improper and violated the law of the case doctrine. We are not persuaded. We clarify at the outset that the plaintiff does not challenge the court's summary judgment ruling with respect to either the breach of contract count or the count alleging breach of the covenant of good faith and fair dealing, and his attorney conceded as much at oral argument before this court. The plaintiff advances no argument that the court's determination that no contract was ever formed between Otake and the plaintiff provided an improper basis for granting summary judgment on those counts, nor could he properly do so. See Macomber v. Travelers Property & Casualty Corp., 261 Conn. 620, 638, 804 A.2d 180 (2002) (existence of contract necessary antecedent to any claim for breach of contract, including claim for breach of duty of good faith and fair dealing). Rather, it is only with respect to the noncontractual counts, those alleging negligent misrepresentation, intentional misrepresentation, and tortious interference with business expectancies, that the plaintiff challenges the court's decision to grant summary judgment, arguing that the court's determination that there was no meeting of the minds, and, thus, no contract between Otake and the plaintiff, was not a proper basis for granting summary judgment on those counts. Before turning to a discussion of whether the court properly granted summary judgment with respect to each of the noncontractual counts, we briefly discuss the law of the case doctrine and why the plaintiff's reliance on that doctrine is misguided in the present case. "The application of the law of the case doctrine involves a question of law, over which our review is plenary.... 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 . may treat that [prior] 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). "The adoption of a different view of the law by a judge in acting upon a motion for summary judgment than that of his predecessor in considering such a motion or some other pretrial motion is a common illustration of this principle.... From the vantage point of an appellate court it would hardly be sensible to reverse a correct ruling by a second judge on the simplistic ground that it departed from the law of the case established by an earlier ruling.... In an appeal to this court [in which] views of the law expressed by a judge at one stage of the proceedings differ from those of another at a different stage, the important question is not whether there was a difference but which view was right." (Citations omitted; internal quotation marks omitted.) Breen v. Phelps, 186 Conn. 86, 100, 439 A.2d 1066 (1982). For several reasons we will explain, we are unconvinced that the law of the case doctrine is applicable under the circumstances presented. Further, even if it were applicable, the plaintiff has failed to demonstrate that application of the doctrine would mandate a reversal of the court's decision to grant summary judgment in the present case. First, it appears that the plaintiff reads far too much into Judge Domnarski's prior ruling. The legal issue before Judge Domnarski in deciding the defendants' motion to strike was whether the plaintiff had pleaded sufficient facts in the complaint to state a proper cause of action. The plaintiff suggests that because the court answered that question in the affirmative with respect to the noncontractual counts, and yet contemporaneously determined that the plaintiff had failed to allege the existence of a contractual relationship essential to stating a cause of action for breach of contract, the court necessarily also must have decided that the existence of a contractual relationship was immaterial to the misrepresentation and tortious interference counts. That particular question of law, however, was not an issue that was actually litigated by the parties or expressly decided by Judge Domnarski in his ruling on the motion to strike. Accordingly, Judge Rittenband's decision cannot be characterized as conflicting with Judge Domnarski's ruling on the motion to strike. Second, the plaintiff's entire law of the case argument is premised on his assumption that Judge Rittenband granted summary judgment on all counts of the complaint solely on the basis of his determination that, as a matter of law, there was no enforceable contract between Otake and the plaintiff. That assumption, however, is not supported by the record, as evidenced by the court's articulation, which the plaintiff appears to ignore. Finally, the law of the case doctrine recognizes that a trial judge may, in the exercise of its discretion, choose to reach a contrary conclusion on an issue of law previously decided if the judge is convinced that the prior ruling was wrong or following it would work an injustice. Even if the plaintiff is correct that the law of the case doctrine should have guided Judge Rittenband's summary judgment decision, the plaintiff has failed to analyze whether and in what manner Judge Rittenband abused his discretion in allegedly electing not to follow Judge Domnarski's earlier ruling. Simply put, although the plaintiff is entitled to challenge the merits of Judge Rittenband's decision to grant summary judgment, he has failed to demonstrate that the law of the case doctrine is implicated here. Having determined that the law of the case doctrine presented no discernible barrier to the court's summary judgment ruling, we turn next to whether the court properly determined that there was an absence of any genuine issue of material fact and that the defendants were entitled to judgment in their favor under applicable principles of substantive law. We first consider whether the court properly granted summary judgment on the two misrepresentation counts. Although the plaintiff offered no argument at the hearing on the motion for summary judgment with respect to those counts, stating that he was unsure whether there was "stuff specifically in the record to support" them, the plaintiff nonetheless now argues on appeal that the court should have denied summary judgment because he had alleged sufficient facts in his complaint to support his misrepresentation claims against each of the defendants. We conclude that the plaintiff failed to meet his burden of production in opposing summary judgment and that the court properly rendered judgment on both counts in favor of the defendants. "To establish liability for negligent misrepresentation, a plaintiff must be able to demonstrate by a preponderance of the evidence: (1) that the defendant made a misrepresentation of fact (2) that the defendant knew or should have known was false, and (3) that the plaintiff reasonably relied on the misrepresentation, and (4) suffered pecuniary harm as a result." (Emphasis added; internal quotation marks omitted.) Stuart v. Freiberg, supra, 316 Conn. at 821-22, 116 A.3d 1195. A claim of intentional misrepresentation requires the same elements as negligent misrepresentation except that the plaintiff also must prove that the defendant made the misrepresentation "to induce the other party to act upon it...." (Internal quotation marks omitted.) Jaser v. Fischer, 65 Conn.App. 349, 358, 783 A.2d 28 (2001). "Although the general rule is that a misrepresentation must relate to an existing or past fact, there are exceptions to this rule, one of which is that a promise to do an act in the future, when coupled with a present intent not to fulfill the promise, is a false representation." Paiva v. Vanech Heights Construction Co., 159 Conn. 512, 515, 271 A.2d 69 (1970). In the operative complaint, the plaintiff alleged two possible representations on which to base his claims of negligent and intentional misrepresentation-one by Otake and one by the hospital. First, Otake allegedly represented that he would purchase the plaintiff's practice. Second, the hospital allegedly represented that it intended to offer a two year stipend to a plastic surgeon who would agree to provide coverage for the hospital. In their motion for summary judgment, the defendants argued that there was no evidence that these alleged representations were ever made, and, therefore, because the plaintiff could not prove an essential element of his misrepresentation counts, they were entitled to judgment as a matter of law. With respect to Otake's alleged representation that he would purchase the plaintiff's practice, the defendants submitted evidence from which it can be reasonably inferred that no such representation was ever made. In Otake's affidavit, he attests that he had only engaged in negotiations with the plaintiff; he never agreed to buy the plaintiff's practice. He claims that he did not receive the financial information from the plaintiff necessary to make such a preliminary decision until July, 2010, after which he had no further contact with the plaintiff. This fact was supported by the testimony of the plaintiff's wife in her deposition that, on July 17, 2010, she had provided Otake with detailed numbers about income and the costs associated with running the practice. The defendants also offered the deposition testimony of the plaintiff, in which he acknowledged that he and Otake had never agreed on any of the essential terms of a sale, including financing terms. When asked about the allegation in the complaint that the purchase price was to have been $200,000, the plaintiff testified that he believed the price was actually $300,000. The plaintiff's wife confirmed in her deposition that the parties were still in negotiation as of July, 2010. The plaintiff offered no evidence to rebut the evidence submitted by the defendants and simply directed the court to the allegations in his complaint. For example, he failed to submit his own counteraffidavit or any deposition transcript evidencing when Otake allegedly had made this representation. Similarly, the defendants presented evidence negating the allegation that the hospital had made a misrepresentation about its intention to provide Otake with a two year stipend, something that the plaintiff and Otake had agreed would be necessary in order to make the purchase of the plaintiff's practice a viable opportunity for Otake. According to the affidavits that the defendants submitted from various hospital agents, before it could even consider offering Otake a stipend, the hospital would have had to complete a study, something that was never done. Carolyn Martindale, the hospital's former director of business development, testified that there was no reason to offer a stipend until there was an understanding between the plaintiff and Otake, which never materialized. Again, the plaintiff offered no evidence of his own necessary to create a genuine dispute about the existence of this representation by the hospital. According to the court's articulation, summary judgment was warranted on the negligent misrepresentation count because "[t]here were no facts presented that showed negligent representation on the part of these defendants." With respect to the count alleging intentional misrepresentation, the court articulated that it granted summary judgment because "[t]here were no facts presented that any misrepresentations were made, negligent or false." On the basis of our review of the record, including the arguments of the parties at summary judgment, we construe the court's ruling as holding that the plaintiff failed to present any evidence rebutting the proof submitted by the defendants showing that the representations on which the plaintiff relies as misrepresentations were never made, thereby establishing a lack of a genuine issue of material fact on an essential element necessary to prevail at trial on either misrepresentation count. That conclusion is legally and logically correct, and supported by the record. Once the defendants presented evidence demonstrating the lack of a genuine issue of material fact regarding the existence of a misrepresentation of fact, the evidentiary burden shifted to the plaintiff, and he could no longer rely solely upon the allegations in his complaint. To survive summary judgment, the plaintiff needed to marshal some evidence countering that submitted by the defendants, and it was not the court's responsibility to search the evidentiary record provided by the moving party on his behalf. Having failed to present any evidence himself or to reference any portion of the evidence submitted by the defendants, the plaintiff failed to meet his burden. Accordingly, we conclude that the court properly granted summary judgment on the misrepresentation counts as a matter of law. We turn next to the plaintiff's argument that the court improperly granted summary judgment in favor of the hospital on his claim of tortious interference with business expectancies. "It is well established that the elements of a claim for tortious interference with business expectancies are: (1) a business relationship between the plaintiff and another party; (2) the defendant's intentional interference with the business relationship while knowing of the relationship; and (3) as a result of the interference, the plaintiff suffers actual loss." (Internal quotation marks omitted.) American Diamond Exchange, Inc. v. Alpert, 302 Conn. 494, 510, 28 A.3d 976 (2011). "The plaintiff need not prove that the defendant caused the breach of an actual contract; proof of interference with even an unenforceable promise is enough.... A cause of action for tortious interference with a business expectancy requires proof that the defendant was guilty of fraud, misrepresentation, intimidation or molestation . or that the defendant acted maliciously.... It is also true, however, that not every act that disturbs a contract or business expectancy is actionable.... A defendant is guilty of tortious interference if he has engaged in improper conduct.... [T]he plaintiff [is required] to plead and prove at least some improper motive or improper means.... "Stated simply, to substantiate a claim of tortious interference with a business expectancy, there must be evidence that the interference resulted from the defendant's commission of a tort." (Citations omitted; internal quotation marks omitted.) Biro v. Hirsch, 62 Conn.App. 11, 21, 771 A.2d 129, cert. denied, 256 Conn. 908, 772 A.2d 601 (2001) ; see Kopperl v. Bain, 23 F.Supp.3d 97, 110 (D.Conn.2014) ("[c]entral to [a claim of tortious interference with business expectancies] is the requirement that to be actionable, the interference complained of must be tortious " [emphasis in original] ). In the present case, except for the plaintiff's bald allegations in his complaint, there is nothing in the record indicating that the hospital acted fraudulently or with malice when it offered Otake a full-time position, despite having knowledge of the negotiations between Otake and the plaintiff regarding the sale of the plaintiff's practice. The defendants presented evidence in support of summary judgment that the hospital and Otake did not engage in discussions about full-time employment for Otake until after the hospital believed that the negotiations between the plaintiff and Otake had ended. The defendants submitted evidence that it was the hospital's understanding that no agreement was ever reached between the plaintiff and Otake. The court, in its articulation, used language suggesting that the lack of a contractual relationship between Otake and the plaintiff was a factor in the court's decision to grant summary judgment. The plaintiff claims that this was error because an enforceable contract is not a necessary element of a claim for tortious interference. The court more generally explained, however, that "[n]o facts were presented that showed that there was any tortious interference by [the hospital]." Read as a whole, the court's articulation of its reasoning focuses less on the lack of a contractual relationship between Otake and the plaintiff than on the plaintiff's failure to present any evidence demonstrating tortious conduct on the part of the hospital or its agents. As with the misrepresentation counts, once the defendants presented evidence demonstrating the lack of a genuine issue of material fact regarding an essential element-namely, that the actions of the hospital were, in some manner, tortious or done with malice-the plaintiff could not rest on the factual allegations in the complaint and needed to provide counteraffidavits or other evidence demonstrating a genuine issue of material fact. Because he failed to produce such evidence, the court properly granted summary judgment on the tortious interference count. The judgment is affirmed. In this opinion the other judges concurred. We refer to the defendants individually by name and collectively as the defendants. The plaintiff raises additional claims that we construe as part and parcel of his principal claim, and which we address as part of that discussion. The plaintiff shared office space with another doctor, Steven Belinkie, at a medical office building in Hartford that was owned by the hospital and at a New Britain office building in which the plaintiff and Belinkie each had an ownership interest. The revised breach of contract count was identical to the one the court previously had stricken except that it included the following additional allegation: "[The plaintiff and Otake] agreed that the purchase price for the business and practice would be $200,000." Specifically, the defendants submitted the depositions of the plaintiff and his wife, who was employed by the practice as both the office manager and a nurse; an affidavit of Otake, attached to which were copies of several correspondences between himself and agents of the hospital, including the hospital's letter offering Otake a position on its staff; an affidavit of Carolyn Martindale, the hospital's former director of business development; an affidavit of Joseph Bisson, the hospital's former vice president of business development; and an affidavit of Jeffrey Steinberg, the former director of the hospital's department of surgery. The plaintiff in his opposition never discussed the count alleging breach of the covenant of good faith and fair dealing during arguments nor challenged the defendants' suggestion that the viability of that count turned, like the breach of contract count, on the existence of a contractual agreement between Otake and the plaintiff. We note that neither party filed a motion for further articulation; see Practice Book § 66-5 ; or sought review of the court's articulation from this court in accordance with Practice Book § 66-7. Although the plaintiff asserted as a claim in his preliminary statement of issues that the court abused its discretion by denying his motion to reargue, he did not raise this claim in his appellate brief and, thus, we deem it abandoned. See 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). The plaintiff claims in the present case that, in granting summary judgment, the court failed to view the evidence presented in the light most favorable to him. "The question of whether a trial court has held a party to a less exacting standard of proof than the law requires is a legal one.... Accordingly, our review is plenary." (Citation omitted.) Kaczynski v. Kaczynski, 294 Conn. 121, 126, 981 A.2d 1068 (2009). Although it is axiomatic that "[i]n deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . [and] must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion . a party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." (Citations omitted; internal quotation marks omitted.) Norse Systems, Inc. v. Tingley Systems, Inc., 49 Conn.App. 582, 591, 715 A.2d 807 (1998). In the absence of any indication that the court applied an incorrect standard, we will assume that the court acted correctly in accordance with the law. See In re James O., 160 Conn.App. 506, 520 n. 4, 127 A.3d 375, cert. granted on other grounds, 319 Conn. 956, 125 A.3d 533 (2015). The court never indicated at the hearing on the motion for summary judgment or in its decision or articulation that it was applying a standard other than one in which it viewed the evidence presented in the light most favorable to the plaintiff as the nonmoving party. Because the plaintiff has failed to demonstrate that the court applied a less favorable standard, we find no merit in his claim to the contrary. Further, even if the trial court applied an incorrect standard, this court, in conducting our own de novo review, has viewed the evidence presented in the light most favorable to the plaintiff and reaches the same conclusion as the trial court, namely, that the defendants are entitled to summary judgment. Any error that the plaintiff assigns to the trial court is, accordingly, immaterial. See Escourse v. 100 Taylor Ave., LLC, 150 Conn.App. 819, 821 n. 2, 92 A.3d 1025 (2014). Accordingly, to the extent that some of the arguments made by the plaintiff in his appellate brief can be construed as challenging the court's decision with respect to those contractual counts, we decline to address their merits. The plaintiff raises as an additional claim in his appellate brief that Judge Rittenband should have given the plaintiff another opportunity to replead because the defendants' motion for summary judgment challenged the legal sufficiency of the operative complaint and, thus, should have been treated as a motion to strike. See Larobina v. McDonald, 274 Conn. 394, 400-401, 876 A.2d 522 (2005). We reject that claim, however, because it is evident from reviewing the motion for summary judgment that the defendants were not challenging the legal sufficiency of the plaintiff's allegations, but the lack of evidentiary proof necessary to raise a genuine issue of material fact and avoid summary judgment. Whereas the former must be evaluated by the court on the basis of the factual allegations made in the complaint, the latter requires consideration of the evidentiary basis for those allegations, something the plaintiff failed to provide. There is little doubt that the court's initial truncated explanation for its decision to grant the defendants' motion for summary judgment as well as the court's ill-advised choice not to issue a memorandum of decision contributed to any confusion by the plaintiff regarding the basis for the court's decision. We do not consider whether the plaintiff effectively abandoned his misrepresentation counts because that issue was not raised by the defendants on appeal and, thus, was not briefed by the parties. "[A]t common law, fraudulent misrepresentation and intentional misrepresentation are the same tort." Kramer v. Petisi, 285 Conn. 674, 684 n. 9, 940 A.2d 800 (2008). Although neither representation appears on its face to relate to an existing or past fact, each arguably could fall within the exception for a promise to act in the future. Because our resolution of the plaintiff's claim turns on a lack of evidentiary support that either representation occurred, we will assume without deciding that the alleged representations qualify as actionable misrepresentations of fact. As aptly explained by the District Court in Kopperl : "Our relations and expectancies in life are constantly interfered with by others. That is an inevitable consequence of living in a competitive world, among people whose ambitions, hopes or purposes may match or conflict with our own. If we could file a civil action against anyone who interfered with our contractual relations or business expectancies, the courts would have no time to do anything else. The saving limitation, embedded in the common law, is found in the rule that only a tortious interference is actionable." Kopperl v. Bain, supra, 23 F.Supp.3d at 110. To the extent any ambiguity remained regarding the meaning of the court's articulation, the plaintiff never filed a motion for review seeking an order from this court requiring the trial court to articulate further. See footnote 7 of this opinion.

12485139

Bich-Ha Henriette RIEFFEL et al., v. Penelope D. JOHNSTON-FOOTE et al. (AC 37762)

Rieffel v. Johnston-Foote

2016-05-10

No. 37762.

729

747

139 A.3d 729

139

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

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

Fastcase

Bich-Ha Henriette RIEFFEL et al. v. Penelope D. JOHNSTON-FOOTE et al. (AC 37762)

Bich-Ha Henriette RIEFFEL et al. v. Penelope D. JOHNSTON-FOOTE et al. (AC 37762) No. 37762. Appellate Court of Connecticut. Argued Feb. 29, 2016. Decided May 10, 2016. Peter M. Ryan, Darien, for the appellants (plaintiffs). Brian J. Farrell, Jr., for the appellees (named defendant et al.). Kelley Franco Throop, New Canaan, for the appellees (defendant Diane Jones et al.). Douglas R. Steinmetz, Westport, for the appellees (defendant Dan Tredwell et al.). Peter E. DeMartini, with whom, on the brief, was Charles A. Deluca, Stamford, for the appellees (defendant Daniel W. Moger, Jr., et al.). KELLER, MULLINS and PELLEGRINO, Js.

9307

57735

PER CURIAM. The plaintiffs, Bich-Ha Henriette Rieffel and Marc A. Rieffel, appeal from the summary judgment rendered on their complaint in favor of the defendants, Penelope D. Johnston-Foote, Rayh Foote, also known as Ray Foote, Diane Jones, Michael B. Jones, Dan Tredwell, Lucinda Tredwell, Sue Baker, Attorney Daniel W. Moger, Jr., Daniel W. Moger, LLC, the Penelope Johnston-Foote Family Qualified Personal Residence Trust (trust), and LWT Associates, LLC (LLC). In their complaint, the plaintiffs sought damages for vexatious litigation and abuse of process against several of their neighbors individually (Johnston-Foote, Foote, the Tredwells, the Joneses, and Baker), the owners of property on which certain neighbors resided (the trust and the LLC), the neighbors' attorney (Moger) and his law firm (Daniel W. Moger, LLC), for having filed a forcible entry and detainer action against the plaintiffs, which subsequently was withdrawn. On appeal, the plaintiffs claim that in rendering summary judgment in the defendants' favor the court improperly concluded that (1) the attorney defendants had probable cause to pursue the underlying forcible entry and detainer action; (2) the affidavits of several of the neighbor defendants were competent evidence of their special defense to the vexatious litigation counts of reliance on the advice of counsel; (3) the trust and the LLC were not properly named as defendants because they were not parties to the underlying forcible entry and detainer action; and (4) the defendants' pursuit of the underlying action was not an abuse of process because the exclusive remedy available to the neighbor defendants was an action to quiet title. We affirm the judgment of the trial court. Evidence of the following facts appears in the record. The plaintiffs and the individual neighbor defendants all live in a secluded neighborhood on a private road, known as Thrushwood Road, off of Indian Head Road in the Riverside section of Greenwich. An unnamed right-of-way and a portion of Thrushwood Road are located on the land of the plaintiffs. For purposes of the summary judgment action and this appeal, rights of ingress and egress to the respective residences of the individual neighbor defendants over the unnamed right-of-way and Thrushwood Road are conceded by the plaintiffs. Near the head of Thrushwood Road, a small open shed or wooden stanchion, located on the plaintiffs' property, contained the mailbox of the plaintiffs and four mailboxes of the individual neighbor defendants. The individual neighbor defendants' mailboxes had existed at this particular location for periods of time ranging from ten years to more than forty years. In an undated letter addressed to "Dear Neighbors," Bich-Ha Henriette Rieffel demanded that the individual neighbor defendants remove the stanchion and their mailboxes on or before November 27, 2012. On or about December 10, 2012, the plaintiffs served several of the neighbor defendants with a "Notice of Termination of License," informing them that their "license and privilege to maintain a mailbox . on the property owned by [the plaintiffs] . is hereby terminated...." The notice advised the neighbor defendants that their license terminated as of December 17, 2012, and that the mailboxes and the stanchion should be removed by the close of the business day on that date. The individual neighbor defendants objected to the plaintiffs' demands and retained Moger in December, 2012, to protect their interests. Between December 17, 2012, and January 8, 2013, counsel for the plaintiffs and Moger exchanged correspondence regarding the dispute. On or about January 25, 2013, the plaintiffs removed the four mailboxes and the stanchion; the mailboxes of the individual neighbor defendants were left in the driveways of their respective properties. After Moger recommended to his clients the institution of a forcible entry and detainer action pursuant to General Statutes § 47a-43, the individual neighbor defendants authorized the action against the plaintiffs. An unsigned summons and complaint was presented to a judge, who signed the summons on January 29, 2013. Service subsequently was made on the plaintiffs. A court date of February 7, 2013, was set at the housing session of the Superior Court in Norwalk. On that date, the housing court judge apparently expressed some doubts about the strength of the case, and the plaintiffs filed a motion for summary judgment. Another court date was set, but, after consulting with his clients, Moger withdrew the entry and detainer action on February 19, 2013. On August 6, 2013, the plaintiffs commenced this action against the attorney defendants and the individual neighbor defendants who had been plaintiffs in the forcible entry and detainer action. In addition, the trust and the LLC were named as defendants although they were not parties to the forcible entry and detainer action. The complaint contained twenty-four counts. Each of the individual neighbor defendants, the trust, and the LLC were sued for common-law vexatious litigation, statutory vexatious litigation pursuant to both General Statutes § 52-568(1) and (2), common-law abuse of process, and common-law abuse of process with malice. The attorney defendants were sued for common-law vexatious litigation, statutory vexatious litigation pursuant to § 52-568(1) and (2), and common-law abuse of process. All of the defendants filed answers denying the essential allegations of the plaintiffs' complaint. The neighbor defendants all pleaded the special defense of reliance upon the advice of counsel. Subsequently, all of the defendants filed motions for summary judgment accompanied by supporting memoranda of law and affidavits. The attorney defendants also annexed exhibits to their motion, on which, in addition to Moger's affidavit, the neighbor defendants additionally relied. The plaintiffs responded, objecting to the granting of summary judgment, with memoranda and counteraffirmations. The court, by memorandum of decision, granted the motion for summary judgment filed by the attorney defendants after determining that the evidence presented by the parties, when viewed in the light most favorable to the plaintiffs, failed to establish a genuine issue as to any material fact and that, as a result, the attorney defendants were entitled to judgment in their favor as a matter of law. The court first determined that the evidence did not reveal the existence of a genuine issue of material fact with respect to whether the attorney defendants had probable cause to recommend to clients and to commence the forcible entry and detainer action against the plaintiffs. On the basis of the evidence before it, the court determined that such probable cause existed. The court stated that "[t]he existence of probable cause eliminates the major necessary predicate for the various vexatious suit claims asserted by the plaintiffs...." Next, the court determined that the evidence demonstrated that the attorney defendants did not abuse process because the forcible entry and detainer action was not instituted for a purpose for which such an action was not designed, thereby rejecting the plaintiffs' claim that the attorney defendants actually intended to bring a quiet title action. The court determined that what was sought only was the retention of the neighbor defendants' claimed possessory rights to their mailboxes. Further, the court determined that the plaintiffs, in their abuse of process claims against the attorney defendants, had failed to allege or prove that the attorney defendants engaged in specific misconduct intended to cause specific injury outside the normal contemplation of private litigation. With respect to the motions for summary judgment filed by the neighbor defendants, the court, in a separate memorandum of decision, determined that the evidence presented by the parties, when viewed in the light most favorable to the plaintiffs, failed to establish a genuine issue as to any material fact and that, as a matter of law, the neighbor defendants were entitled to judgment in their favor. The court determined that the evidence demonstrated that the neighbor defendants had provided Moger with any and all facts concerning the mailboxes, including their removal and placement on their properties, and that there was no evidentiary support for the plaintiffs' claim that the neighbor defendants' disclosure of facts to Moger was less than candid or incomplete. The court further concluded that Bich-Ha Henriette Rieffel's affirmation, which she filed in response to the neighbor defendants' motions for summary judgment, did not give rise to an issue of material fact with respect to her assertion of bad faith or malice against the neighbor defendants attributable to the removal of the mailboxes. On the basis of its assessment of the submissions before the court, the court then determined that the neighbor defendants had established the essential elements of their special defense of advice of counsel to the vexatious litigation claims of the plaintiffs. Finally, the court determined that the individual neighbor defendants did not abuse process because they did not bring their action to settle or quiet title, as the plaintiffs asserted, and therefore did not use legal process against the plaintiffs primarily to accomplish a purpose for which it was not designed. The court rejected the plaintiffs' assertion that the only appropriate legal action was a quiet title action pursuant to § 47-31 and that, as it had discussed in its decision on the attorney defendants' motion for summary judgment, the forcible entry and detainer action was not clearly a frivolous claim. In rendering summary judgment in favor of the trust and the LLC, the court observed that there was no support for the plaintiffs' claims that, along with the individual neighbor defendants, the trust and the LLC had initiated the underlying forcible entry and detainer action against the plaintiffs. As previously stated, the plaintiffs claim on appeal that in rendering summary judgment in the defendants' favor, the court improperly concluded that (1) the attorney defendants had probable cause to pursue the underlying forcible entry and detainer action; (2) the affidavits of the individual neighbor defendants were competent evidence of their special defense to the vexatious litigation counts of advice of counsel; (3) the trust and the LLC were not properly named as defendants because they were not parties to the underlying forcible entry and detainer action; and (4) the defendants' pursuit of the underlying action was not an abuse of process because the exclusive remedy available to the neighbor defendants was an action to quiet title. Our standard of review of a trial court's ruling on a motion for 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.... As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent.... When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue.... Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue. . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45].... Our review of the trial court's decision to grant [a] motion for summary judgment is plenary." (Citation omitted; internal quotations marks omitted.) Bonington v. Westport, 297 Conn. 297, 305, 999 A.2d 700 (2010). After a careful examination of the record, including a consideration of the comprehensive briefs and arguments of the parties, we conclude in accordance with the standard of review set forth previously in this opinion that the court did not err in granting the defendants' motions for summary judgment. Because the court's memoranda of decision fully address the arguments raised in the present appeal, we adopt its thorough and well reasoned decisions as a proper statement of the facts and the applicable law on these issues. See Rieffel v. Johnston-Foote, 165 Conn.App. at 401, 412, 139 A.3d 729 (2015) (appendices). It would serve no useful purpose for this court to repeat the analysis contained in the trial court's decisions. Riley v. Pierson, 126 Conn.App. 486, 492, 12 A.3d 581 (2011). The judgment is affirmed. APPENDIX BICH-HA HENRIETTE RIEFFEL ET AL. v. PENELOPE D. JOHNSTON-FOOTE ET AL. Superior Court, Judicial District of Stamford-Norwalk File No. CV-13-6019381 S Memorandum filed February 19, 2015 Proceedings Memorandum of decision on motions for summary judgment filed by named defendant et al. Motions granted . Peter M. Ryan , for the plaintiffs. Brian J. Farrell, Jr. , for the named defendant et al. Douglas R. Steinmetz , for the defendant Dan Tredwell et al. Kelley Franco Throop , for the defendant Diane Jones et al. Peter E. DeMartini , for the defendant Daniel W. Moger, Jr., et al. Opinion HON. TAGGART D. ADAMS, JUDGE TRIAL REFEREE. I BACKGROUND This case between neighbors living on a private road, known as Thrushwood Road, off of Indian Head Road in the Riverside section of Greenwich, Connecticut, should be no more than a tempest in a teapot, but instead it has developed into a major conflagration, which, as of October, 2014, reached 130 filings reflected in the court's electronic file in barely over a year. The origin of the dispute was a decision by the plaintiffs to remove what they call a wood stanchion, and the defendants describe as a small open shed, on their property, located at 95 Indian Head Road near the head of Thrushwood Road, which contained the plaintiffs' mailbox and the mailboxes serving five other residences on Thrushwood. The defendants, who are the owners or inhabitants of those five residences, protested the rather curt announcement by the plaintiffs, but the shed was removed, and the neighbors' mailboxes were left on their respective properties. Subsequently, the neighbors (now defendants, and referred to herein as the neighbor defendants) consulted with Attorney Daniel W. Moger, Jr., who advised them to pursue a forcible entry and detainer suit, pursuant to General Statutes § 47a-43, in the housing session of the Superior Court in Norwalk. With the neighbor defendants' consent, such a lawsuit was prepared and filed by Moger on January 29, 2013, on behalf of the defendants, and subsequently served on the plaintiffs herein. Shortly thereafter, on February 7, 2013, a hearing occurred in the matter before Hon. Jack L. Grogins, judge trial referee, at which time the plaintiffs presented a motion for summary judgment dismissing the action. The hearing was adjourned without judicial action, although apparently Judge Grogins evidenced some skepticism of the entry and detainer claim. On February 19, 2013, Moger, acting for his clients, withdrew the lawsuit. The plaintiffs' twenty-four page second amended complaint (Docket Entry 111.00), which is the operative complaint in this case, asserts claims of (1) common-law vexatious litigation; (2) statutory vexatious litigation pursuant to General Statutes § 52-568(1) (double damages); (3) statutory vexatious litigation pursuant to § 52-568(2) (triple damages based on malice); (4) common-law abuse of process; and (5) common-law abuse of process with malice against Sue Baker, the owner and resident of 81 Indian Head Road, against the Penelope Johnston-Foote Family Qualified Personal Residence Trust, Penelope D. Johnston-Foote and Ray Foote, the owners and residents of property known as 87 Indian Head Road against LWT Associates LLC Lucinda W. Tredwell and Dan Tredwell, owners and residents of property known as 89 Indian Head Road, against Michael B. Jones and Diane Jones, owners and residents of 93 Indian Head Road, and against Attorney Moger and his business entity. All of the defendants have moved for summary judgment dismissing the claims against them. This memorandum will discuss and decide the motions made by the neighbor defendants, namely, the Johnston-Foote family trust, Johnston-Foote and Foote (168.00), LWT Associates, LLC, and the Tredwells (177.00), Baker (179.00) and Michael Jones and Diane Jones (172.00). The plaintiffs have filed memoranda and two affirmations opposing the four motions (219.00, 221.00, 226.00, 228.00, 229.00 and 230.00). Moger and his law firm also seek summary judgment, and the plaintiffs oppose that motion, which will be dealt with in a separate decision. All motions were heard and argued on October 27, 2014. II SCOPE OF REVIEW Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000). Summary judgment "is appropriate only if a fair and reasonable person could conclude only one way." Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1995). "The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to judgment as a matter of law...." (Internal quotation marks omitted.) Appleton v. Board of Education, supra, at 209, 757 A.2d 1059. "A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 379, 260 A.2d 596 (1969). The trial court, in the context of a summary judgment motion, may not decide issues of material fact, but only determine whether such genuine issues exist. Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). "Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact [question] . a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue.... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue." (Internal quotation marks omitted.) Maffucci v. Royal Park Ltd. Partnership, 243 Conn. 552, 554, 707 A.2d 15 (1998). "[T]he party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Appleton v. Board of Education, supra, 254 Conn. at 209, 757 A.2d 1059 ; see generally Sic v. Nunan, 307 Conn. 399, 406, 54 A.3d 553 (2012) ; Mott v. Wal-Mart Stores East, LP, 139 Conn.App. 618, 624-25, 57 A.3d 391 (2012). III DISCUSSION A Vexatious Litigation Claims Each of the motions filed by the neighbor defendants contains one or more affidavits attesting to the individual's consultation with Attorney Moger about possible remedies concerning their mailbox situation, that the individuals disclosed all the relevant facts to Moger and relied on his advice. See exhibits B and C to Johnston-Foote motion; exhibits B and C to Jones motion; exhibits B and C to Tredwell motion; and exhibit B to Baker motion. Additionally, the neighbors' summary judgment motions rely on an affidavit with exhibits submitted by Attorney Moger in support of his own summary judgment motion. The Moger affidavit, dated February 14, 2014 (exhibit A to Docket Entry 157.00), includes information that he learned from consulting with his clients, such as the length of time certain of their mailboxes had been located at the covered stand (i.e., for up to forty years). Moger Affidavit, ¶ 6. In opposition to the defendants' summary judgment motions, the plaintiff Bich-Ha Henriette Rieffel submitted an affirmation with exhibits along with an affirmation and exhibits by her attorney, Peter M. Ryan (Docket Entry 228.00). The plaintiffs have also submitted nearly identical memoranda opposing the nearly identical memoranda supporting the neighbor defendants' summary judgment motions. In all, the proliferation of memoranda, affidavits and exhibits, and changes and substitutions thereto, has made it extraordinarily difficult for the court, relying on only the electronic file used in the Superior Court, to separate the wheat from the chaff. The overriding issue with respect to the neighbor defendants' motions, and the opposition thereto, is the availability and effect of the advice of counsel defense pleaded as a special defense by the neighbor defendants. "Advice of counsel is a complete defense to an action of . vexatious suit when it is shown that the defendant . instituted his civil action relying in good faith on such advice, given after a full and fair statement of all facts within his knowledge or which he was charged with knowing. The fact that an attorney's advice was unsound or erroneous will not affect the result." Vandersluis v. Weil, 176 Conn. 353, 361, 407 A.2d 982 (1978) ; see also Shea v. Chase Manhattan Bank, N.A., 64 Conn.App. 624, 630, 781 A.2d 352 (2001). Several Superior Court cases have laid out five elements necessary to establish a valid advice of attorney defense. In Evans v. Testa Development Associates, Superior Court, judicial district of Hartford, Docket No. CV-01-806425, 2002 WL 725483 (March 26, 2002) (Hon. Robert J. Hale, judge trial referee) (31 Conn. L. Rptr. 535, 536 ), the court quoted with approval: " '[T]he defense [of advice of counsel] has five essential elements. First, the defendant must actually have consulted with legal counsel about his decision to institute a civil action . Second, the consultation with legal counsel must be based on a full and fair disclosure by the defendant of all facts he knew or was charged with knowing concerning the basis for his contemplated . action . Third, the lawyer to whom the defendant turns for advice must be one from whom the defendant can reasonably expect to receive an accurate, impartial opinion as to the viability of his claim . The fourth element . is, of course, that the defendant, having sought such advice, actually did rely upon it . Fifth and finally, if all other elements of the defense are satisfactorily established, the defendant must show that his reliance on counsel's advice was made in good faith.' Internal quotation marks omitted. Infante v. Zurich American Ins. Co., Superior Court, judicial district of Fairfield, Docket No. 327422 (June 5, 2001) (Skolnick, J. )." This formulation is relied on by all the parties to this case. The plaintiffs and their counsel offer several arguments opposing the neighbor defendants' motions. It is argued by the plaintiffs that the neighbor defendants did not make full disclosure to their counsel and did not act in good faith. In their affidavits, the neighbor defendants state they gave Moger "any and all facts surrounding the circumstances of my mailbox," including its removal and placement on their properties. Given the fact that their attorney was aware of how long each mailbox had been in the wooden shed or on the stanchion, it appears to the court that full and fair disclosure was made. In Verspyck v. Franco, 274 Conn. 105, 874 A.2d 249 (2005), the Connecticut Supreme Court said: "Whether there was a full and fair disclosure of material facts as required by the advice of counsel defense is a question of fact"; Id., at 112, 874 A.2d 249, and quoting Mulligan v. Rioux, 229 Conn. 716, 748, 643 A.2d 1226 (1994), that a "jury was free to conclude that the defendants had not made a full and fair disclosure of the material facts within their knowledge to the prosecuting attorneys." In Mulligan, the plaintiffs presented evidence that affidavits prepared by the defendants in order to procure warrants were "replete with false statements and omissions of fact." Mulligan v. Rioux, supra, at 748, 643 A.2d 1226. Therefore, it was clearly a question to be presented to a jury for resolution. Here, however, that is not the case because the court finds no evidentiary support provided by the plaintiffs that the neighbor defendants' disclosure of facts to Attorney Moger was less than candid or incomplete. The issue of malice or bad faith is adverted to mainly in Mrs. Rieffel's affirmation. In that document (found at Docket Entry 228.00), particularly in paragraph 19, Mrs. Rieffel specifies numerous incidents and occurrences during her residence on Thrushwood Road that in her words "allow an inference of malice on the part of the [neighbor] defendants [and if reported to Attorney Moger] allow an inference of malice attributable to Attorney Moger...." Rieffel Affirmation, ¶ 19 and 20. The court concludes that Mrs. Rieffel's affirmation does not provide an evidentiary basis for an assertion of bad faith or malice against the neighbor defendants. For the most part, the complaints described by Mrs. Rieffel evidence a prickly relationship with the neighbor defendants after the Rieffels moved to the Thrushwood Lane area in June, 2012. How much of this state of affairs resulted from Mrs. Rieffel's undated and somewhat peremptory letter stating that the neighbor defendants' mailboxes would be removed from her property by November 27, 2012, is unknown. Docket Entry 213.00, exhibit 24. At least one such complaint by Mrs. Rieffel seems highly overstated in describing a note left on her driveway as "threatening" when the note asked her to "please fill in the hole in our driveway. Your neighbor." Id., exhibit 37. The court turns to the five "essential" elements of the advice of counsel defense. There is no material fact in question that the neighbor defendants did consult with Attorney Moger about instituting the entry and detainer action. This is confirmed in the affidavits of Attorney Moger and various neighbor defendants, and there is no evidence to the contrary. Second, these affidavits evidence full disclosure by the clients, and there is no evidentiary basis for Mrs. Rieffel's hints to the contrary. The plaintiffs' counsel's suggestion that because the neighbor defendants' affidavits employ the same language there must have been collusion is not evidence that the affidavits are untrue. The court is not aware of any evidence that Attorney Moger was not an attorney from whom the neighbor defendants could receive an accurate, impartial opinion on the merits of their claim, and the plaintiffs do not contend otherwise. E.g., Opposition to Johnston-Foote motion (Docket Entry 230.00), p. 19. The fourth element requires the neighbor defendants to have actually relied on Attorney Moger's advice. There has been no evidentiary basis offered by the plaintiffs to create a material fact issue about this element, and obviously the neighbor defendants did rely on Moger's advice by consenting to the commencement of the forcible entry and detainer action. The fifth element is whether reliance by the neighbor defendants on Moger's advice was in good faith. The plaintiffs' opposition to the neighbor defendants' motions is focused on the arguments made at pp. 41-45 of the plaintiffs' brief opposing Attorney Moger's summary judgment motion. See Docket Entry 230.00, p. 13. These pages are found at Docket Entry 218.00 (for some reason, parts of the lengthy memoranda are located at Docket Entries 216.00, 217.00 and 218.00). But the arguments made therein are directed primarily at the lack of probable cause for the entry and detainer claim, and some statements made by Attorney Moger. Bad faith by the neighbor defendants cannot be established by asserting that their attorney did not have probable cause for the action or by other statements by the attorney. Vandersluis v. Weil, supra, 176 Conn. at 361, 407 A.2d 982. In sum, despite the lengthy and occasionally convoluted arguments and assertions of the plaintiffs, the neighbor defendants have established that, on the basis of the undisputed facts and applicable law, they are entitled to the absolute defense of reliance on advice of counsel as to the claims of vexatious litigation. B Abuse of Process Claims The plaintiffs have asserted claims of abuse of process and abuse of process with malice against each of the neighbor defendants. The gravamen of an abuse of process claim "is the use of a legal process . against another primarily to accomplish a purpose for which it is not designed...." (Emphasis in original; internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 403, 876 A.2d 522 (2005), citing 3 Restatement (Second), Torts § 682 (1977). In QSP, Inc. v. Aetna Casualty & Surety Co., 256 Conn. 343, 773 A.2d 906 (2001), the Connecticut Supreme Court pointed out that the distinction between a vexatious suit claim and one for abuse of process was that the former focused on the purported wrongful issuance of process while the latter concerned the subsequent proceedings. Id., at 360-61 n. 16, 773 A.2d 906. The plaintiffs assert that the neighbor defendants' suit was brought to settle or quiet title and was more akin to a suit for a declaratory judgment. See, e.g., Docket Entry 113.00, fourth count, ¶ 4(a) and (b). The neighbor defendants never sought legal title to the plaintiffs' real property, and to assert, as the plaintiffs do, that a quiet title action pursuant to General Statutes § 47-31 is the only appropriate legal action is incorrect. Indeed, as pointed out in the discussion of probable cause in connection with Attorney Moger's motion for summary judgment, the entry and detainer suit was not clearly a frivolous claim. Furthermore, the neighbor defendants hardly "abused" process, since their action was withdrawn with their consent a mere three weeks after its commencement. The court finds that on the undisputed material facts and the applicable law, the plaintiffs' claims of abuse of process should be dismissed. IV CONCLUSION The motions for summary judgment dismissing the plaintiffs' second amended complaint made by the neighbor defendants (Docket Entries 168.00, 177.00, 179.00 and 172.00) are granted. APPENDIX BICH-HA HENRIETTE RIEFFEL ET AL. v. PENELOPE D. JOHNSTON-FOOTE ET AL. Superior Court, Judicial District of Stamford-Norwalk File No. CV-13-6019381 S Memorandum filed February 19, 2015 Proceedings Memorandum of decision on motion for summary judgment filed by defendant Daniel W. Moger, Jr., et al. Motion granted . Peter M. Ryan , for the plaintiffs. Peter E. DeMartini , for the defendant Daniel W. Moger, Jr., et al. Brian J. Farrell, Jr. , for the named defendant et al. Douglas R. Steinmetz , for the defendant Dan Tredwell et al. Kelley Franco Throop , for the defendant Diane Jones et al. Opinion HON. TAGGART D. ADAMS, JUDGE TRIAL REFEREE. I BACKGROUND Attorney Daniel W. Moger, Jr., and his business entity, Daniel W. Moger, Jr., LLC (collectively, Moger), have moved for summary judgment dismissing claims of common-law and statutory vexatious litigation, pursuant to General Statutes § 52-568, and abuse of process, contained in the second amended complaint of the plaintiffs. The background of this litigation involves the announcement by the plaintiff Mrs. Bich-Ha Henriette Rieffel of plans to remove a shed or stanchion located on the plaintiffs' property containing the plaintiffs' mailbox and those of five neighboring residences, leaving the appropriate mailbox on each neighbor's driveway, and then carrying out that plan in spite of the unanimous objections of the neighbors. The plaintiffs and the neighbors all own residences on a private road known as Thrushwood Road, off of Indian Head Road, in the Riverside section of Greenwich, Connecticut. The neighbors, all of whom are also defendants in this case, retained Moger to protect their interests. After certain communications between Moger and the plaintiffs' attorney, and the filing by the plaintiffs of a notice of termination of any rights the neighbors had in the former location of their mailboxes (Moger Affidavit, exhibit A-5, found as exhibit A to Docket Entry 157.00), Moger recommended to his clients the institution of a legal action against the plaintiffs pursuant to General Statutes § 47a-43. The neighbors authorized the suit against the plaintiff Mr. Marc A. Rieffel, and Mrs. Rieffel; the unsigned summons and complaint was presented to Judge William J. Wenzel, who signed the summons on January 29, 2013, and that summons and the complaint, signed by Moger, were served on the Rieffels thereafter, and a court date of February 7, 2013, was set at the housing session in Norwalk. On that date, Hon. Jack L. Grogins, judge trial referee, apparently expressed some doubts about the strength of the case, and a motion to dismiss was filed on behalf of the Rieffels. Another court date was set, and in the meantime Moger consulted with his clients, and a withdrawal of the entry and detainer case occurred on February 19, 2013. The Rieffels commenced this action against Moger and the neighbors who were plaintiffs in the entry and detainer case (neighbor defendants). In addition, a family trust and an LLC were named as defendants, although they were not parties to the entry and detainer case. The neighbor defendants have also moved for summary judgment dismissing the claims against them, and those motions are the subject of a separate memorandum of decision. II SCOPE OF REVIEW Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000). Summary judgment "is appropriate only if a fair and reasonable person could conclude only one way." Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1995). "The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to judgment as a matter of law...." (Internal quotation marks omitted.) Appleton v. Board of Education, supra, at 209, 757 A.2d 1059. "A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 379, 260 A.2d 596 (1969). The trial court, in the context of a summary judgment motion, may not decide issues of material fact, but only determine whether such genuine issues exist. Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). "Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact [question] . a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue.... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue." (Internal quotation marks omitted.) Maffucci v. Royal Park Ltd. Partnership, 243 Conn. 552, 554, 707 A.2d 15 (1998). "[T]he party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Appleton v. Board of Education, supra, 254 Conn. at 209, 757 A.2d 1059 ; see generally Sic v. Nunan, 307 Conn. 399, 406, 54 A.3d 553 (2012) ; Mott v. Wal-Mart Stores East, LP, 139 Conn.App. 618, 624-25, 57 A.3d 391 (2012). III DISCUSSION A Vexatious Litigation A vexatious litigation claim may be brought under the common law and pursuant to statute. Section 52568 provides that a person who "commences and prosecutes" a civil action "without probable cause" shall be liable for double damages, and one who does so without probable cause and "with a malicious intent" shall be liable for treble damages. Under the common law, the claim requires lack of probable cause and malice. The main requirement for a vexatious suit claim, whether statutory or otherwise, is lack of probable cause. Whether the facts establish the existence of probable cause or otherwise, is a question of law. DeLaurentis v. New Haven, 220 Conn. 225, 252, 597 A.2d 807 (1991). When the facts themselves are disputed, a court may submit the question of probable cause to the jury as a mixed question of fact and law. Id., at 252-53, 597 A.2d 807. Probable cause requires "a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it." (Internal quotation marks omitted.) Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, 281 Conn. 84, 102, 912 A.2d 1019 (2007), quoting Wall v. Toomey, 52 Conn. 35, 36 (1884). Probable cause may be present even where a suit lacks merit; even when a suit fails, the plaintiff in a vexatious litigation case must separately show lack of probable cause. Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, supra, at 103, 912 A.2d 1019, citing and quoting from Roberts v. Sentry Life Ins. Co., 76 Cal.App.4th 375, 382, 90 Cal.Rptr.2d 408 (1999), review denied, 2000 Cal. LEXIS 1059 (February 16, 2000). The rationale for the relatively low standard is to not discourage the willingness of lawyers to challenge precedent and pursue novel theories. Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, supra, at 104, 912 A.2d 1019. It is not disputed that Moger relied most heavily on two Appellate Court cases in concluding there were grounds for the entry and detainer claim against the Rieffels. In Evans v. Weissberg, 87 Conn.App. 180, 866 A.2d 667 (2005), the Appellate Court affirmed a Superior Court judgment in favor of a plaintiff who had brought an entry and detainer action against her neighbors, who had erected a fence on a six foot strip of land, the ownership of which was disputed. The neighbors' fence barred the plaintiff's access to an area definitely on her property containing a propane tank, an outdoor shower with a privacy fence and some plants. The trial court found that the plaintiff had previously exercised dominion and control over the six foot strip, and the neighbors' fence interfered with the plaintiff's access to the area that she indisputably owned containing the propane tank and shower. Moger asserts that Evans supported an entry and detainer claim even when the ownership of the land is disputed. Moger Affidavit, ¶ 13, and exhibit A-II, found at Docket Entry 157.00, exhibit A. In an earlier case, Bowman v. Williams, 5 Conn.App. 235, 497 A.2d 1015 (1985), appeal dismissed, 201 Conn. 366, 516 A.2d 1351 (1986), the Appellate Court affirmed a trial court decision in favor of the plaintiff's entry and detainer claim with respect to the defendants' removal of the plaintiff's belongings from office space he had leased from the defendants, but reversed the judgment in favor of the plaintiff in connection with the defendants' blocking of a boat slip also leased from the defendants. The Appellate Court held there was error when the trial court found the boat slip was "an appurtenance" of the office space. The Appellate Court said the plaintiff had rented the boat slip for a boat chartering service while subsequently leasing the office space for a marine brokerage business and held: "Since the boat slip did not pass as an incident to the office space, nor does it appear that it was essential to or reasonably necessary to the full beneficial use of the office and storage space, it cannot be deemed an appurtenance of the office." Id., at 239-40, 497 A.2d 1015. Moger concluded that Bowman 's discussion of appurtenances supported his clients' claim with respect to their mailboxes. Moger Affidavit, ¶ 14. In opposing summary judgment, the plaintiffs contend that a mailbox is not an appurtenance because it is not necessary to the full beneficial use of a dwelling, pointing out that there is no law requiring a single-family residence to have a mailbox. See Plaintiffs' Memorandum, p. 18 (found at Docket Entries 217.00, 218.00 and 219.00). They also argue that the neighbor defendants' mailboxes might be located on their own properties rather than the Rieffels' property. Plaintiffs' Memorandum, pp. 18-19. In assessing whether probable cause existed for the institution of the subject entry and detainer suit, this court does not have to decide the merits of a claim of appurtenance. Rather, it is obligated to determine whether there were facts essential under the law for an attorney "to entertain" the claim. This court finds there existed probable cause for the entry and detainer suit Mailboxes are not a luxury. They are related and incident to the use and enjoyment of a personal residence, and the connection between a mailbox and the residence is "direct and apparent." Graham v. Walker, 78 Conn. 130, 136, 61 A. 98 (1905). Indeed, it is not often, if ever, that one sees a mailbox that is not related to a residence, business or other specific address. As the Bowman court recognized, it is not necessary, in the context of property law, that something be "annexed, joined, or attached to be appurtenant." (Internal quotation marks omitted.) Bowman v. Williams, supra, 5 Conn.App. at 239, 497 A.2d 1015, citing Waterbury Lumber & Coal Co. v. Asterchinsky, 87 Conn. 316, 320, 87 A. 739 (1913). This court's reading of Bowman persuades it to consider that the very facts and rationale that led the Appellate Court to reverse the judgment for the plaintiff with respect to the boat slip, provide a reasonable basis for Moger to consider the entry and detainer suit against the plaintiffs. In an entry and detainer action the plaintiff must show, not necessarily ownership or legal right to property, but actual physical control or possession. Fleming v. Bridgeport, 284 Conn. 502, 514, 935 A.2d 126 (2007). An entry and detainer action is commenced by a possessor who has been dispossessed by an owner without benefit of proper legal proceedings. Zapata v. Mora, 121 Conn.App. 790, 793, 996 A.2d 1203, cert. denied, 298 Conn. 905, 3 A.3d 74 (2010). It seeks to discourage an owner from resorting to self-help tactics so peace and good order may be maintained. Id. There is no material fact at issue that Moger's clients possessed and controlled their individual mailboxes at the covered shed or stanchion on a continuous basis for an extended period of time, until the Rieffels removed the shed and moved the mailboxes to the neighbor defendants' individual driveways. Therefore, the court finds that Moger had probable cause to recommend to his clients and to commence the entry and detainer suit against the plaintiffs in this case. The existence of probable cause eliminates the major necessary predicate for the various vexatious suit claims asserted by the plaintiffs in the twenty-first through twenty-third counts of the plaintiffs' complaint. B Abuse of Process The plaintiffs' twenty-fourth count alleges that Moger's conduct constituted abuse of process in that the entry and detainer lawsuit was instituted for a purpose for which such a suit was not designed. Specifically, it is alleged that Moger attempted to settle or quiet title, which is not the purpose of § 47a-43. To settle or quiet title, it is alleged, may only be accomplished through an action pursuant to General Statutes § 47-31. It is further alleged that what Moger sought to do could only "be accomplished" by a declaratory judgment action pursuant to General Statutes § 52-29 and Practice Book § 17-54. "[T]he gravamen of the action for abuse of process is the use of a legal process . against another primarily to accomplish a purpose for which it is not designed...." (Emphasis in original; internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 403, 876 A.2d 522 (2005), citing 3 Restatement (Second), Torts § 682 (1977). The court is not persuaded that Moger or the neighbor defendants ever had the intent of quieting title. There is no such evidence in the record that they sought any legal ownership rights to any part of the Rieffels' property. What was sought was retention of their possessory rights to the mailboxes on the Rieffels' property. Therefore, the assertion that § 47-31 is the proper action because the Rieffels say it is a statute "allowing a landowner who is put out of possession to maintain an action asserting his title" (Plaintiffs' Memorandum, p. 46) is simply incorrect. In Mozzochi v. Beck, 204 Conn. 490, 529 A.2d 171 (1987), the Connecticut Supreme Court held that an attorney's duty not to pursue "utterly groundless" litigation does not give rise to a viable claim for abuse of process unless there was specific misconduct intended to cause "specific injury outside of the normal contemplation of private litigation." Id., at 497, 529 A.2d 171. No such specific injury has even been alleged, and there is no evidentiary basis for its existence. The court finds that a suit under the entry and detainer statute against the plaintiffs was an appropriate use of the statute's remedies in the circumstances facing Moger and his clients. This is not to say the suit would have been successful. However, it is to say the suit was not an abuse of process. IV CONCLUSION Moger's motion for summary judgment is granted, and the plaintiffs' claims in their twenty-first through twenty-fourth counts are dismissed. For purposes of this appeal, we refer to Johnston-Foote, Foote, the Tredwells, the Joneses, Baker, the trust, and the LLC as the neighbor defendants. We refer to Moger and his law firm as the attorney defendants. The owner of the property on which Johnston-Foote and Foote resided was the trust. The owner of the property on which the Tredwells resided was the LLC. General Statutes § 47a-43 provides in relevant part: "(a) When any person (1) makes forcible entry into any land, tenement or dwelling unit and with a strong hand detains the same, or (2) having made a peaceable entry, without the consent of the actual possessor, holds and detains the same with force and strong hand, or (3) enters into any land, tenement or dwelling unit and causes damage to the premises or damage to or removal of or detention of the personal property of the possessor, or (4) when the party put out of possession would be required to cause damage to the premises or commit a breach of the peace in order to regain possession, the party thus ejected, held out of possession, or suffering damage may exhibit his complaint to any judge of the Superior Court. "(b) Such judge shall forthwith issue a summons to the party complained of . to answer to the matters contained in the complaint...." At oral argument before this court, Attorney Brian J. Farrell, Jr., representing Johnston-Foote, Foote and the trust, indicated that all of the offending mailboxes have been relocated and are no longer on the plaintiffs' property and that, other than this appeal, no cause of action concerning this dispute is pending. General Statutes § 52-568 provides: "Any person who commences and prosecutes any civil action or complaint against another, in his own name or the name of others, or asserts a defense to any civil action or complaint commenced and prosecuted by another (1) without probable cause, shall pay such other person double damages, or (2) without probable cause, and with a malicious intent unjustly to vex and trouble such other person, shall pay him treble damages." "An action for abuse of process lies against any person using a legal process against another in an improper manner or [primarily] to accomplish a purpose for which it was not designed.... Because the tort arises out of the accomplishment of a result that could not be achieved by the proper and successful use of process, the Restatement Second (1977) of Torts, § 682, emphasizes that the gravamen of the action for abuse of process is the use of a legal process . against another primarily to accomplish a purpose for which it is not designed.... Comment b to § 682 explains that the addition of primarily [to this definition] is meant to exclude liability when the process is used for the purpose for which it is intended, but there is an incidental motive of spite or an ulterior purpose of benefit to the defendant." (Citation omitted; emphasis in original; internal quotation marks omitted.) Mozzochi v. Beck, 204 Conn. 490, 494, 529 A.2d 171 (1987). Where an abuse of process claim is brought against an attorney, the standard is heightened in order to balance "the attorney's primary duty of robust representation of the interests of his or her client." Id., at 497, 529 A.2d 171. Specifically, in order to prevail on an abuse of process claim against an attorney, the plaintiff must allege "specific misconduct intended to cause specific injury outside of the normal contemplation of private litigation." Id. We find no authority distinguishing an abuse of process claim from an abuse of process claim with malice, and the nature of the damages sought by the plaintiffs under all of their abuse of process counts, with and without malice, is substantively the same. In rendering its decision, the court noted: "In all, the proliferation of memoranda, affidavits and exhibits, and changes and substitutions thereto, has made it extraordinarily difficult for the court, relying on only the electronic file used in the Superior Court, to separate the wheat from the chaff." The court issued two memoranda of decision on February 19, 2015. One addressed the four motions for summary judgment filed on behalf of the neighbor defendants. The other addressed the motion for summary judgment filed on behalf of the attorney defendants. The court found that Moger had relied heavily on Evans v. Weissberg, 87 Conn.App. 180, 866 A.2d 667 (2005), and Bowman v. Williams, 5 Conn.App. 235, 497 A.2d 1015 (1985), appeal dismissed, 201 Conn. 366, 516 A.2d 1351 (1986). The court concluded that Bowman provided a reasonable basis for Moger to consider bringing the entry and detainer action against the plaintiffs. Despite the plaintiffs' focus on the impropriety of the defendants' use of an action for forcible entry and detainer under these circumstances, the court was not required to decide the merits of the underlying forcible entry and detainer action in considering these motions for summary judgment. If, on the basis of the facts known to the attorney defendants, the filing of the prior action was objectively reasonable, the court necessarily determined that the litigation the plaintiffs were subject to was not unjustified. The following rationale is persuasive: "When the court has made such a determination, there is no persuasive reason to allow the plaintiff to go forward with its tort action even if it can show that its adversary's attorney did not perform as thorough an investigation or as complete a legal research job as a reasonable attorney may have conducted. Permitting recovery on such a basis would provide the plaintiff with a windfall; since the prior action was objectively tenable, the plaintiff could properly have been put to the very same burden of defense if its adversary had simply hired more thorough counsel." Rockwell v. Rockwell, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-13-5010935-S, 2015 WL 6684785 (October 14, 2015) (Stevens, J. ) (61 Conn. L. Rptr. 98, 101 ), quoting Sheldon Appel Co. v. Albert & Oliker, 47 Cal.3d 863, 883, 765 P.2d 498, 254 Cal.Rptr. 336 (1989). In Moger's affidavit, he averred that after the plaintiffs took the action of removing the stanchion and the mailboxes, his sole, immediate concern was restoring the ability of his clients to collect their mail in their usual manner and that he had not intended to file an action to quiet title. The amended complaint in no way distinguishes between the costs and benefits ordinarily associated with the pursuit of litigation and the burdens that the defendants in this case allegedly improperly inflicted upon the plaintiffs. See Mozzochi v. Beck, 204 Conn. 490, 497-98, 529 A.2d 171 (1987). The affidavits of the individual neighbor defendants that were submitted to the court by the neighbor defendants, Moger's affidavit, and the correspondence between the plaintiffs' counsel and Moger prior to the initiation of the underlying forcible entry and detainer action all support the court's finding that all material facts concerning the mailbox dispute had been disclosed to and discussed with Moger. The plaintiffs have made the conclusory assertion that the neighbor defendants did not convey to Moger all of the material facts, but the plaintiffs failed to point to any material omission or misstatement of fact made by any of the neighbor defendants in their discussions with Moger. Although the court, in a few instances, referred to its "dismissal" of the plaintiffs' claims, its judgment clearly grants the defendants' motions for summary judgment on all of the plaintiffs' claims. The plaintiffs have appealed from the granting of those motions. A joint brief was filed on behalf of the attorney defendants and another joint brief was filed on behalf of the neighbor defendants. Affirmed. Rieffel v. Johnston-Foote, 165 Conn.App. 391, 139 A.3d 729 (2016). Since the initial entry and detainer claim was not instituted by either the Johnston-Foote family trust or LWT Associates, LLC, neither of which was a party to that proceeding, the plaintiffs' claims against those entities in this action are dismissed for that reason alone, despite the plaintiffs' objection. See, e.g., Docket Entry 230.00, p. 26. Affirmed. Rieffel v. Johnston-Foote, 165 Conn.App. 391, 139 A.3d 729 (2016). General Statutes § 47a-43 reads in full: "(a) When any person (1) makes forcible entry into any land, tenement or dwelling unit and with a strong hand detains the same, or (2) having made a peaceable entry, without the consent of the actual possessor, holds and detains the same with force and strong hand, or (3) enters into any land, tenement or dwelling unit and causes damage to the premises or damage to or removal of or detention of the personal property of the possessor, or (4) when the party out of possession would be required to cause damage to the premises or commit a breach of the peace in order to regain possession, the party thus ejected, held out of possession, or suffering damage may exhibit his complaint to any judge of the Superior Court. "(b) Such judge shall forthwith issue a summons to the party complained of, directed to some proper officer, to notify him to appear at a specified time and place, within eight days from the exhibition of such complaint, in the superior court for the judicial district wherein the injury complained of was done, to answer to the matters contained in the complaint. "(c) Such summons shall be served upon the party complained of six days inclusive before the day appointed for trial. "(d) If, after service of such summons, the party complained of does not appear and defend, the judge shall proceed in the same manner as if he were present." The above finding makes it unnecessary for the court to rule on Moger's other arguments in favor of dismissal. These are: (1) he did not "commence" the suit because Judge Wenzel issued the summons pursuant to § 47a-43 (b) and (2) he did not "prosecute" the suit, but withdrew it shortly after commencement. The first argument seems strained not only because the statute requires the judge to issue the summons "forthwith," intimating a certain lack of discretion, but also because Moger signed the complaint and arranged for service on the Rieffels. Moger Affidavit, ¶ 20. The second argument might have some merit, as the law requires both initiation and prosecution. Nevertheless, almost three weeks passed from initiation and withdrawal, so, at best for Moger, it is a close question.

12485144

HADCO METAL TRADING CO., LLC v. BARCOL-AIR, LTD.

Hadco Metal Trading Co. v. Barcol-Air, Ltd.

2016-05-10

No. 37818.

773

774

139 A.3d 773

139

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

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

Fastcase

KELLER, PRESCOTT and CREMINS, J.

HADCO METAL TRADING CO., LLC v. BARCOL-AIR, LTD.

HADCO METAL TRADING CO., LLC v. BARCOL-AIR, LTD. No. 37818. Appellate Court of Connecticut. Argued April 4, 2016. Decided May 10, 2016. Mark T. Kelly, for the appellant (defendant). Jodi S. Tesser, for the appellee (plaintiff). KELLER, PRESCOTT and CREMINS, J.

279

1774

PER CURIAM. The defendant, Barcol-Air, Ltd., appeals from the judgment of the trial court granting the application for a prejudgment remedy filed by the plaintiff, Hadco Metal Trading Co., LLC, in the amount of $250,000. The defendant claims that the court improperly concluded that the purchase orders contained all of the relevant terms of the parties' agreement and that the defendant breached that agreement. Specifically, the defendant's only claim on appeal is that the court should have considered certain provisions of the Uniform Commercial Code (UCC), as codified in General Statutes § 42a-2-101 et seq., in interpreting the terms of the underlying agreement between the parties. The defendant, however, did not raise or cite the applicability of the UCC provisions to the trial court, and, thus, this issue is not properly preserved for appellate review. See Connecticut Bank & Trust Co. v. Munsill-Borden Mansion, LLC, 147 Conn.App. 30, 38-39, 81 A.3d 266 (2013). Accordingly, we decline to review the defendant's claim and affirm the judgment of the court granting the application for a prejudgment remedy. The judgment is affirmed. The plaintiff raised the preservation problem in its appellate brief, and the defendant failed to adequately respond to that argument in its reply brief. Further, at oral argument before this court, the defendant conceded that it had never brought to the trial court's attention the particular provisions of the UCC that it now relies upon to support its on appeal.

12485147

H-K PROPERTIES, LLC v. TOWN OF MANSFIELD PLANNING AND ZONING COMMISSION et al.

H-K Props., LLC v. Town of Mansfield Planning & Zoning Comm'n

2016-05-17

No. 37069.

787

797

139 A.3d 787

139

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 BISHOP, Js.

H-K PROPERTIES, LLC v. TOWN OF MANSFIELD PLANNING AND ZONING COMMISSION et al.

H-K PROPERTIES, LLC v. TOWN OF MANSFIELD PLANNING AND ZONING COMMISSION et al. No. 37069. Appellate Court of Connecticut. Argued Jan. 11, 2016. Decided May 17, 2016. Paul N. Gilmore, with whom, on the brief, was Christopher A. Klepps, Hartford, for the appellants (defendant East Brook F, LLC, et al.). Richard P. Weinstein, West Hartford, with whom was Sarah Black Lingenheld, Farmington, for the appellee (plaintiff). DiPENTIMA, C.J., and PRESCOTT and BISHOP, Js.

5344

33046

PRESCOTT, J. Ordinarily, an appeal in a zoning case must be commenced by an aggrieved party within fifteen days from the date the land use board publishes notice of its decision. General Statutes § 8-8(b). In subsection (r) of § 8-8, however, the legislature extended the appeal period from fifteen days to one year in cases in which the board failed to comply with a statutory or regulatory notice requirement concerning a public hearing or an action of the board. Resolution of this appeal requires us to consider the interplay of subsection (r) of § 8-8 with General Statutes § 8-7d (a), which authorizes land use boards to adopt regulations imposing additional notice requirements beyond the statutory requirements that obligate land use boards to give notice of public hearings or other actions of the board by newspaper publication. Specifically, we are asked to consider whether the longer appeal period set forth in § 8-8(r) applies if a planning and zoning commission adopts a regulation, presumably in accordance with § 8-7d (a), that requires special permit applicants, rather than the board itself, to provide written notice to all abutting property owners of the hearing date on the application and other information about the application, and the applicant fails to comply with that notice requirement. We conclude that, under the circumstances presented, the failure of the applicant to comply with the additional notice requirements did not trigger the longer appeal period set forth in § 8-8(r). Because the applicant did not file its appeal within fifteen days of publication of notice of the land use board's decision, the trial court improperly concluded that it had subject matter jurisdiction over this zoning appeal. Following our grant of certification, the defendants East Brook F, LLC, East Brook T, LLC, and East Brook W, LLC, whose application for a special permit to build an addition to the East Brook Mall (mall) was approved by the Town of Mansfield Planning and Zoning Commission (commission), appeal from the judgment of the trial court sustaining the appeal of the plaintiff, H-K Properties, LLC, which owns property abutting the mall. The defendants claim in their appeal to this court that the trial court improperly denied their motion to dismiss the underlying appeal as untimely because it improperly determined that the one year appeal period provided for in § 8-8(r) was applicable and that the plaintiff timely filed its appeal within that period. We agree with the defendants that the appeal was late because it was not filed within the ordinary fifteen day appeal period, and that the court, therefore, lacked subject matter jurisdiction over the appeal. Accordingly, we reverse the judgment of the trial court and remand the case with direction to dismiss the plaintiff's appeal. The following facts and procedural history are relevant to our resolution of this appeal. The defendants filed a special permit application with the commission dated December 1, 2011. The application sought permission to build a 14,528 square foot addition to the existing mall, located on Route 195 in Mansfield, and to construct a separate 3,200 square foot building on the northeast corner of the mall property. The defendants checked a box on the application form acknowledging that they would send "certified notice . to neighboring property-owners, as per the provisions of Article [5, § B(3)(c) of the Mansfield Zoning Regulations]," but subsequently failed to do so. The plaintiff owns property that abuts the north side of the mall property. The commission scheduled a public hearing on the application for January 3, 2012. The commission published notice of the hearing in the Willimantic Chronicle on December 20, 2011, and again on December 28, 2011. The public hearing commenced on the date noticed and was continued to and then closed on February 6, 2012. No party came forward during the public hearing to speak in opposition to the special permit application. The commission granted the application on February 21, 2012, with certain conditions. Pursuant to General Statutes § 8-28, notice of the commission's decision was published in the Willimantic Chronicle on February 27, 2012. Nearly eight months later, on October 26, 2012, the plaintiff commenced an appeal to the Superior Court from the commission's decision. In its appeal, the plaintiff alleged that it was an abutting property owner aggrieved by the granting of the defendant's application because it had easement rights over the mall property that would be adversely affected by the proposed development. The plaintiff claimed that the commission improperly granted the defendants' special permit application because neither the defendants nor the commission had provided the plaintiff with notice as required by the Mansfield Zoning Regulations (regulations) or by statute. Article 5, § B(3)(c) of the regulations is titled "Notification of Neighboring Property Owners," and provides: "To ensure ample opportunity for neighborhood opinion to be expressed, the applicant shall be responsible for notifying in writing all property owners within 500 feet of the perimeter boundaries of the subject lot(s). Such notice, which shall be sent by certified mail at least [ten] days prior to the date of the scheduled Public Hearing, shall include the statement of use received by the Commission, the date and time of the scheduled Public Hearing and the fact that the subject plans are on file in the Mansfield Planning Office. A copy of the applicant's notice to neighboring property owners and a listing of the property owners notified shall be filed in the Mansfield Planning Office at least five (5) days prior to the Public Hearing." The plaintiff alleged that its lack of notice, actual or otherwise, thwarted it of its opportunity to be heard in opposition to the application. The defendants filed a motion to dismiss the appeal for lack of subject matter jurisdiction, arguing that the plaintiff had filed its appeal more than fifteen days after publication of the commission's decision and, thus, outside of the prescribed appeal period set forth in § 8-8(b), a jurisdictional defect. The plaintiff filed an opposition, arguing that, because the defendants never provided it with proper written notice pursuant to the commission's regulations and the commission failed to ensure that the defendants had complied, it was permitted to file an appeal within one year of the zoning decision in accordance with § 8-8(r). Although the defendants stipulated that they had not sent written notice to the plaintiff as required, they argued that the plaintiff was not entitled to file its appeal within the extended one year period set forth in § 8-8(r) because that statute is triggered only by a land use board's failure to meet notice requirements, and the commission had met all of its notice obligations. Following two days of hearings, the court, Berger, J., denied the motion to dismiss, agreeing with the plaintiff's argument and concluding that the commission had a duty to ensure that the plaintiff received written notice pursuant to the regulation that it had adopted pursuant to § 8-7d (a), despite having delegated the responsibility for service of notice to the defendants. According to the court, the commission's failure to ensure compliance by the defendants extended the time period in which to appeal pursuant to § 8-8(r). The defendants moved for reconsideration, which the court denied. On February 14, 2014, the court, referencing its August 6, 2013 memorandum of decision denying the motion to dismiss, issued an order sustaining the plaintiff's appeal. The court indicated that the commission's decision was invalid because proper notice was not provided to the plaintiff, and it ordered the matter "remanded to the commission to commence the proceedings anew giving proper notice." The defendants filed a petition for certification to appeal in accordance with § 8-8(o ), which this court granted. This appeal followed. The defendants claim that the trial court improperly denied their motion to dismiss the underlying appeal as untimely on the basis of an erroneous determination that the extended appeal period provided for in § 8-8(r) was applicable. For the reasons that follow, we agree. We begin our analysis with our standard of review as well as other applicable legal principles. "A motion to dismiss . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court.... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.... [O]ur review of the court's ultimate legal conclusion and resulting [determination] of the motion to dismiss [is] de novo." (Internal quotation marks omitted.) R.C. Equity Group, LLC v. Zoning Commission, 285 Conn. 240, 248, 939 A.2d 1122 (2008). "Administrative agencies [such as the commission] are tribunals of limited jurisdiction and their jurisdiction is dependent entirely upon the validity of the statutes vesting them with power and they cannot confer jurisdiction upon themselves.... [It] is clear that an administrative body must act strictly within its statutory authority.... No administrative or regulatory body can modify, abridge or otherwise change the statutory provisions under which it acquires authority unless the statute specifically grants it that power." (Citations omitted; internal quotation marks omitted.) MacKenzie v. Planning & Zoning Commission, 146 Conn.App. 406, 426, 77 A.3d 904 (2013). Likewise, "[t]here is no absolute right of appeal to the courts from a decision of an administrative agency.... Appeals 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. " (Citations omitted; emphasis added; internal quotation marks omitted.) Brookridge District Assn. v. Planning & Zoning Commission, 259 Conn. 607, 611-12, 793 A.2d 215 (2002). "A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created." Bridgeport Bowl-O-Rama, Inc. v. Zoning Board of Appeals, 195 Conn. 276, 283, 487 A.2d 559 (1985). "[S]tatutory appeal provisions are mandatory and jurisdictional in nature, and, if not complied with, the appeal is subject to dismissal." (Internal quotation marks omitted.) Fedus v. Planning & Zoning Commission, 278 Conn. 751, 760, 900 A.2d 1 (2006). Our Supreme Court has "uniformly held that failure to file a zoning appeal within the statutory time period deprives the trial court of jurisdiction over the appeal." Upjohn Co. v. Zoning Board of Appeals, 224 Conn. 96, 102, 616 A.2d 793 (1992). Our analysis entails the construction of both the General Statutes and the commission's zoning regulations, which raises questions of law over which we exercise plenary review. Zimnoch v. Planning & Zoning Commission, 302 Conn. 535, 547, 29 A.3d 898 (2011). We construe zoning regulations in the same manner as we construe statutes, following the ordinary rules of statutory construction. Schwartz v. Planning & Zoning Commission, 208 Conn. 146, 153, 543 A.2d 1339 (1988). In construing a statute or regulation, "[o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply.... In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.... The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation." (Internal quotation marks omitted.) Tayco Corp. v. Planning & Zoning Commission, 294 Conn. 673, 679, 986 A.2d 290 (2010). "Common sense must be used in construing [zoning regulations], and we assume that a rational and reasonable result was intended by the local legislative body." Spero v. Zoning Board of Appeals, 217 Conn. 435, 441, 586 A.2d 590 (1991). "Because zoning regulations are in derogation of common-law property rights, they must be strictly construed and not extended by implication. " (Emphasis added.) Graff v. Zoning Board of Appeals, 277 Conn. 645, 653, 894 A.2d 285 (2006). With these principles in mind, we turn to the primary issue raised on appeal-namely, whether the plaintiff timely commenced its appeal of the commission's decision to grant the defendants' special permit application, or whether the court should have dismissed the appeal for lack of subject matter jurisdiction because it was commenced outside of the applicable statutory appeal period. We conclude that the plaintiff's appeal was filed late and that the court should have granted the defendants' motion to dismiss the appeal. The commission rendered its decision granting the defendants' special permit application on February 21, 2012. Pursuant to § 8-8(b), unless one of the exceptions enumerated therein applies, any person aggrieved by a decision on a special permit application must appeal to the Superior Court within fifteen days from the date that notice of the decision is published. Requirements for publishing notice are set forth in General Statutes § 8-3c. Notice of the commission's decision granting the defendants' application was timely published in the local newspaper on February 27, 2012. The plaintiff has never claimed any defect with that published notice, and, accordingly, it was afforded proper constructive notice of the commission's decision, which is all that is expressly required by statute and satisfies the principle of fundamental fairness in administrative proceedings. See Jarvis Acres, Inc. v. Zoning Commission, 163 Conn. 41, 47, 301 A.2d 244 (1972) ( "[w]hat is required is not actual notice, but, rather, constructive notice"). Accordingly, in the absence of a statutory exception to § 8-8(b), the plaintiff should have commenced its appeal on or before March 13, 2012. The plaintiff's appeal was not commenced, however, until October 26, 2012. The plaintiff nevertheless contends, and the trial court agreed, that because the plaintiff did not receive written notice from the defendants in accordance with the town's zoning regulations and the commission failed to ensure compliance with the regulations, it was permitted, pursuant to § 8-8(r), to file its appeal anytime within one year of the date of the commission's decision granting the application. Accordingly, the plaintiff contends that its October 26, 2012 appeal was timely. We are not persuaded. In considering whether § 8-8(r) is applicable under the facts presented, we turn first to the language of the statute. Section 8-8(r) provides: "In any case in which a board fails to comply with a requirement of a general or special law, ordinance or regulation governing the content, giving, mailing, publishing, filing or recording of any notice either of a hearing or of an action taken by the board, any appeal or action by an aggrieved person to set aside the decision or action taken by the board on the grounds of such noncompliance shall be taken not more than one year after the date of that decision or action." (Emphasis added.) As previously noted, by statutory definition, the "board" in the present case is the commission. See General Statutes § 8-8(a)(2) ; see also footnote 1 of this opinion. Accordingly, § 8-8(r) extends the time to file an appeal whenever "a board fails to comply" with a statute, regulation or ordinance pertaining to notice of either a public hearing or an action of the board. (Emphasis added.) General Statutes § 8-8(r). Because the effect of § 8-8(r) is to enlarge the ordinarily short fifteen day appeal period to a year, and, thus, to substantially expand appellate jurisdiction, we must construe the statute strictly in accordance with its terms. Having done so, we conclude that the plain language of the statute belies reliance upon it as a basis for permitting the plaintiff to commence its appeal more than seven months beyond the fifteen day appeal period. First, it is undisputed that it was the defendants, not the commission, that failed to give the plaintiff the written notice required by article 5, § B(3)(c) of the town's zoning regulations, which provides in relevant part that "the applicant shall be responsible for notifying in writing all [neighboring] property owners...."(Emphasis added.) Although the defendants certified as part of the application process that they would give the additional notice, they concede that they never did so. The plain and unambiguous language of § 8-8(r), nevertheless, indicates that the one year appeal period is triggered only when the commission itself fails to comply with a notice requirement. The commission was required by statute only to give constructive notice by publication of the public hearing on the application. Likewise, as previously discussed, the commission was required by statute to publish notice of its action, i.e., its decision, on the application. The commission complied with both requirements. If the legislature had wanted to extend the scope of § 8-8(r) to encompass instances in which someone other than the board failed to provide notice in accordance with law, it could have done so explicitly. Our role is not to second-guess the wisdom of the language used by the legislature, but to give effect to its intent. Lash v. Aetna Casualty & Surety Co., 236 Conn. 318, 329 n. 15, 673 A.2d 84 (1996). The plaintiff and the trial court rely heavily on the fact that, pursuant to § 8-7d (a), the commission chose to adopt a regulation requiring special permit applicants to provide written notice to abutting landowners by certified mail. According to the trial court, once the commission did so, it assumed by implication a duty to ensure that the regulation was followed, and it was the breach of that duty that triggered § 8-8(r) in this case. In support of its position, the court relied heavily upon Wright v. Zoning Board of Appeals, 174 Conn. 488, 490-91, 391 A.2d 146 (1978). The court's reliance on Wright, however, is misplaced. In Wright, the primary issue on appeal had nothing to do with whether an applicant's failure to comply with an additional notice requirement adopted by a land use board should be attributable to the board for purposes of determining whether the one year appeal period contained in § 8-8(r) applies. The issue, rather, was whether the board had the authority to reverse sua sponte its action granting an application for a zoning variance upon discovering that a town ordinance, which required applicants seeking a variance to provide additional notice by placing a sign on the property in question, was not followed. Id., at 492, 391 A.2d 146. Wright holds that the board's action in reversing its prior granting of the variance was proper because failure to comply with a supplemental notice requirement rendered the board's action invalid, regardless of whether the board properly had effectuated notice by newspaper publication. Id. We do not dispute that the plaintiff in the present action had a colorable claim that the defendants' failure to follow through with its obligation under the regulation to provide the plaintiff with written notice rendered the commission's approval of the special permit application invalid. The threshold issue before us, however, is whether that claim needed to be raised in an appeal filed within the ordinary fifteen day appeal period or whether the one year appeal period in § 8-8(r) was applicable. Wright is silent as to that issue. Whether to adopt additional notice requirements was a choice that the legislature left entirely to the commission's discretion. There is no language in § 8-7d (a) indicating that if a commission chose to adopt a regulation requiring an applicant to provide additional notice, the commission was concomitantly assuming a duty to ensure compliance with the additional notice requirement adopted. More importantly, there is no language in § 8-7d (a) indicating that if the commission chose to impose on an applicant a supplemental notice requirement by regulation, the applicant's failure to comply with the supplemental notice provision would be attributable to the commission and trigger the lengthy appeal period in § 8-8(r). The only statutory obligation expressly imposed on the commission by § 8-7d (a) is that any additional notice regulation it chooses to adopt "shall include provisions that the notice be mailed to persons who own land that is adjacent to the land that is the subject of the hearing or be provided by posting a sign on the land that is the subject of the hearing, or both." The regulation adopted by the commission complied with those requirements. Indeed, the commission was not obligated to adopt any regulation at all pursuant to § 8-7d (a), and instead could have chosen to leave notice limited to publication in the newspaper. In the absence of any express language, we are unwilling to graft by implication onto § 8-7d (a) requirements or duties other than what are set forth in the statute on a commission or board, the breach of which would necessarily result in a three hundred fifty day extension of the appeal period. In other words, the language of § 8-7d (a) cannot be construed to include a requirement that the commission is responsible to ensure compliance with any notice requirement it chooses to impose on applicants. Because the commission did not fail to comply with any express notice requirements, § 8-8(r) is inapplicable here. Our decision to construe § 8-8(r) narrowly comports with the notion that zoning issues should be resolved with reasonable dispatch. See Carpenter v. Planning & Zoning Commission, 176 Conn. 581, 597, 409 A.2d 1029 (1979) (noting legislative purpose behind brief fifteen day appeal period is "speedy determination of the issues involved"). We have long recognized "the need for stability in land use planning and the need for justified reliance by all interested parties-the interested property owner, any interested neighbors and the town-on the decisions of the zoning authorities." (Internal quotation marks omitted.) Gangemi v. Zoning Board of Appeals, 255 Conn. 143, 149-50, 763 A.2d 1011 (2001). We note that, in the present case, by the time the appeal was taken, construction on an expensive project was well under way, and, in fact, has since been completed. There is no doubt that construction projects of this nature are often time sensitive; see, e.g., Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership, 157 Conn.App. 139, 147, 117 A.3d 876, certs. denied, 318 Conn. 902, 122 A.3d 631, 123 A.3d 882 (2015); and may rely upon financing that may only be available from lenders during specified time periods. Such factors reinforce our reluctance to expand the scope of § 8-8(r) beyond that expressly provided for by the plain and unambiguous language of the statute. Furthermore, we are conscious that it is the legislature who has the authority to determine the time limit for filing appeals and whether additional exceptions or restrictions are warranted, and the legislature's choice generally to impose a short fifteen day appeal period deserves due deference. See Carbone v. Zoning Board of Appeals, 126 Conn. 602, 607, 13 A.2d 462 (1940) ("[s]tatutes and special laws such as the one before us fixing a rather brief time in which appeals may be taken to the courts from the orders and decisions of administrative boards are evidently designed to secure in the public interest a speedy determination of the issues involved; and to 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"). In sum, we conclude that the court incorrectly denied the defendants' motion to dismiss on the basis of its determination that the appeal to the Superior Court was timely filed in accordance with § 8-8(r). Although, as acknowledged by the defendants, their failure to provide written notice was a procedural irregularity that potentially may have rendered the commission's approval of the application voidable, the plaintiff should have raised that issue in an appeal filed within the ordinary fifteen day appeal period given that the plaintiff had the benefit of the notice by publication as required by statute. The judgment is reversed and the case is remanded to the trial court with direction to dismiss the appeal. In this opinion the other judges concurred. General Statutes § 8-8(r) provides: "In any case in which a board fails to comply with a requirement of a general or special law, ordinance or regulation governing the content, giving, mailing, publishing, filing or recording of any notice either of a hearing or of an action taken by the board, any appeal or action by an aggrieved person to set aside the decision or action taken by the board on the grounds of such noncompliance shall be taken not more than one year after the date of that decision or action." As used in this statute, the term "board" refers to any "municipal zoning commission, planning commission, combined planning and zoning commission, zoning board of appeals or other board or commission the decision of which may be appealed pursuant to this section, or the chief elected official of a municipality, or such official's designee, in a hearing held pursuant to section 22a-250, whose decision may be appealed." General Statutes § 8-8(a)(2). General Statutes § 8-7d (a) provides in relevant part: "In all matters wherein a formal petition, application, request or appeal must be submitted to a . planning and zoning commission . and a hearing is required or otherwise held on such petition, application, request or appeal, such hearing shall commence within sixty-five days after receipt of such petition, application, request or appeal and shall be completed within thirty-five days after such hearing commences, unless a shorter period of time is required under this chapter, chapter 126, chapter 440 or chapter 446i. Notice of the hearing shall be published in a newspaper having a general circulation in such municipality where the land that is the subject of the hearing is located at least twice, at intervals of not less than two days, the first not more than fifteen days or less than ten days and the last not less than two days before the date set for the hearing. In addition to such notice, such commission . may, by regulation, provide for additional notice. Such regulations shall include provisions that the notice be mailed to persons who own land that is adjacent to the land that is the subject of the hearing or be provided by posting a sign on the land that is the subject of the hearing, or both...." (Emphasis added.) Although the commission was the named defendant in the appeal before the trial court, for the sake of clarity, we refer to it as the commission and to the three East Brook companies, which are the appellants in the present appeal, as the defendants. The defendants also claim in their appeal that the trial court improperly determined that, because they had failed to provide notice to the plaintiff in accordance with zoning regulations, the commission's decision granting their special permit was "without legal effect" and, therefore, that the court was required to remand the matter to the commission "to commence the proceedings anew giving proper notice." Additionally, they claim that even if we were to decide that a remand for a rehearing of the application was appropriate, we nevertheless should disavow the court's determination that the commission's decision was "without legal effect" and should order that the special permit granted by the commission remains valid pending a new hearing and any superseding ruling. Because we agree that the court should have granted the defendants' motion to dismiss the appeal as untimely, it is unnecessary to reach these additional claims of error. Construction of the separate out building later was determined to be unworkable, and the defendants withdrew their application as to that aspect of the plan prior to the closing of the public hearing. The plaintiff did not specify with which statute the commission allegedly failed to comply. As discussed later in this opinion, it is undisputed that the commission complied with its statutory obligations to publish notice in the local newspaper of the public hearing on the special permit application and of its decision granting the application. The plaintiff also filed a cross appeal challenging the remand order. This court later granted the defendants' motion to dismiss the cross appeal, however, on the ground that the plaintiff had failed to file a cross petition for certification pursuant to General Statutes § 8-8(o ) and Practice Book § 81-1(b) and (c). General Statutes § 8-8(b) provides in relevant part: "Except as provided in subsections (c), (d) and (r) of this section and sections 7-147 and 7-147i, any person aggrieved by any decision of a board, including . a special permit or special exception pursuant to section 8-3c, may take an appeal to the superior court for the judicial district in which the municipality is located.... The appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes...." General Statutes § 8-3c (b) provides in relevant part: "Notice of the decision of the commission [on an application for a special permit] shall be published in a newspaper having a substantial circulation in the municipality and addressed by certified mail to the person who requested or applied for a special permit or special exception, by its secretary or clerk, under his signature in any written, printed, typewritten or stamped form, within fifteen days after such decision has been rendered...." Although it does not factor into our decision, we note that correspondence between the plaintiff and the town, which was admitted into evidence at the hearing on the motion to dismiss, indicates that even if the plaintiff was unaware of the published notice, the plaintiff had actual notice of the decision, at the latest, by July 24, 2012. Although it is constructive notice and not actual notice that commences the appeal period, even if measured from the date of actual notice of the decision, the plaintiff waited more than three months to file its appeal. To the extent that there is language in Wright suggesting that the applicant's failure to comply with the notice regulation implicated the board's subject matter jurisdiction, which language also somehow provided a basis for attributing the regulatory notice failure directly to the board, that issue was not before the court, and the cases cited by the court in Wright involved failures to satisfy the statutory requirement of published notice. Furthermore, after Wright was decided in 1978, our Supreme Court has indicated that, whereas a board's failure to properly publish notice renders a land use board's action void, "failure to give personal notice to a specific individual is not a jurisdictional defect." Lauer v. Zoning Commission, 220 Conn. 455, 461-62, 600 A.2d 310 (1991) (clarifying distinction between "statutorily required published notice to the general public and statutorily required personal notice to specific individuals"); see also Koskoff v. Planning & Zoning Commission, 27 Conn.App. 443, 446, 607 A.2d 1146 (same), cert. granted, 222 Conn. 912, 608 A.2d 695 (1992) (appeal withdrawn); R. Fuller, 9B Connecticut Practice Series: Land Use Law and Practice (4th Ed. 2015) § 46.1, p. 7-8 ("[p]ersonal notice provisions can only be raised by persons entitled to receive notice, and if notice is not given the action taken is voidable and does not affect subject matter jurisdiction").

12485150

In re NATALIE S.

In re Natalie S.

2016-05-05

No. 38655.

824

836

139 A.3d 824

139

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 BEAR, Js.

In re NATALIE S.

In re NATALIE S. No. 38655. Appellate Court of Connecticut. Argued April 4, 2016. Decided May 5, 2016. Michael S. Taylor, Hartford, with whom was Marina L. Green, for the appellant (respondent mother). Benjamin Zivyon, assistant attorney general, with whom were Rachael M. Lavine, assistant attorney general, and, on the brief, George Jepsen, attorney general, Gregory T. D'Auria, solicitor general, for the appellee (petitioner). Joseph A. Geremia, Jr., Waterbury, for the minor child. DiPENTIMA, C.J., and SHELDON 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. May 5, 2016, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

7066

43591

BEAR, J. The respondent mother, Heather S., has appealed from the trial court's judgment that Natalie S., the minor child of the respondent and Matthew B. (father), was neglected, and granting custody and guardianship of her to the father. The respondent sets forth two claims in her appeal. The first is that Connecticut law requires that the Department of Children and Families (department) continue efforts to reunify Natalie with her, and that the court erred in failing to order final specific steps or that the department make such additional reunification efforts. The second is that the court erred in failing to require the department to conduct further investigation into the father's fitness before granting custody and guardianship of Natalie to him and in permitting him to remove her to North Carolina. The petitioner, the Commissioner of Children and Families, disputes the respondent's claims. We affirm the judgment. In the neglect petition, the petitioner alleged, pursuant to General Statutes § 46b-120 (6), that Natalie was being denied proper care and attention, physically, educationally, emotionally, or morally, and was being permitted to live under conditions, circumstances or associations injurious to her well-being. Six days after the neglect hearing was concluded, the court issued its October 29, 2015 memorandum of decision. In that memorandum, the court set forth the following summary of the history of the case and extensive, detailed findings of fact that it found by a fair preponderance of the evidence. "On April 16, 2015, the [petitioner] moved the court for an order of temporary custody of [Natalie] born [in December 2013]. [The petitioner] contemporaneously filed a neglect petition alleging that Natalie was being denied proper care and attention and was living under conditions or circumstances injurious to her well-being. [The respondent] was duly served at her usual place of abode by a state marshal on April 17, 2015, with the motion for an [order of temporary custody], the neglect petition, summons, notice, and an order to appear for hearing. Respondent father was identified as John Doe whose whereabouts were unknown. "[The respondent] appeared on April 17, 2015, for the preliminary [order of temporary custody] hearing. She was appointed counsel and advised. Thereafter, she waived the ten day hearing, agreed to have the [order of temporary custody] sustained and entered a pro forma plea [denying the allegations of neglect]. The case was continued to May 27, 2015, for proof of service and plea by John Doe. "On May 27, 2015, John Doe appeared. He identified himself as Matthew B. [father]. [He] was appointed counsel, advised, and a pro forma plea was entered. Based on the results of paternity tests ordered by the court, Matthew B. was adjudicated the biological father of Natalie on July 14, 2015, and a judgment of paternity entered. On August 17, 2015, he moved the court to vacate the [order of temporary custody] and transfer guardianship and custody of Natalie to him. The motion was continued and consolidated with the neglect trial. "The trial commenced on October 9, 2015. It continued on October 22 and thence to October 23, 2015, whereupon it concluded. [The respondent], the father, and their respective counsel were in attendance throughout the proceedings. [The petitioner] introduced numerous exhibits and testimony of two witnesses . investigative social worker Luti Vinca and . ongoing treatment social worker Rodney Moore. [The respondent] testified, introduced two exhibits into evidence, and called two witnesses . a 'stay at home mom' and foster mother, and . an expert in substance abuse counseling. The father introduced one exhibit and testified. He called no other witness[es]. The child's attorney submitted three exhibits and called no witness[es]. "The court has heard and carefully considered the testimony of all the witnesses; reviewed and carefully considered all of the exhibits; and has judicially noticed and thoroughly reviewed the verified petition. The credible and relevant evidence offered at trial, and a review of the judicially noticed court records, support the finding of the facts set forth below by a preponderance of the evidence presented." The court proceeded to make the following factual findings: "Notice of this proceeding was provided in accordance with the Practice Book. Neither parent claims Native American tribal affiliation. The court is unaware of any proceeding pending in any other court regarding custody of the minor child. This court has jurisdiction. "Due to reports of physical neglect, emotional neglect, substance abuse, mental health issues and criminal issues, [the department] has been involved with [the respondent] and Natalie since February 26, 2015. Three reports were received by [the department] expressing concern about [the respondent's] alleged substance abuse. On February 26, 2015, it was reported that Natalie was bitten by a dog, had two puncture wounds, was not dressed appropriately for the weather, [the respondent] kept alcohol in her purse, in her car, alcohol was smelled on her breath, and that [the respondent] had been seen driving with Natalie in her car. The allegations could not be substantiated. "On March 7, 2015, [the respondent] was found unresponsive in her vehicle by her roommate in a Dunkin Donuts lot. [The respondent] admitted she'd taken more Ambien than prescribed. On April 16, 2015, [the respondent] was arrested at 2:51 a.m. with Natalie in the car. She was charged with driving under the influence of alcohol and with risk of injury to a minor. "[The respondent's] criminal history includes arrests for possession of a controlled substance on September 4, 2009, felony possession of a controlled substance on May 20, 2010, disorderly conduct on August 30, 2014, and possession of a controlled substance in August, 2014. She has been diagnosed with mental health issues, alcohol abuse, and has been prescribed multiple different medications. "She has struggled with alcohol abuse for many years. By her own admission she has had 'substance issues since May 2008' and 'a significant substance abuse issue since 2012.' [The respondent] relocated with Natalie from North Carolina to Connecticut in the fall of 2014. She, admittedly, came to [Connecticut] in 2014 because she had alcohol and other substance problems and needed help. While in North Carolina she [had] received mental health treatment for anxiety, depression and [attention deficit hyperactivity disorder ]. She and Natalie moved in with [the respondent's] father whom she described as bipolar and a drug addict. "[The respondent] and the father met and began dating in Greensboro, [North Carolina] between 2011 and 2012. She refused having him listed on Natalie's birth certificate. She alleged he was very violent with her and kicked her down the stairs while she was pregnant with Natalie. She did not file a report or seek medical treatment concerning any purported abuse. Subsequently, she denied knowing the identity of Natalie's father. She reported she'd had sexual relations with multiple men while under the influence of alcohol when Natalie was conceived. [The respondent] has endeavored to have the father not be involved in Natalie's life and have no contact with her. The abuse allegations were vehemently denied by the father. [The respondent] offered no other evidence to substantiate the abuse allegations and thus they were unproven. "[The department] made reasonable efforts prior to April 16, 2015, to prevent the removal of Natalie from her home. Natalie was placed and remains in a nonrelative foster home. She is well cared for, doing well and is medically up to date. No concerns have been noted. [The department] made reasonable efforts to reunify Natalie with both [the respondent] and the father. Natalie is completely dependent upon a consistent, stable, sober caregiver to meet her daily and emergency needs. [The department] has established that [the respondent] has failed in that regard. "Specific steps to effectuate reunification of Natalie with [the respondent] were issued on April 23, 2015. [The department] made reasonable efforts to effectuate the reunification of Natalie with [the respondent]. [The department] offered [the respondent] casework services, visitation services, assessment services, substance abuse evaluations, screens, breathalyzers, and mental health assessment. "[The respondent] was admitted into an intensive inpatient treatment program at Rushford on May 5, 2015, for alcohol dependence. She completed the program on May 26, 2015. Her addiction counselor recommended she continue treatment in a relapse prevention or recovery program to keep fighting the disease. She failed to follow-up and relapsed during the weekend of July 25, 2015. She was then admitted on July 29, 2015, into a detox program followed by a twenty-eight day inpatient program. She completed the program and was admitted into an intensive inpatient treatment program. She completed the program at the McDonough House and was discharged on [August 29, 2015]. "Upon being discharged she was recommended for an intensive outpatient group.... Due to transportation issues presented by [the respondent], [she was afforded] the opportunity to attend a lower level relapse prevention group instead. She was to start the relapse prevention group . [in] September 2015. She failed to show up for the [relapse prevention group] on September 8, 2015. She failed to show up again on September 23, 2015. On September 24, 2015, she was a no show for her individual appointment with her counselor. On October 14, 2015, she again failed to show up for the [relapse prevention group]. "[The respondent] did not have stable housing prior to Natalie's birth. Nor has she had stable housing since Natalie's birth. She lived with a series of friends and boyfriends while in [North Carolina]. Upon moving to [Connecticut] she and Natalie lived with her father for a few months, until he put her out. While living with her father she exercised poor judgment by leaving Natalie at various times in the sole and unsupervised care of her father whom she alleges sexually assaulted her as a child. "After vacating her father's house in March 2015, she and Natalie moved in with a woman (Jessica) whom she'd met at [Alcoholics Anonymous] meetings. Thereafter, she moved in with Teague, a recovering alcoholic whom she'd also met at [Alcoholics Anonymous] meetings. Teague became her boyfriend. She lived with him temporarily until she entered the [intensive outpatient] program at Rushford followed by the [intensive outpatient] program at the McDonough House. Upon being discharged from the McDonough House she found residence at the House of Hope and Change in Danbury. It is a sober house for recovering women alcoholics. [The respondent] has been a resident there since August 29, 2015. There are no children at the sober house. All parties agree it is not an appropriate residence for Natalie. [The respondent] is required to reside there for three months. She may be discharged from the sober house on November 29, 2015. However, [the respondent] has no future housing prospects and she has no idea where she will reside after leaving the sober house. "[The respondent] conceded during the trial that on April 16, 2015, Natalie was neglected in that she was subjected to conditions injurious to her well-being. [The respondent] admitted during the trial that she is an alcoholic and relapsed with alcohol and Ambien. [The respondent] further conceded during the trial that substance abuse has impacted her ability to care for Natalie. "Notwithstanding the sporadic and inconsistent progress [the respondent] has made, she has not yet progressed enough with her substance abuse, mental health and housing stability to have Natalie returned to her care at this time. She has not yet achieved the degree of rehabilitation necessary. Her substance abuse and mental health continue to be major concerns after her relapse the weekend of July 25, 2015. She is currently in a dating relationship with a man whom she met at an [Alcoholics Anonymous] meeting and whom she relies upon as a source of support. She has failed to demonstrate that she is now or [could] in the reasonably foreseeable future be a consistent, stable, sober caregiver to Natalie, able to meet her daily and emergency needs. "The father was noncustodial at the time of Natalie's removal by [the department]. [The respondent] purposefully concealed and kept her and Natalie's whereabouts from being made known to him. At a considered removal meeting with [the department] [on] or about April 28, 2015, [the respondent] identified the father for the first time as the putative father of Natalie. After being noticed, the father appeared in [Connecticut] on or prior to May 27, 2015. Prior to May 2015, he had not seen Natalie since she was a few months old. His absence in her life is due solely to [the respondent's] efforts to keep Natalie's whereabouts unknown to him. She knew he was Natalie's father. He was prevented from coming forward earlier and providing support for Natalie and presenting himself as a resource for her. He approached [the department] contending he was Natalie's biological father. He provided [the department] with a copy of the results of a paternity test done on July 1, 2013 in [North Carolina]. He has been fully cooperative with [the department] in every respect since then. No specific steps were issued for the father. [The department] did not recommend any services for him. [The department] could not identify any areas for services which he [needs]. He has been very responsive and fully cooperative with all requests made of him by [the department]. "The father recognizes the need and desires to keep [the respondent] involved in Natalie's life. He [is] willing to allow her to enjoy liberal and flexible visitation and other contact with Natalie. He has never been married and is not in a dating relationship. He continues to reside in Greensboro, [North Carolina] with his mother and father in their home. [S]ocial worker Rodney Moore flew to Greensboro, [North Carolina] on October 15, 2015, to interview [the father's] parents and inspect their home. His parents are his support system. They are committed to helping him care for Natalie. A records check by [the department] into the background of the paternal grandparents revealed no concerns. Their home is a big single-family house situated on a large property. It is 'child proofed,' there is a bedroom fully furnished with a bed already set up for Natalie's sole use, lots of toys, clothing, and pictures. It is a safe, nurturing, and appropriate residence for Natalie. "The father served in the U.S. Army as a parachute rigger in the 82nd Airborne Division and was honorably discharged. A background check by [the department] disclosed no criminal or domestic violence history for the father. Substance abuse test results for the father were all negative. [The respondent's] unsubstantiated allegation that he abused illegal and prescription drugs is given no weight by this court. He previously worked as a commercial scuba diver and with the Boy Scouts of America. He currently works with youth groups within his church. He is employed full-time as a horse farm manager. He earns about $20,000 a year. He has Blue Cross/Blue Shield health insurance. It is available for Natalie should she be in his care. Since May 2015, he has travelled regularly on weekends from [North Carolina] to [Connecticut] to visit Natalie. He has driven to [Connecticut] at his expense. He has travelled to [Connecticut] two times by airplane. He [has] also visited with her each time he has had to appear in [Connecticut] for court." Accordingly, the court adjudicated Natalie neglected, vacated the order of temporary custody, and granted custody and guardianship to the father. This appeal followed. I The parties agree that as to the first issue, namely, whether the department had a continuing duty to provide reunification services to the respondent, the question is one of statutory construction and the standard of review is therefore plenary. See Marchesi v. Board of Selectmen, 309 Conn. 608, 614, 72 A.3d 394 (2013). The respondent argues that the department has a continuing statutory obligation to make reasonable efforts to reunify the child with her, even after the adjudication of neglect and the awarding of custody and guardianship to the father, who was a biological parent like the mother. In support of her claim, she relies on General Statutes § 46b-129 (j)(3), which provides that if custody is awarded to an individual other than a parent or former guardian, the court shall order specific steps that the parent must take to facilitate the return of the child. In this case, however, her reliance is misplaced because the court vested custody and guardianship in the father, whose underlying parental rights are equal to those of the respondent, and not in the petitioner or any other related or unrelated third party. The respondent further argues that her right to continuing services from the department not only is predicated on the specific steps language in § 46b-129 (j)(3), but that it also derives from General Statutes § 17a-111b (a). What is before this court, however, is an appeal from a neglect adjudication and disposition pursuant to General Statutes § 46b-120 et seq., including § 46b-129. It is not an appeal from a termination of parental rights adjudication and disposition pursuant to General Statutes § 17a-111a9 et seq., including § 17a-111b (a). The result of the trial court's disposition is that although the father currently has custody and guardianship of Natalie, and family integrity is preserved to the maximum extent possible in the specific circumstances of this case, the respondent has not lost her right to attempt to modify the court's order to obtain a transfer of custody and guardianship to her by persuading a court that doing so is in the best interest of Natalie. See Fish v. Fish, 285 Conn. 24, 84, 939 A.2d 1040 (2008) ; Knock v. Knock, 224 Conn. 776, 785, 621 A.2d 267 (1993) ; Hibbard v. Hibbard, 139 Conn.App. 10, 20-22, 55 A.3d 301 (2012) ; Malave v. Ortiz, 114 Conn.App. 414, 416, 970 A.2d 743 (2009) ; see also General Statutes § 46b-56. If, after a neglect adjudication, a child is committed to the care, custody, and guardianship of the commissioner pursuant to § 46b-129 (j)(2)(A), the department does have a continuing statutory duty to provide reunification services. See General Statutes § 17a-111b (a). This duty, however, does not exist when the dispositional award of custody and guardianship is to a parent. In In re Pedro J.C., 154 Conn.App. 517, 538-39, 105 A.3d 943 (2014), this court stated: "In this case, the commissioner did not recommend or advocate for any particular custodial option. The court in this case chose the second option [a relative pursuant to § 46b-129 (j)(2)(B) ] as being in the . best interest [of the petitioner, Pedro J.C., a seventeen year old child] and transferred custody and guardianship [of him] to [a cousin]. Such a disposition deprived the court of continuing jurisdiction to promote the reunification with the respondent [mother] it subsequently found viable. A transfer of guardianship to someone other than a parent results in the cessation of any requirement that reunification efforts be made, and we fail to see how reunification, when contemplated in state child protection proceedings, remains viable when no state agency is authorized to make reasonable efforts toward reunification.... A decision to remove a child from parental custody in a neglect proceeding is not always subject to periodic judicial review to assess the well-being of the child and to approve a permanency plan for the child's care and custody, whether that be reunification with the parent, adoption, a transfer of guardianship, or long-term foster care within a year of removal. The periodic judicial review described in § 46b-129 applies only if the child is committed to the custody of the department. The legislature . did not contemplate mandatory, periodic judicial review of cases in which custody, rather than ordered as a commitment of the child to [the department, has] been vested by the court in an appropriate third party.... Fish v. Fish, [supra, 285 Conn. at 83, 939 A.2d 1040 ]. Once the court decided to transfer custody and guardianship to [the cousin], the only way reunification [with the respondent] would be restored to viability would be if the respondent opposed that dispositional status and either appealed or subsequently filed a petition to reinstate her guardianship of the child. General Statutes § 46b-129 (n).... "Accordingly, we conclude that the court's failure to find that reunification with the respondent was not viable due to neglect under state law was erroneous as a matter of law because it was internally inconsistent with the court's dispositional order on the neglect petition, which transferred the custody and guardianship of the petitioner to [the cousin]."(Footnotes altered; internal quotation marks omitted.) In re Pedro J.C., supra, 154 Conn.App. at 538-39, 105 A.3d 943. The principles set forth in In re Pedro J.C. are applicable both in the context of a transfer of custody and guardianship from one parent to the other, and in the context of a transfer of custody and guardianship from the petitioner to a biological parent as a dispositional result of a neglect proceeding. The court's disposition in the present case awarding custody and guardianship to the father deprived it of continuing jurisdiction over the respondent's possible future reunification with Natalie and thus required the cessation of such reunification efforts. II The respondent's second claim is that the court erred in failing to require further investigation of the father's fitness to parent before granting custody and guardianship to him and permitting him to remove Natalie to North Carolina, and that such further investigation was required by the department's duty to make reasonable efforts toward reunification of the respondent with Natalie. The respondent argues that there was both statutory authorization and a factual basis for such further investigation of the father. We review the court's findings of fact under the clear error standard. "A finding of fact is clearly erroneous when there is no evidence in the record to support it . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.... 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.) Bender v. Bender, 292 Conn. 696, 728-29, 975 A.2d 636 (2009). We give plenary review to the respondent's claims of statutory construction and application in support of her second claim. See Marchesi v. Board of Selectmen, supra, 309 Conn. at 614, 72 A.3d 394. The respondent argues that the petitioner's alleged "failure to conduct an adequate investigation implicates the trial court's conclusions concerning [the department's] obligation to make reasonable efforts before removing a child from the home." The respondent also asserts that "[t]here is no dispute that, before removing a child from her custodial parent, [the department] must make reasonable efforts to avoid the removal," and "[t]his obligation applies in the context of a neglect petition as well as a petition for termination, and includes the obligation, in the context of this case in particular, to perform a thorough investigation before removing a child and placing her out of state." It is not disputed, however, that the department provided substantial services to the respondent and Natalie for several months after the filing of the neglect petition in April, 2015, through late October, 2015. To the extent, however, that the "reasonable efforts" that the respondent asserts are required include the department's performance of such a "thorough investigation," she has not cited any relevant authority for this proposition. She does cite in support of her claim General Statutes § 17a-112, which describes standards and requirements for the termination of parental rights, and In re Jason M., 140 Conn.App. 708, 720-21, 59 A.3d 902, cert. denied, 308 Conn. 931, 64 A.3d 330, cert. denied sub nom. Charline P. v. Connecticut Dep. of Children & Families, -U.S. -, 134 S.Ct. 701, 187 L.Ed.2d 564 (2013), an appeal from a termination of parental rights. The respondent, however, acknowledges that we held in In re Pedro J.C., a neglect proceeding, that the department has no continuing obligation to make further reasonable efforts toward a respondent's reunification with a child if custody and guardianship of such child is not committed by the court to the petitioner. To the extent the respondent claims that a "thorough investigation" of the father was required to be made in this case by the department as part of its "reasonable efforts" to reunify the respondent with Natalie, we reject that claim. The respondent also argues that there was substantial factual evidence calling the father's fitness into question. She, however, in her brief "does not contend that this evidence required that the trial court find the father unfit, or find even that the alleged events had occurred. The significance of this evidence was only in that it should have triggered in the petitioner an obligation (and from the trial court, an order) to do a thorough investigation into the father's fitness before allowing Natalie to be removed from [the respondent] and moved to North Carolina with him." The respondent then set forth her unsubstantiated and unproven allegations about the father that were not found as fact by the court, and she made unsupported allegations about the department's activities or lack thereof relating to its investigation of the father's fitness to be a custodial parent and guardian of Natalie. The respondent does not assert that any specific fact found by the court is clearly erroneous. She did not offer any specific evidence in the neglect hearing to support her claims about the department's failure to perform any required additional investigation of the father. The respondent additionally argues that the court could have entered orders, pursuant to its authority recognized in In re Emoni W., 305 Conn. 723, 741, 48 A.3d 1 (2012), placing conditions on the father's exercise of custody. The court's findings of fact set forth previously in this opinion do not provide any support for her allegations about the father's lack of fitness, and the court did not credit them. The court instead found that the father did not have custody of Natalie at the time of her removal by the department. He had not come forward earlier to provide support for Natalie or to present himself as a resource for her because the respondent had purposefully kept Natalie's whereabouts from being known to him. Since receiving notice, the father appeared in Connecticut and provided evidence of his paternity. He has been fully cooperative with the department in every respect since then. No specific steps were ordered for him by the court and the department could not identify any areas for which he had need for services. The court further found: "The father recognizes the need and desires to keep [the respondent] involved in Natalie's life. He [is] willing to allow her to enjoy liberal and flexible visitation and other contact with Natalie. He has never been married and is not in a dating relationship. He continues to reside in Greensboro, [North Carolina] with his mother and father in their home. [S]ocial worker Rodney Moore flew to Greensboro, [North Carolina] on October 15, 2015, to interview [the father's] parents and inspect their home. His parents are his support system. They are committed to helping him care for Natalie. A records check by [the department] into the background of the paternal grandparents there is a bedroom fully furnished with a bed already set up for Natalie's sole use, lots of toys, clothing, and pictures. It is a safe, nurturing, and appropriate residence for Natalie." On the basis of these findings, which the respondent does not claim were clearly erroneous, we cannot conclude that the trial court erred in declining to enter orders placing conditions on Natalie's placement with the father pursuant to its authority recognized in In re Emoni W, supra, 305 Conn. at 736-37, 741, 48 A.3d 1. Moreover, the respondent has failed to establish on appeal that, after the court's adjudication of neglect and dispositional award of custody and guardianship to the father, instead of commitment of the child to the care, custody and guardianship of the petitioner, the department has any statutory duty or authority to continue its activities with or for the respondent, the father or Natalie. See In re Pedro J. C., supra, 154 Conn.App. at 538-39, 105 A.3d 943. The judgment is affirmed. In this opinion the other judges concurred. The mother is referred to herein as the respondent. The father, Matthew B., although also a respondent in the neglect proceeding, did not appeal and for convenience is referred to herein as the father. The court "granted temporary/nonpermanent custody and guardianship of Natalie" to the father. Such award is referred to herein as custody and guardianship. Pursuant to Practice Book § 67-13, the attorney for the minor child filed a statement on March 4, 2016, adopting the petitioner's brief in opposition to the respondent's appeal. The standard of proof applicable to nonpermanent custody proceedings, such as neglect proceedings, is a fair preponderance of the evidence. In re Joseph W., 305 Conn. 633, 645, 46 A.3d 59 (2012) ; In re Kamari C-L., 122 Conn.App. 815, 825, 2 A.3d 13, cert. denied, 298 Conn. 927, 5 A.3d 487 (2010). The petitioner responds that the primary issue in this case is whether the department is obligated to continue its involvement in the lives of Natalie and her parents after the adjudication of neglect and the placing of her primary care, custody and guardianship with a parent who was found by the court to be worthy, suitable and appropriate to assume those responsibilities. The petitioner argues that "[i]n such a case, when the child is placed with a suitable and worthy parent and the trial court has not found any other concerns warranting further oversight, we should expect state intervention to end." General Statutes § 46b-129 (j)(3) provides: "If the court determines that the commitment should be revoked and the child's or youth's legal guardianship or permanent legal guardianship should vest in someone other than the respondent parent, parents or former guardian, or if parental rights are terminated at any time, there shall be a rebuttable presumption that an award of legal guardianship or permanent legal guardianship upon revocation to, or adoption upon termination of parental rights by, any relative who is licensed as a foster parent for such child or youth, or who is, pursuant to an order of the court, the temporary custodian of the child or youth at the time of the revocation or termination, shall be in the best interests of the child or youth and that such relative is a suitable and worthy person to assume legal guardianship or permanent legal guardianship upon revocation or to adopt such child or youth upon termination of parental rights. The presumption may be rebutted by a preponderance of the evidence that an award of legal guardianship or permanent legal guardianship to, or an adoption by, such relative would not be in the child's or youth's best interests and such relative is not a suitable and worthy person. The court shall order specific steps that the parent must take to facilitate the return of the child or youth to the custody of such parent." (Emphasis added.) Our Supreme Court in Fish v. Fish, 285 Conn. 24, 40-41, 939 A.2d 1040 (2008), discussed the rights of parents with respect to their children: "In discussing the constitutional basis for the protection of parental rights, the United States Supreme Court observed in Troxel [v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) ], that [t]he liberty interest . of parents in the care, custody, and control of their children . is perhaps the oldest of the fundamental liberty interests recognized by this [c]ourt. More than [seventy-five] years ago, in Meyer v. Nebraska, 262 U.S. 390, 399, 401 [43 S.Ct. 625, 67 L.Ed. 1042] (1923), we held that the liberty protected by the [d]ue [p]rocess [c]lause includes the right of parents to establish a home and bring up children and to control the education of their own. Two years later, in Pierce v. Society of Sisters, 268 U.S. 510, [534-35, 45 S.Ct. 571, 69 L.Ed. 1070] (1925), we again held that the liberty of parents and guardians includes the right to direct the upbringing and education of children under their control.... We returned to the subject in Prince v. Massachusetts, 321 U.S. 158 [64 S.Ct. 438, 88 L.Ed. 645] (1944), and again confirmed that there is a constitutional dimension to the right of parents to direct the upbringing of their children. It is cardinal . that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder. Id., at [166, 64 S.Ct. 438 ] . Troxel v. Granville, supra, 530 U.S. at 65-66, 120 S.Ct. 2054. In light of this extensive precedent, it cannot now be doubted that the [d]ue [p]rocess [c]lause of the [f]ourteenth [a]mendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children. Id., at 66, 120 S.Ct. 2054." (Internal quotation marks omitted.) Fish v. Fish, supra, at 40-41, 939 A.2d 1040. "Connecticut courts likewise have recognized the constitutionally protected right of parents to raise and care for their children." Id., at 41, 939 A.2d 1040. To the extent that the respondent argues that such constitutional rights are only for her benefit or otherwise ignores the father's equal rights as a parent, she is incorrect. An adjudication of neglect is a determination of the status of the child: "The focal point of a neglect petition is not condemnation of the parents, but, rather, the status of the child." In re Allison G., 276 Conn. 146, 164, 883 A.2d 1226 (2005). General Statutes § 17a-111a provides: "(a) The Commissioner of Children and Families shall file a petition to terminate parental rights pursuant to section 17a-112 if (1) the child has been in the custody of the commissioner for at least fifteen consecutive months, or at least fifteen months during the twenty-two months, immediately preceding the filing of such petition; (2) the child has been abandoned as defined in subsection (j) of section 17a-112 ; or (3) a court of competent jurisdiction has found that (A) the parent has killed, through deliberate, nonaccidental act, a sibling of the child or has requested, commanded, importuned, attempted, conspired or solicited to commit the killing of the child or a sibling of the child; or (B) the parent has assaulted the child or a sibling of a child, through deliberate, nonaccidental act, and such assault resulted in serious bodily injury to such child. "(b) Notwithstanding the provisions of subsection (a) of this section, the commissioner is not required to file a petition to terminate parental rights in such cases if the commissioner determines that: (1) The child has been placed under the care of a relative of such child; (2) there is a compelling reason to believe that filing such petition is not in the best interests of the child; or (3) the parent has not been offered the services contained in the permanency plan to reunify the parent with the child or such services were not available, unless a court has determined that efforts to reunify the parent with the child are not required." General Statutes § 17a-111b (a) provides: "The Commissioner of Children and Families shall make reasonable efforts to reunify a parent with a child unless the court (1) determines that such efforts are not required pursuant to subsection (b) of this section or subsection (j) of section 17a-112, or (2) has approved a permanency plan other than reunification pursuant to subsection (k) of section 46b-129." General Statutes § 46b-129 (j)(2) provides in relevant part: "Upon finding and adjudging that any child or youth is uncared for, neglected or abused the court may (A) commit such child or youth to the Commissioner of Children and Families, and such commitment shall remain in effect until further order of the court, except that such commitment may be revoked or parental rights terminated at any time by the court...." It is undisputed that the court issued temporary specific steps to the respondent pursuant to § 46b-129 (c) at the initial hearing in the present case, and that the department provided reunification services to her through the hearing on the neglect petition, during which it became clear to the court that it was in the best interest of the child for custody and guardianship to be awarded to the father. Although in this case the respondent has appealed the court's judgment, she did not seek to have either custody or guardianship of Natalie granted to her, presumably because of her reasonable recognition that, in view of her unfortunate circumstances and need to concentrate on dealing with her own issues and problems, thus attending to her own possible rehabilitation, she was not then a suitable candidate to have the custody and guardianship of Natalie, and it was unclear if or when she might be a suitable candidate in the future. She thus was not in a position to be restored to viability, and she did not appeal the decision of the court not to award custody and guardianship to her. The respondent again relies on our state law relating to the termination of parental rights: "In order to terminate parental rights under § 17a-112 (j), the department is required to prove, by clear and convincing evidence, that it has made reasonable efforts . to reunify the child with the parent, unless the court finds . that the parent is unable or unwilling to benefit from reunification.... General Statutes § 17a-112 (j)(1). The standard for reviewing reasonable efforts has been well established by the Appellate Court. Turning to the statutory scheme encompassing the termination of the parental rights of a child committed to the department, [§ 17a-112 ] imposes on the department the duty, inter alia, to make reasonable efforts to reunite the child or children with the parents. The word reasonable is the linchpin on which the department's efforts in a particular set of circumstances are to be adjudged, using the clear and convincing standard of proof. Neither the word reasonable nor the word efforts is, however, defined by our legislature or by the federal act from which the requirement was drawn.... [R]easonable efforts means doing everything reasonable, not everything possible.... The trial court's determination of this issue will not be overturned on appeal unless, in light of all of the evidence in the record, it is clearly erroneous." (Internal quotation marks omitted.) In Re Samantha C., 268 Conn. 614, 632, 847 A.2d 883 (2004). There is no similar requirement of proof of reasonable efforts prior to an adjudication of neglect and subsequent disposition either of commitment to the petitioner or of custody to a biological parent. See, e.g., General Statutes § 46b-129. In the present case, however, Natalie was removed pursuant to an ex parte order of temporary custody. At the subsequent hearing, the respondent did not contest the ex parte order, and it was sustained by the court. The petitioner, however, "has the authority and the responsibility to investigate whether the placement of a particular child with an out-of-state parent would be consistent with the public policy goals underlying the [the Interstate Compact on the Placement of Children] when the child is under the petitioner's care and supervision and there is evidence rebutting the presumption of fitness." In re Emoni W., 305 Conn. 723, 737, 48 A.3d 1 (2012). Our Supreme Court also stated that "it is essential to note that both the respondent and the petitioner agree that, if a child is in the custody of the petitioner, an out-of-state parent must appear at the preliminary hearing concerning the placement of the child, answer questions and agree to reasonable conditions on the placement of the child with the parent. Moreover, when there is evidence before the court that an out-of-state, noncustodial parent is unfit, the parties agree that the court should not place a child with the parent without ordering an investigation into the parent's fitness. They disagree only about whether the petitioner can conduct that investigation or, instead, the analogous agency in the receiving state must conduct it pursuant to [General Statutes] § 17a-175. At oral argument before this court, the petitioner conceded that she has the authority and the ability to conduct an investigation of an out-of-state parent, although she might encounter difficulties that would not be present in cases in which she investigates a parent who is living in state. Indeed, our statutes provide a panoply of procedures to ensure that a child under the care and supervision of the petitioner is not placed in the custody of an unfit parent and that, if a parent is granted custody, there can be continued protective supervision. Accordingly, our conclusion in the present case that § 17a-175 does not apply to out-of-state parents does not leave the trial court or the petitioner without a remedy when faced with evidence that an out-of-state parent is unfit."(Footnotes omitted.) Id., at 741-42, 48 A.3d 1. In the present case, however, the court determined that there was no evidence that the father was unfit. See footnote 14 of this opinion.

12485319

COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES v. ECHO HOSE AMBULANCE et al.

Comm'n on Human Rights & Opportunities v. Echo Hose Ambulance

2016-07-26

No. 19496.

190

196

140 A.3d 190

140

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

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

Fastcase

COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES v. ECHO HOSE AMBULANCE et al.

COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES v. ECHO HOSE AMBULANCE et al. No. 19496. Supreme Court of Connecticut. Argued March 30, 2016. Decided July 26, 2016. Christopher T. Parkin, with whom, on the brief, were Russell J. Sweeting and Thomas W. Moyher, Westport, for the appellant (defendant Sarah Puryear). Ian Angus Cole, for the appellee (named defendant). Michael J. Rose, with whom, on the brief, was Cindy M. Cieslak, Hartford, for the appellee (defendant city of Shelton). ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, McDONALD, ESPINOSA and ROBINSON, Js. This case originally was scheduled to be argued before a panel of this court consisting of Chief Justice Rogers and Justices Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson. Although Justice Eveleigh 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.

3185

20385

McDONALD, J. We are called upon to decide what test should be applied to determine whether an unpaid volunteer is an "employee" for purposes of the Connecticut Fair Employment Practices Act (CFEPA), General Statutes § 46a-51 et seq. More specifically, we must decide whether a volunteer must satisfy the predominant "remuneration test" used to resolve similar federal causes of action or Connecticut's common-law "right to control" test. This certified appeal arises out of a complaint filed with the plaintiff, the Commission on Human Rights and Opportunities, by Brenda Puryear (Brenda), on behalf of her then minor daughter Sarah Puryear (Sarah). The complaint alleged that the defendants, Echo Hose Ambulance and the city of Shelton, had discriminated and retaliated against Sarah on the basis of her race and color in violation of CFEPA and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Title VII). The trial court rendered judgment dismissing the commission's administrative appeal from the decision of the commission's human rights referee, who had struck the complaint on the ground that Sarah was not an employee under the remuneration test. The Appellate Court affirmed the trial court's judgment; Commission on Human Rights & Opportunities v. Echo Hose Ambulance, 156 Conn.App. 239, 253, 113 A.3d 463 (2015) ; and Sarah appealed to this court. We affirm the judgment of the Appellate Court. The record reveals the following facts, as alleged in the complaint, and procedural history. Echo Hose provides ambulance transport and other services to the city. Sarah, who is African-American, was accepted into a "precepting program" with Echo Hose, which required her to ride in an ambulance for one shift each week and to participate in other activities. While taking part in that program, and after completing it, Sarah "was treated differently due to her race and color and . was subject to discipline that other individuals . were not." Specifically, Sarah was subjected to comments about Africa and the " 'ghetto,' " was suspended without good cause, and was terminated without good cause. Although Sarah's termination was later overruled, such that she was able to complete the precepting program, members of Echo Hose voted against making Sarah a member. Brenda thereafter filed a complaint with the commission alleging violations of CFEPA and Title VII. The complaint did not allege that Sarah had been paid or had received other benefits in conjunction with her activities with Echo Hose. The city moved to strike the complaint, claiming that Sarah was not an "employee," a factual predicate to an action under either CFEPA or Title VII, because she could not satisfy the remuneration test that determines such a status. Brenda objected to the motion, claiming that the proper test for determining who is an employee under CFEPA is the "right to control test," which Sarah satisfied. The referee determined that the remuneration test applied to both Title VII and CFEPA and that Sarah could not satisfy that test. The referee therefore struck the complaint in its entirety. After the referee declined to rule on motions for reconsideration filed by the commission and Sarah regarding Sarah's claim under CFEPA, the commission brought this administrative appeal pursuant to General Statutes § 4-183 and 46a-94a. See footnote 1 of this opinion. The trial court concluded that the referee properly had applied the remuneration test and dismissed the appeal. Sarah then appealed to the Appellate Court, which affirmed the judgment of dismissal. Commission on Human Rights & Opportunities v. Echo Hose Ambulance, supra, 156 Conn.App. at 253, 113 A.3d 463. We granted Sarah's petition for certification to appeal limited to the following issue: "Did the Appellate Court properly apply the federal 'remuneration test' rather than Connecticut's common-law 'right [to] control' test to determine an 'employee' under [CFEPA] .?" Commission on Human Rights & Opportunities v. Echo Hose Ambulance, 317 Conn. 911, 116 A.3d 309 (2015). We apply plenary review to this question of law, and well established principles of statutory construction. See General Statutes § 1-2z (setting forth plain meaning rule); Caciopoli v. Lebowitz, 309 Conn. 62, 69, 68 A.3d 1150 (2013) ("[w]hen a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common-law principles governing the same general subject matter" [internal quotation marks omitted] ). CFEPA defines an employee as "any person employed by an employer...." General Statutes § 46a-51 (9). This circular definition provides no guidance on how to assess whether someone is an employee. Cf. Daggitt v. United Food & Commercial Workers International Union, 245 F.3d 981, 987 (8th Cir.2001) (finding substantively identical definition of employee in Title VII circular and unhelpful in court's inquiry). "This court previously has recognized that in construing [CFEPA] we are properly guided by the case law surrounding federal fair employment legislation...." (Internal quotation marks omitted.) Perodeau v. Hartford, 259 Conn. 729, 738, 792 A.2d 752 (2002) ; see also Patino v. Birken Mfg. Co., 304 Conn. 679, 689, 41 A.3d 1013 (2012) ("Connecticut antidiscrimination statutes should be interpreted in accordance with federal antidiscrimination laws" [internal quotation marks omitted] ). We also have recognized that our legislature's intent, in general, was to make CFEPA complement the provisions of Title VII. Williams v. Commission on Human Rights & Opportunities, 257 Conn. 258, 287, 777 A.2d 645 (2001) ; State v. Commission on Human Rights & Opportunities, 211 Conn. 464, 469-70, 559 A.2d 1120 (1989). We therefore previously looked to Title VII jurisprudence for guidance when interpreting the meaning of "employer" under CFEPA. See Perodeau v. Hartford, supra, at 738-41, 792 A.2d 752. Two tests-the right to control test and the remuneration test-have emerged from the federal courts to determine whether an individual is an employee in the context of the substantively identical definition of that term under Title VII. 42 U.S.C. § 2000e (f). The right to control test is based on the common law of agency, which considers various factors to determine "the hiring party's right to control the manner and means by which the product is accomplished [by the hired party]." (Emphasis added.) Community for Creative Non-Violence v. Reid, 490 U.S. 730, 751-52, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989). The United States Supreme Court has applied this test to various statutory schemes, not including Title VII, to resolve the question of whether the hired party was an employee or independent contractor. Nationwide Mutual Ins. Co. v. Darden, 503 U.S. 318, 323, 327, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992) ; Community for Creative Non-Violence v. Reid, supra, at 751-52, 109 S.Ct. 2166 ; see also O'Connor v. Davis, 126 F.3d 112, 115 (citing cases), cert. denied, 522 U.S. 1114, 118 S.Ct. 1048, 140 L.Ed.2d 112 (1998). The court relied on the well established rule that, "when Congress uses the term employee without defining it with precision, courts should presume that Congress had in mind the conventional master-servant relationship as understood by the common-law agency doctrine." (Internal quotation marks omitted.) O'Connor v. Davis, supra, at 115, quoting Nationwide Mutual Ins. Co. v. Darden, supra, at 322-23, 112 S.Ct. 1344, and Community for Creative Non-Violence v. Reid, supra, at 739-40, 109 S.Ct. 2166. The remuneration test arose to address circumstances in which, in contrast to the employee versus independent contractor situation, it was not clear that the putative employee had been "hired" in the first instance, and accordingly, approximated the conventional master-servant relationship. O'Connor v. Davis, supra, 126 F.3d at 115. The remuneration test instructs courts to "conduct a [two step] inquiry by requiring that a volunteer first show remuneration as a threshold matter before proceeding to the second step-analyzing the putative employment relationship under the [common-law] agency test. Remuneration may consist of either direct compensation, such as a salary or wages, or indirect benefits that are not merely incidental to the activity performed." Juino v. Livingston Parish Fire District No. 5, 717 F.3d 431, 435 (5th Cir.2013). A majority of United States Courts of Appeals that have considered this issue have adopted the remuneration test. See id., at 435-38 (adopting remuneration test after contrasting cases from circuits that apply remuneration test, including Second, Fourth, Eighth, Tenth, and Eleventh Circuits, with cases from Sixth and Ninth Circuits, which apply common-law agency test). In so doing, several circuits, including the Second Circuit, concluded that a test designed to distinguish employees from independent contractors is ill-suited to distinguishing employees from volunteers. See O'Connor v. Davis, supra, 126 F.3d at 115 ; Haavistola v. Community Fire Co. of Rising Sun, Inc., 6 F.3d 211, 220 (4th Cir.1993). Federal case law strongly weighs in favor of the application of the remuneration test to claims brought under CFEPA for two reasons. First, adopting the remuneration test makes this court's interpretation of CFEPA complement the interpretation of Title VII as adopted by the majority of federal circuits, including the Second Circuit. See Gleason v. Smolinski, 319 Conn. 394, 444 n. 41, 125 A.3d 920 (2015) (decisions of Second Circuit are deemed particularly persuasive when there is circuit split). Although this court has occasionally interpreted CFEPA differently than Title VII, it has done so only in circumstances in which there is clear evidence of a contrary legislative intent. See McWeeny v. Hartford, 287 Conn. 56, 69, 946 A.2d 862 (2008) (relevant portion of CFEPA plain and unambiguous); Evening Sentinel v. National Organization for Women, 168 Conn. 26, 34 n. 5, 357 A.2d 498 (1975) (textual difference between CFEPA and corresponding provision of Title VII was "purposeful and is meaningful"); see also Vollemans v. Wallingford, 103 Conn.App. 188, 213, 218, 928 A.2d 586 (2007) (federal interpretation directly conflicted with specific legislative policy of avoiding dismissal of potentially meritorious claims due to late filing), aff'd, 289 Conn. 57, 61, 956 A.2d 579 (2008). No such evidence is apparent in the present case. Second, the logic supporting the remuneration test is more sound. It provides a threshold step to resolve the factual premise that the right to control test assumes-a hiring party and a hired party. Our conclusion that the remuneration test applies is confirmed by the legislature's enactment of "An Act Protecting Interns from Workplace Harassment and Discrimination." Public Acts 2015, No. 15-56 (P.A. 15-56), codified at General Statutes (Supp.2016) § 31-40y and 46a-51 (8). The bill subsequently enacted as P.A. 15-56 was introduced prior to the Appellate Court's decision in the present case but was not enacted until shortly after that decision was issued. The legislature, through P.A. 15-56, amended CFEPA to include interns as a separate class of persons to whom the protections of CFEPA applied. General Statutes (Supp.2016) § 46a-51 (8). An " '[i]ntern' " is defined in part as "an individual who . is not entitled to wages for the work performed;" General Statutes (Supp.2016) § 31-40y (a)(3)(B) ; in contrast to an " '[e]mployee,' " which is defined as "any individual engaged in service to an employer in a business of such employer and receives compensation for such service...." General Statutes (Supp.2016) § 31-40y (a)(1). In testimony before the Labor and Public Employees Committee prior to the Appellate Court's decision in this case, Senator Martin M. Looney, one of the sponsors of the bill enacted as P.A. 15-56, explained to his colleagues that the need for the bill stemmed from the fact that "Connecticut does not currently protect interns from harassment, discrimination, or retaliation in our statutes because they are not considered to be employees under our state law." Conn. Joint Standing Committee Hearings, Labor and Public Employees, Pt. 1, 2015 Sess., p. 164. Public Act 15-56 and its legislative history yield the following considerations. First, the legislature did not hold the view that the right to control test applied to CFEPA because, if that test had applied, interns would not have been categorically excluded from CFEPA. Second, adopting the right to control test for CFEPA would create tension between CFEPA and P.A. 15-56, the latter plainly turning on the question of compensation and other factors not directly related to the right to control. Creating such tension would be inconsistent with the principle that we read "the legislative scheme as a whole in order to give effect to and harmonize all of [its] parts." (Internal quotation marks omitted.) Stewart v. Watertown, 303 Conn. 699, 711, 38 A.3d 72 (2012). Sarah nevertheless advances a number of arguments for application of the right to control test, none of which we find persuasive. Sarah's reliance on two cases involving complaints by volunteers, Groton v. Commission on Human Rights & Opportunities, 169 Conn. 89, 91, 100-101, 362 A.2d 1359 (1975), and Quinnipiac Council, Boy Scouts of America, Inc. v. Commission on Human Rights & Opportunities, 204 Conn. 287, 302, 528 A.2d 352 (1987), is misplaced. Because neither case directly addressed or analyzed the question of who is an employee under CFEPA, we read them as simply assuming, without deciding, that volunteers could be protected under CFEPA, a proposition that we do not dispute. Sarah's contention that, by enacting P.A. 15-56, the legislature clarified the law to protect individuals in her position, is unsupported by its plain language. Public Act 15-56 expands protections for one narrowly defined class of persons-unpaid interns-to which Sarah does not belong. Sarah's argument that applying the remuneration test would lead to unfair results, contrary to the public policy of protecting workers from discrimination, is similarly unpersuasive. Although CFEPA is a remedial statute, such "that ambiguities in [CFEPA] should be construed in favor of persons seeking redress thereunder;" McWeeny v. Hartford, supra, 287 Conn. at 70, 946 A.2d 862 ; our "fundamental objective is to ascertain and give effect to the apparent intent of the legislature." (Internal quotation marks omitted.) Standard Oil of Connecticut, Inc. v. Administrator, Unemployment Compensation Act, 320 Conn. 611, 642, 134 A.3d 581 (2016). Accordingly, we are "not free to accomplish a result that is contrary to the intent of the legislature...." (Internal quotation marks omitted.) McWeeny v. Hartford, supra, at 70, 946 A.2d 862. For all the reasons previously discussed, we are persuaded that the application of the remuneration test would be its intention. Moreover, the legislature's use of the term "employee" instead of a more general term; cf. General Statutes § 53-450(b) ("[a]ny person . shall have a right of action against any person"); is itself an expression of public policy to impose some limit on the scope of CFEPA. Thibodeau v. Design Group One Architects, LLC, 260 Conn. 691, 713, 802 A.2d 731 (2002) (general public policy against sex discrimination could not trump specific expression of policy in CFEPA exempting small employers). In sum, the Appellate Court properly concluded that the remuneration test is the appropriate test for determining whether a volunteer is an employee under CFEPA. Although a volunteer may be able to meet the remuneration test by proof of benefits in lieu of wages; Haavistola v. Community Fire Co. of Rising Sun, Inc., supra, 6 F.3d at 221-22 ; Sarah has neither alleged facts nor claimed on appeal that she can meet this test. Accordingly, our conclusion that the remuneration test applies is dispositive. The judgment of the Appellate Court is affirmed. In this opinion the other justices concurred. Due to unusual procedures applicable to proceedings before the commission, in this administrative appeal, the commission is named as both a plaintiff (in its own capacity) and as a defendant (in its capacity as the agency under which the commission's human rights referee issued the decision from which the commission appealed). See General Statutes § 46a-94a. Sarah, who was substituted for her mother as a party upon reaching the age of majority, is named as a nominal defendant pursuant to General Statutes § 4-183(c). For clarity, we refer to the commission and Sarah by name. It appears from the record that the precepting program is a probationary training program that, if satisfactorily completed, allows the participant to become a regular member of Echo Hose upon a majority vote of all of the regular members. Although we ordinarily afford "deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute's purposes," such deference is unwarranted when, as in this case, "the construction of a statute . has not previously been subjected to judicial scrutiny [or to] . a governmental agency's time-tested interpretation...." Chairperson, Connecticut Medical Examining Board v. Freedom of Information Commission, 310 Conn. 276, 281-82, 77 A.3d 121 (2013). Connecticut's right to control test similarly determines the relationship between a worker and a putative employer "by asking whether the putative employer has the right to control the means and methods used by the worker in the performance of his or her job." (Internal quotation marks omitted.) Doe v. Yale University, 252 Conn. 641, 680-81, 748 A.2d 834 (2000). This court has not expressly endorsed the factors used by the federal courts, which include: "the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party." (Footnotes omitted.) Community for Creative Non-Violence v. Reid, 490 U.S. 730, 751-52, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989). Two other circuit courts have applied the common-law test for agency to determine whether an individual was an employee under Title VII, but there was no question that the individual had been hired by the employer. See Brown v. J. Kaz, Inc., 581 F.3d 175, 178, 180 (3d Cir.2009) ; Alberty-Velez v. Corporacion de Puerto Rico Para La Difusion Publica, 361 F.3d 1, 6-7 (1st Cir.2004). The definition of intern also provides that an intern is an individual whose work "supplements training given in an educational environment;" General Statutes (Supp.2016) § 31-40y (a)(3)(C)(i) ; therefore making clear that an intern is not the same as a volunteer whose efforts are unconnected to an educational program.

12485337

David W. SANTARSIERO et al. v. PLANNING AND ZONING COMMISSION OF the TOWN OF MONROE et al.

Santarsiero v. Planning & Zoning Comm'n of Monroe

2016-05-31

No. 37813.

336

347

140 A.3d 336

140

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

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

Fastcase

David W. SANTARSIERO et al. v. PLANNING AND ZONING COMMISSION OF the TOWN OF MONROE et al.

David W. SANTARSIERO et al. v. PLANNING AND ZONING COMMISSION OF the TOWN OF MONROE et al. No. 37813. Appellate Court of Connecticut. Argued Feb. 10, 2016. Decided May 31, 2016. Kevin J. Gumpper, Fairfield, for the appellants (plaintiffs). Michael C. Jankovsky, Fairfield, for the appellee (defendant Real Time Investments, LLC). ALVORD, SHELDON and BEAR, Js.

5317

33729

ALVORD, J. The plaintiffs, Donna MacKenzie, David W. Santarsiero and Colleen M. Santarsiero, appeal from the judgment of the Superior Court dismissing their appeal from the decisions of the defendant Planning and Zoning Commission of the Town of Monroe (commission) granting a special exception to the defendant Real Time Investments, LLC. The commission granted the defendant a special exception pursuant to article XVIII, § 117-1800, of the February, 2013 revision of the Monroe Zoning Regulations (regulations), and approved its request for a zone change pursuant to article IX, § 117-900, of the regulations. On appeal, the plaintiffs claim that the court improperly (1) concluded that the commission, in granting the special exception, possessed the authority to waive landscape buffer requirements for areas contiguous to an inland wetland area, and (2) concluded that the commission's authority in this action was properly based on a 2009 variance, granted by the Monroe Zoning Board of Appeals (board), that could not be subject to collateral attack. We affirm the judgment of the Superior Court. The following facts and procedural history are relevant to this appeal. Since 2009 the defendant has attempted to gain the appropriate approvals to build a McDonald's restaurant with a drive-up window on 4.027 acres that the defendant owns at 579 Main Street, Monroe (property). The distance between plaintiffs' property line and the defendant's property line is approximately 100 feet, however the plaintiffs' property does not abut the defendant's property. In 2009, the defendant applied for a variance from the board to allow a restaurant with a drive-up window. At the time, 0.65 acres of the defendant's property was zoned as "Design Business District 1" (DB1), which did not permit restaurants with a drive-up window. The remainder of the property was zoned "Residential and Farming District C" (RC). Written notification of the application and hearing date were provided to the plaintiffs. After a public hearing, the board granted the variance. The plaintiffs did not appeal from the granting of the variance. On November 4, 2010, the defendant, relying on the 2009 variance, filed an application with the commission seeking a special exception, as allowed in the regulations; see footnote 3 of this opinion; a zone change and a request for site plan approval in order to construct a McDonald's restaurant with a drive-up window on its property. In its application for a special exception the defendant sought modifications to the setback and landscape buffer requirements that the regulations required where commercial property abuts residential property. In its application for a zone change the defendant sought to convert an additional 1.15 acres of its property from a RC to a DB1 zone. During a public hearing on the applications, the plaintiffs' attorney, Kevin J. Gumpper, who at the time represented another party, raised objections to the defendant's requests. The commission approved the zone change and the special exception incorporating the nonconforming setbacks and landscape buffer. The plaintiffs appealed to the Superior Court, but their claims were dismissed. After granting a petition for certification to appeal, this court reversed the granting of the special exception and affirmed the partial zone change. MacKenzie v. Planning & Zoning Commission, 146 Conn.App. 406, 442, 447-48, 77 A.3d 904 (2013). This court concluded that the commission lacked the authority to grant a special exception that varied setback and landscape buffer requirements. On February 14, 2013, and prior to this court's decision in MacKenzie, the defendant returned to the commission with a revised application for special exception, again in order to construct a McDonald's restaurant with a drive-up window. The defendant sought to have the entire property rezoned as a DB1 zone. The general location of the restaurant building on the property remained the same, but the defendant's new plan involved installing a septic system in the rear portion of the property. The variances that were at issue in MacKenzie were no longer necessary to the project because the adjacent property had been rezoned from a RC to a DC1 zone, eliminating the need for a landscape buffer between those parcels. The commission held a public hearing on July 11, 2013, on the defendant's revised application. The defendant's attorney stated at the hearing that the zone change was necessary because even though the septic system would be underground and not be visible, it was for commercial use, and therefore could not be built on residentially zoned property. The restaurant and parking area would be built along Main Street, on the portion of the property that was already zoned commercial and abutted by other commercial properties. The rear portion of the property, where the septic system would be installed, was abutted by residential properties that were not owned by the plaintiffs. At the public hearing, the defendant's engineer stated that much of the rear portion of the property was "extensively wooded" and the defendant was "not planning on touching it." However, trees would be removed from that area where the septic system was to be buried, and would be replaced with "no mow" grass. The defendant's engineer stated that additional landscaping would be added to the property after the septic system was installed. The engineer also stated that an old driveway that connected the front and rear portions of the property would be excavated and replaced with vegetation. The rear portion of the property included several areas that were marked as inland wetlands. As such, the defendant had submitted its septic system and landscaping plans to the Monroe Inland Wetlands Commission (inland wetlands commission) for its approval. At the planning and zoning hearing, the defendant's engineer informed the commission that the presence of inland wetlands limited its ability to create a landscape buffer that conformed to the regulations. The planning and zoning application was continued pending a final report and approval from the inland wetlands commission. Additional hearings were held through the summer of 2013. The plaintiffs' attorney argued before the commission that the defendant's landscaping plan did not provide an adequate buffer between the plaintiffs' properties and the proposed McDonald's restaurant. Attorney Gumpper, representing the plaintiffs, stated to the commission: "The area [at the rear of the property] is presently wooded, heavily wooded as described by the applicant's engineer, and that provides a terrific buffer for the noise and lights that are down presently on Main Street [where the McDonald's would be located], so [for the defendant] to say that this is not going to have any impact because you are tearing down all the trees to put in a septic system is quite to the contrary." The defendant's attorney argued that the proposed site plan would result in an adequate buffer: "[W]e have a very large open field like area in the rear that will provide no visual impact at all to any of the residential neighborhoods.... We have a wetlands buffer that prevents the commercial activity from leaking into an area which is abutting a residential area...." At a hearing in August, 2013, the defendant's attorney further stated: "The development of the project itself is on four acres, of which [the McDonald's] only basically uses one acre and creates a three acre buffer." Prior to deliberating on the defendant's applications, each commission member visited the site. The defendant also offered to grant the town of Monroe (town) a conservation easement on the rear portion of the property where the septic system would be installed. The inland wetlands commission approved the defendant's site plan. Its report and approval were disclosed to the commission. During deliberations on the defendant's planning and zoning applications, commission members expressed concern about additional development of the defendant's property if the zone change was approved and the septic system was never installed. The commission members concluded that the proposed conservation easement addressed these concerns. On August 29, 2013, the commission approved the defendant's special exception as requested by a vote of four to one. The commission also approved the defendant's zone change request by the same four to one vote. A conservation easement for the rear portions of the property was listed as a condition of the special exception permit. During the public hearings and deliberations, the commission members did not specifically discuss the landscape buffer requirement or the regulatory exceptions to that rule. However, when the commission granted approval for the special exception it adopted the following statement as part of its reasoning: "This site has been landscaped thoroughly, including landscaped to meet the inland wetlands requirements." The plaintiffs appealed to the Superior Court to overturn the commission's decisions approving the zone change and granting the special exception. The court concluded that the commission did not abuse its discretion in granting the special exception because there was substantial evidence to support the commission's decision to waive the landscape buffer requirement. Interpreting the regulations and, specifically, § 117-902(G)(4) that authorized waiver of the landscape buffer requirement for inland wetland areas, the court concluded: "The regulations afford the commission the discretion to determine that an alternative buffer may be necessary in areas not strictly wetlands in order to preserve the wetlands themselves." The court also rejected the plaintiffs' argument that the 2009 variance should be subject to collateral attack in this case, observing that the plaintiffs had failed to directly appeal the variance when it was originally granted. The court dismissed the plaintiffs' appeal. The plaintiffs thereafter filed a petition for certification to appeal pursuant to General Statutes § 8-8(o ). We granted the petition and this appeal followed. I The plaintiffs claim on appeal that the court improperly concluded that the commission had the authority to waive the landscape buffer requirement in accordance with a regulatory exception for inland wetland areas. The plaintiffs argue that the commission abused its discretion when it approved the defendant's special exception without requiring the landscape buffer of three rows of evergreen trees. See footnote 6 of this opinion. We conclude that the commission was within its discretion to find that the application for special exception complied with the regulations. The following additional facts are relevant to the plaintiffs' claim. The rear portion of the defendant's property bordered residentially zoned properties. Once the defendant's entire property was rezoned to DB1, the regulations required a landscape buffer between it and the residentially zoned properties. Monroe Zoning Regs. (Rev. to February, 2013), art. IX, § 117-902(G)(2). Section 117-902(G)(2) specified that the landscape buffer, for property zoned DB1, must consist of at least three rows of evergreen trees planted fifteen feet apart. The regulations provided two exceptions: (1) if the commission concluded that the property's natural vegetation formed an effective buffer then the commission had the discretion to augment or satisfy the landscaping requirement, or (2) if the buffer area was an inland wetlands area, then the commission, in order to preserve and protect the inland wetlands, had the discretion to waive the buffer requirement or prescribe alternative requirements. The commission did not specifically address the landscape buffer requirement or either of these exceptions when it deliberated on the defendant's applications. "As a preliminary matter, we set forth the standard of review.... The trial court had to decide whether the board correctly interpreted the section [of the regulations] and applied it with reasonable discretion to the facts.... Because the court, in interpreting the regulations, made conclusions of law in its memorandum of decision [in this case], our review is plenary." (Internal quotation marks omitted.) Raymond v. Zoning Board of Appeals, 76 Conn.App. 222, 228-29, 820 A.2d 275, cert. denied, 264 Conn. 906, 826 A.2d 177 (2003). "When ruling upon an application for a special permit, a planning and zoning board acts in an administrative capacity.... Generally, it is the function of a zoning board or commission to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply.... In applying the law to the facts of a particular case, the board is endowed with a liberal discretion, and its action is subject to review by the courts only to determine whether it was unreasonable, arbitrary or illegal." (Citations omitted; internal quotation marks omitted.) Double I Ltd. Partnership v. Plan & Zoning Commission, 218 Conn. 65, 72, 588 A.2d 624 (1991). "We, in turn, review the action of the trial court.... The burden of proof to demonstrate that the board acted improperly is upon the party seeking to overturn the board's decision [in this case, the plaintiffs].... Courts are not to substitute their judgment for that of the board...." (Citations omitted; internal quotation marks omitted.) Raymond v. Zoning Board of Appeals, supra, 76 Conn.App. at 229, 820 A.2d 275. "The ultimate issue is whether the trial court was correct in ruling that the commission's decision to grant the special permit was not arbitrary, illegal or an abuse of its discretion.... The rules of statutory construction apply to the interpretation of local regulations.... We look first to the language of the regulation to determine the intent of the enacting body.... If the language of the regulation is ambiguous, the court can look to its purpose as an aid in construing it." (Citations omitted.) Double I Ltd. Partnership v. Plan & Zoning Commission, supra, 218 Conn. at 72-73, 588 A.2d 624. "A special [exception] allows a property owner to use his property in a manner expressly permitted by the local zoning regulations.... The proposed use . must satisfy standards set forth in the zoning regulations themselves as well as the conditions necessary to protect the public health, safety, convenience, and property values.... Acting in this administrative capacity, the [zoning commission's] function is to determine whether the applicant's proposed use is expressly permitted under the regulations, and whether the standards set forth in the regulations and the statute are satisfied." (Internal quotation marks omitted.) MacKenzie v. Planning & Zoning Commission, supra, 146 Conn.App. at 441, 77 A.3d 904. The trial court interpreted the scope of the inland wetlands exception, however, we find it unnecessary to do so. The defendant argues that the commission had the authority to waive the landscape buffer requirement under either the inland wetlands exception or the natural vegetation exception. The commission did not specifically address these regulatory exceptions, but it did deliberate about the landscaping of the rear portion of the defendant's property. In its review of the defendant's application for a special exception, the commission was acting in an administrative capacity. The commission was presented with evidence that showed that significant portions of the perimeter of the defendant's property were in inland wetland areas. The regulation was unambiguous as to the commission's authority to waive the landscape buffer requirement when a buffer would be located within an inland wetland area: "[T]he Commission, at its discretion, may prescribe alternative buffer requirements or waive buffer requirements in order to preserve and protect [inland] wetland area[s]...." Monroe Zoning Regs. (Rev. to February, 2013), art. IX, § 117-902(G)(4). The commission did not mandate an alternative buffer, but it did accept the defendant's plan to add plants and trees as alternatives to evergreens and to grant the town a conservation easement on the rear portion of the property. The remainder of the perimeter of the defendant's property, where it abutted residential property, supported natural vegetation consisting primarily of heavy woods. The commission was aware that some trees would be removed, and each commissioner visited the property. We reasonably can infer that by approving the special exception, four commissioners accepted that the remaining natural vegetation provided a sufficient buffer. This is a judgment that was within the commission's discretion: "Where in the judgment of the Commission sufficient natural vegetation exists it may be substituted in total . to establish an effective buffer within the intent of the regulations." Monroe Zoning Regs. (Rev. to February, 2013), art. IX, § 117-902(G)(3). The commission's decision to accept the natural vegetation as an effective buffer was further buttressed by the accepted terms of the special exception. The only structure that was approved for the rear portion of the property was an underground septic system. In addition, the conservation easement granted by the defendant to the town would ensure that natural vegetation stayed in place. The commission also noted that the existing variations in elevation between the properties would screen the commercial development. Finally, the defendant's attorney stated to the commission that the proposed McDonald's restaurant and the nearest home were at least 500 feet apart. The commission was within its authority to exercise liberal discretion to apply the regulations to the facts that it was presented with concerning the property and landscaping. See Double I Ltd. Partnership v. Plan & Zoning Commission, supra, 218 Conn. at 72, 588 A.2d 624. It was within the commission's discretion to determine if the remaining natural vegetation provided an effective landscape buffer. The plaintiffs have not presented sufficient evidence to overcome their burden to demonstrate that the commission's decision to grant the special exception was unreasonable, arbitrary or illegal. See id. Accordingly, the plaintiffs' first claim fails. II The plaintiffs also claim that the court improperly concluded that a 2009 variance granted to the defendant by the board was not subject to collateral attack. The variance granted the defendant the right to construct a restaurant with a drive-up window on its property even though a drive-up window was specifically prohibited in the DB1 zone. The plaintiffs did not appeal the decision of the board. The 2009 variance formed the basis of the commission's authority to grant the 2013 special exception to the defendant. The plaintiffs argue that the variance should not be allowed to stand because the board exceeded its authority when it granted the variance in 2009. We disagree. The following additional facts are relevant to this claim. In 2009, the board approved the defendant's application for a variance from the DB1 zoning regulations after concluding that the defendant suffered an unusual hardship. The defendant's hardship claim derived from the commission's adoption of a town wide plan of conservation and development in 2000 that called for the merger of the DB1 and design business district two (DB2) zones in order to form a single design business district zone. In 2009, when the defendant applied for the variance, the town had not yet changed its zoning regulations to reflect the plan's vision. According to the defendant's variance application, new zoning regulations were proposed in 2007 that would allow restaurants with drive-up windows in the new zone if certain conditions were met, but the regulations had not been adopted as of the time the defendant applied for a hardship waiver. The board approved the variance after concluding that the defendant had established the requisite hardship. The plaintiffs were notified of the hearing, but did not appeal the decision. We begin by setting forth our standard of review. "[W]e have long held that because [a] determination regarding a trial court's subject matter jurisdiction is a question of law, our review is plenary.... [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction...." (Internal quotation marks omitted.) Caltabiano v. L & L Real Estate Holdings II, LLC, 122 Conn.App. 751, 758, 998 A.2d 1256 (2010). "First, we have uniformly held that failure to file a zoning appeal within the statutory time period deprives the trial court of jurisdiction over the appeal.... We have also consistently held that when a party has a statutory right of appeal from the decision of an administrative agency, he may not, instead of appealing, bring an independent action to test the very issue which the appeal was designed to test.... Moreover, we have ordinarily recognized that the failure of a party to appeal from the action of a zoning authority renders that action final so that the correctness of that action is no longer subject to review by a court.... All of these rules rest in large part, at least in the zoning context, on the need for stability in land use planning and the need for justified reliance by all interested parties-the interested property owner, any interested neighbors and the town-on the decisions of the zoning authorities." Citations omitted; internal quotation marks omitted.) Upjohn Co. v. Zoning Board of Appeals, 224 Conn. 96, 102, 616 A.2d 793 (1992). Our Supreme Court has recognized "that there may be exceptional cases in which a previously unchallenged condition was so far outside what could have been regarded as a valid exercise of zoning power that there could not have been any justified reliance on it, or in which the continued maintenance of a previously unchallenged condition would violate some strong public policy. It may be that in such a case a collateral attack on such a condition should be permitted." Id., at 104-105, 616 A.2d 793. "As [the] language in Upjohn Co. indicates, it must be an 'exceptional [case]' that will justify disturbing the stability of unchallenged land use decisions.... Thus, a litigant who seeks to invoke this exception must meet a very high standard." (Citation omitted.) Torrington v. Zoning Commission, 261 Conn. 759, 768, 806 A.2d 1020 (2002). In 2009, the plaintiffs received notice of the pendency of the variance application and the hearing date. They did not appeal from the board's decision made after the public hearing. More than six years later the plaintiffs now seek to overturn that decision, arguing in this appeal that this is an exceptional case because the variance for a restaurant with a drive-up window was not a valid exercise of zoning power and there could not have been any justified reliance on it. However, when these same plaintiffs appeared before this court in MacKenzie, challenging the defendant's similar restaurant plan that also relied on the 2009 variance, the plaintiffs did not raise this claim. See MacKenzie v. Planning & Zoning Commission, supra, 146 Conn.App. at 408-409, 77 A.3d 904. After a careful review of the documents in the record of this case that relate in any way to the 2009 variance hearing, we cannot conclude that the board exceeded its authority by granting the 2009 variance. The variance granted the defendant the right to construct a restaurant with a drive-up window on its property despite language in the zoning regulations that prohibited use waivers. However, "[i]t is not enough that the conduct in question was in violation of the applicable zoning statutes or regulations. It must be shown that the conduct was so far outside what could have been regarded as a valid exercise of zoning power that there could not have been any justified reliance on it." Torrington v. Zoning Commission, supra, 261 Conn. at 768, 806 A.2d 1020. The documents relating to the record of the 2009 variance hearing are devoid of any evidence placed before the board relevant to the contention that a drive-up window changes the "use" of a restaurant for purposes of the regulations. Interpretation of the zoning regulations is a function of a zoning board of appeals. "The variance power exists to permit what is prohibited in a particular zone.... [T]he zoning board of appeals is the court of equity of the zoning process...." (Citations omitted; internal quotation marks omitted.) MacKenzie v. Planning & Zoning Commission, supra, 146 Conn.App. at 429, 77 A.3d 904. The record does reflect that, in deciding to grant the variance, the board credited the defendant's hardship claim that the regulations were at odds with changes to the town's plan for conservation and development. After considering the language of the regulations and its plan for development, we conclude that the board's decision was not "so far outside what could have been regarded as a valid exercise of zoning power that there could not have been any justified reliance on it...." Upjohn Co. v. Zoning Board of Appeals, supra, 224 Conn. at 105, 616 A.2d 793. Therefore we are not persuaded that the 2009 variance should be subject to collateral attack. The judgment is affirmed. In this opinion the other judges concurred. The commission also granted the application filed by the defendant Real Time Solutions, LLC, to rezone its entire property from residential zoning to commercial zoning. The plaintiffs did not appeal this decision to this court. Although the commission also was named as a defendant in the underlying proceeding, it has not filed an appellate brief with this court. For clarity, we refer in this opinion to Real Time Investments, LLC, as the defendant. Article XVIII, § 117-1800, of the February, 2013 revision of the Monroe Zoning Regulations (regulations) provides in relevant part: "Application may be made to the Planning and Zoning Commission for a special exception permit to establish uses specified elsewhere in these regulations as being permitted by special exception...." All references in this opinion are to the February, 2013 revision of the regulations unless otherwise indicated. Article IX, § 117-900, of the February, 2013 revision of the Monroe Zoning Regulations provides in relevant part: "The owner or owners of a tract of land may petition for the establishment of a design district (D) only, coincidentally with an application for special exception permit and development proposal which shall be proposed and developed in conformance with these regulations...." Permitted uses within DB1 included: "Restaurants and diners only where customers are seated at tables or counters and where seventy-five percent (75%) of the seats are within an enclosed building. Such food service may include catering and takeout service, but shall not include a take-out or drive-up window, or opening to the outdoors (Class F). " (Emphasis added.) Monroe Zoning Regs. (Rev. to February, 2013), art. XVIII, § 117-1101(A)(5). Article XI, § 117-1104(B), of the February, 2013 revision of the Monroe Zoning Regulations states: "All required yards abutting a residential and farming district shall be a landscaped buffer, as provided in Section 117-902[G]." Article IX, § 117-902(G)(2), of the February, 2013 revision of the Monroe Zoning Regulations states in relevant part: "[A] landscape buffer shall consist of no fewer than three (3) rows of suitable evergreen trees of one and one-half (1 ½) inches caliper...." "At that public hearing, Gumpper stated that 'I am here tonight on behalf of Duchess [restaurant] of Monroe, which has an operation at 139 Main Street in Monroe.' " MacKenzie v. Planning & Zoning Commission, 146 Conn.App. 406, 411 n. 5, 77 A.3d 904 (2013). Attorney Gumpper represented the plaintiffs on appeal in MacKenzie as well as in the present appeal. At the public hearing, the following exchange took place among one commissioner, Karen Martin, the defendant's counsel, Raymond Rizio, and its engineer: "[Commissioner Martin]: Would you . [c]onsider putting in additional landscaping on the parcel that you're asking us to do a zone change on? . [The] [b]ack three acres. "[Attorney Rizio]: We are putting [in] additional landscaping.... "[Commissioner Martin]: I know you can't do a lot because of the septic, but. "[The Defendant's Engineer]: Well no, we can't do a lot because of the wetlands too. In this area in right in here we are going to excavate the driveway that was created there, you know, a long time ago. We are entirely landscaping that area, and also this area in here with plants that the [Monroe Inland] Wetlands Commission has approved as appropriate for that use.... "[Commissioner Martin]: What about the borders between the properties? . "[The Defendant's Engineer]: Well, what we've proposed is this, to the extent that's possible, we'll leave the traits. The only areas [inaudible] these bushes in here are, vegetation, outside limits of the septic system that will create a buffer and are compatible with being next to the septic system and the root system and will grow under the shade of the trees. The only place it will not have landscaping is this area [where the septic system will go] that has to have this 'no mow' grass because that's what's consistent with.... "[Commissioner Martin]: What about on the top? . It's all wooded? "[The Defendant's Engineer]: It's all extensively wooded. And no we were not planning on touching it.... [A]ll this area in here is an overstory of oak, maple, I think there's a couple beech in there...." During deliberations, three commissioners concurred with the statement of Commissioner Jim Weinberg: "The main concern to me was if you do a zone change to the rear part of that lot, and the project that's scheduled for this does not come to [inaudible] what happens? . [Based on the defendant's presentation] [t]here's so many safeguards . that the rear lot will never get, be developed . in any practical sense unless there's a huge change in our own regulations simply because of the . wetlands issues . there's nothing that's going to be built back there other than that septic system that's envisioned by this project. So I actually have no objection or no question whatsoever about the zone change at this point." Commissioner Patrick O'Hara stated during deliberations on the special exception permit: "[A]s far as an appropriate building, the current residential properties will be screened not only from woods, but from an elevation in height...." In addition to the claims raised with this court, the plaintiffs also argued to the trial court that the zone change should be found invalid because the defendant had not complied with statutory notice requirements regarding a rezoning application. The court ruled that there was sufficient evidence to conclude that the statutory requirements had been met. The plaintiffs did not appeal the court's judgment on this claim. We agree with the court that the commission did not abuse its discretion by granting the special exception, although on different grounds from those articulated by the court. The court reached its conclusion only after interpreting the meaning of the inland wetland exception to the landscape buffer requirement contained within § 117-902(G)(4) of the regulations. We conclude that it was not necessary to interpret that regulation in order to resolve this case. Article IX, § 117-902(G)(3), of the February, 2013 revision of the Monroe Zoning Regulations states: "Where in the judgment of the Commission sufficient natural vegetation exists it may be substituted in total or portions in lieu of (1) or (2) [the sections requiring rows of evergreen trees] or may be augmented by the requirements of (1) or (2) . to establish an effective buffer within the intent of the regulations." Article IX, § 117-902(G)(4), of the February, 2013 revision of the Monroe Zoning Regulations states: "Where area required for buffer is an inland wetland area, the Commission, at its discretion, may prescribe alternative buffer requirements or waive buffer requirements in order to preserve and protect said wetland area consistent with the intent of the Connecticut General Statutes." The 2000 Plan of Conservation and Development stated in relevant part: "The Design Business districts (DB-1 and DB-2) are essentially identical with regard to development requirements (lots size, dimensions, etc.). The only major distinction between the zones relates to some uses that are permitted only in the DB-2 zone (such as service stations, take-out food service, vehicular sales and service). "To simplify the structure of the zoning regulations, the regulations should be changed to merge the DB-1 and DB-2 zones together. The uses that are currently allowed should be reviewed and categorized as permitted uses, accessory uses, conditional uses, or eliminated from the zone." Monroe's zoning regulations were changed in October, 2013. The revised regulations allow restaurants with a drive-up window in the business district 1 zone conditioned upon approval of a special exception permit. Monroe Zoning Regs., art. 4, § 4.1.3(N).

12485342

Samuel KEARSE v. Priscilla B. TAYLOR et al.

Kearse v. Taylor

2016-05-31

No. 38031.

389

396

140 A.3d 389

140

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

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

Fastcase

Samuel KEARSE v. Priscilla B. TAYLOR et al.

Samuel KEARSE v. Priscilla B. TAYLOR et al. No. 38031. Appellate Court of Connecticut. Argued April 13, 2016. Decided May 31, 2016. Robert M. Singer, Hamden, for the appellants (defendants). Jeremy C. Virgil, Bridgeport, with whom, on the brief, was Michael S. Samsel, for the appellee (plaintiff). LAVINE, ALVORD and SHELDON, Js.

3596

21776

PER CURIAM. The defendants, Priscilla B. Taylor and John Nicolas Tieman, temporary administrator of the estate of Paul Bradley Taylor, Jr., appeal from the trial court's denial of their motion to open a default judgment rendered after a hearing in damages. On appeal, the defendants claim that the court improperly denied their motion as untimely because the court failed to send them notice that a default judgment had been rendered against them. We reverse the judgment of the trial court and remand the case for further proceedings. The record reveals the following relevant factual and procedural history. On January 17, 2007, the plaintiff suffered severe burn injuries while a tenant at the New Haven apartment building owned by the defendants. On December 1, 2008, he commenced the present action against the defendants, alleging that he was relighting a gas stove for purposes of generating heat for his dwelling when his clothing caught fire. He alleged that the defendants were liable for the injuries he sustained because they knew the apartment building was not adequately heated and they failed to maintain and repair the premises. On December 19, 2008, Attorney Patricia A. Cofrancesco filed an appearance on behalf of the defendants. On July 29, 2009, Attorney Howard A. Lawrence filed an appearance on behalf of the defendants in lieu of Attorney Cofrancesco's appearance. While the action was pending, the plaintiff filed an application for a prejudgment remedy against Priscilla Taylor, which was granted by the court, A. Robinson, J., on January 24, 2012, in the amount of $2 million. On March 20, 2012, the plaintiff filed a motion to default the defendants for failure to disclose assets to satisfy the prejudgment remedy and for failure to plead. Judge Robinson granted the plaintiff's motion, absent objection, on April 16, 2012. On July 27, 2012, apparently unbeknownst to the parties or the plaintiff's counsel, Lawrence was placed on inactive status for an indefinite period by the court, Silbert, J., in Disciplinary Counsel v. Lawrence, Superior Court, Judicial District of New Haven, Docket No. CV-12-6028710-S (2012). In that order, the court appointed "Attorney Michael Moskowitz . as Trustee to inventory Mr. Lawrence's files and protect the interests of Mr. Lawrence and of his clients." On September 20, 2012, which was approximately two months after Lawrence had been placed on inactive status, the plaintiff filed a motion for the court to render a judgment on the default entered on April 16, 2012, and a request for a hearing in damages. The plaintiff certified that he sent a copy of that motion and request to Lawrence. No notice was sent to the individual defendants. Judge Robinson granted the motion for judgment on the default on October 22, 2012. A court-generated notice of the ruling was sent to all counsel of record. At that time, the court file showed Lawrence as the defendants' attorney of record even though he had been placed on inactive status. Accordingly, notice was sent to Lawrence. A hearing in damages was scheduled for November 28, 2012. On November 27, 2012, the plaintiff filed exhibits for the hearing, including the plaintiff's affidavit, photographs of the plaintiff at the hospital and during recovery, a medical bill summary, and 369 pages of medical records. At the outset of the hearing in damages, the court, Hon. John C. Flanagan, judge trial referee, expressly acknowledged the absence of Lawrence and the defendants. In response, the court clerk informed the court that Lawrence's juris number was inactive. The court then stated: "Well, I happen to know from a collateral issue that his right to practice was suspended by Judge Silbert. He did not disbar him, but he simply suspended his right to practice law until some medical issues have been resolved.... Oh, and incidentally, also I learned that another individual had been appointed trustee." The court asked the clerk whether Lawrence had ever withdrawn his appearance for the defendants, and the clerk responded "no." The court noted that there was no evidence in the file that Lawrence had referred this matter to any other attorney to represent the defendants. The court then stated that it had concerns: "The lawyer [Lawrence] did appear in the case and the lawyer has never filed a motion to withdraw his appearance, so he is still the counsel of record and it disturbs me a little bit that the defendants are not presently here to defend the matter in any way." Nevertheless, because the defendants had been defaulted, so that liability was not an issue, the court decided to proceed with the hearing in damages. "On the other hand, I do have the information which consists primarily of representations by the attorney representing the plaintiff, so it would seem to me, that fact coupled with the historical series of events with respect to the liability portion of the case would leave me to believe that it's an order of the court at this time to make a finding with respect to the amount of money that would represent a fair, just and reasonable compensation for the injuries and losses the plaintiff has sustained." The court thereafter referred to the medical bills and the "emotional impact" of the injuries on the plaintiff, and rendered a judgment in favor of the plaintiff in the amount of $2,841,914.84. On the "order" reflecting the November 28, 2012 judgment after a hearing in damages, it was noted that counsel for the plaintiff had been present at the time the judgment was rendered, that a court-generated notice of the judgment had been issued on December 3, 2012, to all counsel of record, and that a "copy of [the] judgment [was] mailed to Mike Moscowitz (sic), trustee, on 12/3/12." On March 27, 2015, the defendants' current counsel filed an appearance on behalf of the defendants in lieu of Lawrence's July, 2009 appearance. On that same date, the defendants filed a motion to open the November 28, 2012 default judgment. In that motion, the defendants claimed that they never received notice that the judgment had been rendered and that they had a good and valid defense to the action. With respect to their defense, the defendants claimed that "the ambulance report and hospital records submitted to the court indicate that the plaintiff set himself on fire thereby attempting suicide, causing his own injuries." In support of their motion, the defendants filed a memorandum of law and attached copies of various pages from the medical reports. The plaintiff filed an objection to the defendants' motion, arguing that the motion was untimely because it had not been filed within four months of the date that they received notice of the default judgment. In support of his objection, the plaintiff filed his attorney's affidavit, copies of pleadings and court orders in the file, and copies of documents filed in the bankruptcy court in connection with a chapter 13 bankruptcy petition filed by Priscilla Taylor in 2013. Thereafter, both parties filed supplemental replies to support their respective positions. On April 28, 2015, the defendants filed a request for oral argument and the opportunity to present testimony with respect to their motion to open the judgment. That request was denied, no hearing was held, and Judge Flanagan issued his ruling on May 21, 2015, denying the defendants' motion to open the judgment without explanation. The defendants filed an appeal from the court's judgment on June 5, 2015, which they amended on June 8, 2015, to correct the name of the defendant from Patricia Taylor to Priscilla Taylor. On June 9, 2015, the defendants filed an additional appeal form that, this time, showed the payment of an entry fee and the court clerk's signature and date. On June 29, 2015, the court issued a memorandum of decision that provided the reasons for its denial of the defendants' motion to open the judgment. The court noted that the notice of the default judgment had been sent to Moskowitz, the trustee for Lawrence, and that the defendants' motion was not filed within the four month period required by Practice Book § 17-43. The defendants filed a motion for articulation with this court on July 6, 2015, requesting that the trial court clarify the last paragraph in its memorandum of decision. The trial court scheduled the motion for argument on July 29, 2015. By memorandum of decision dated July 31, 2015, the trial court provided the following articulation: "The court heard oral arguments on July 29, 2015. Judgment entered on November 28, 2012. The original attorney's right to practice law was suspended. Attorney Moscowitz (sic) was appointed trustee for Attorney Lawrence. Copy of Judgment was mailed to Mike Moscowitz (sic), Trustee on December 3, 2012 (see attached order). No notice was sent to the defendants." On appeal, the defendants claim that the court's memoranda of decision indicate that the court improperly considered the notice sent to Moskowitz to be the requisite notice of the default judgment to the defendants and, therefore, improperly determined that the defendants' motion to open the judgment was untimely because it was not filed within the four month period required by Practice Book § 17-43. Specifically, the defendants argue that Lawrence, being on inactive status, was no longer representing them and that Moskowitz, although the trustee for Lawrence, never filed an appearance on behalf of the defendants and did not represent them. The defendants claim that they were unrepresented since July 27, 2012, and that no notice of the default judgment had been sent to them individually. Accordingly, it is their position that the four month deadline for filing a motion to open the judgment never commenced. We begin with the legal principles that guide our analysis of the defendants' claim. While courts have an inherent power to open, correct and modify judgments, the duration of this power is restricted by rule of practice. Practice Book § 17-43. In deciding whether a motion to open a judgment is timely, a court must determine whether it was filed within four months of the date that the notice of the default judgment was sent to the party in default. See Johnson v. Atlantic Health Services, P.C., 83 Conn.App. 268, 276, 849 A.2d 853 (2004). "A ruling on a timely filed motion to open is within the trial court's discretion, and appellate review is limited to whether the court has acted unreasonably or in abuse of its discretion.... Whether a party has been given notice is a question of fact...." (Citations omitted.) Batory v. Bajor, 22 Conn.App. 4, 8-9, 575 A.2d 1042, cert. denied, 215 Conn. 812, 576 A.2d 541 (1990). Accordingly, in the present case, we review the trial court's finding that notice properly was given to the defendants under the clearly erroneous standard of review. Id., at 9, 575 A.2d 1042. "A finding of fact is clearly erroneous when there is no evidence in the record to support it . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." (Internal quotation marks omitted.) Noroton Properties, LLC v. Lawendy, 154 Conn.App. 367, 378, 107 A.3d 980 (2014). In the present case, the court concluded that the motion to open was not timely filed because more than four months had passed since the date that notice of the default judgment had been sent to Moskowitz, as trustee for Lawrence. This finding is clearly erroneous because Lawrence was not able to practice law while he was placed on inactive status, Moskowitz had not filed an appearance on behalf of the defendants and was not representing them, and no notice of the default judgment was sent by the court to the individual defendants. The defendants were unrepresented at the time the default judgment was rendered, yet they were not sent notice that they were liable for a $2.8 million judgment in favor of the plaintiff. Notice of the judgment must be sent to the defaulting party in order to determine the date that commences the four month period within which that party may file a motion to open the judgment. "[T]he right to move to open and vacate a judgment assumes that the party who is to exercise the right be given the opportunity to know that there is a judgment to open.... Where the defendants have not received notice of the default judgment . the time within which they may move to set aside the judgment is extended by the delay in notification." (Citation omitted; internal quotation marks omitted.) Johnson v. Atlantic Health Services, P.C., supra, 83 Conn.App. at 276-77, 849 A.2d 853. The plaintiff argues that the trial court could have determined that the defendants received actual notice of the default judgment through the various documents filed in Priscilla Taylor's federal bankruptcy proceedings. He claims that the dates on those bankruptcy documents clearly demonstrate that the defendants were made aware of the default judgment more than four months prior to the filing of the motion to open, thereby making the motion untimely. That argument was made before the trial court and copies of the documents were submitted to the court. The defendants responded that none of the referenced documents provided them with the requisite notice, and they provided reasons for discounting the plaintiff's argument. Even though the parties briefed the issue of the bankruptcy court filings, the trial court made no mention whatsoever of those documents in its June 29, 2015 memorandum of decision or in its July 31, 2015 articulation. There are no factual findings by the trial court with respect to the plaintiff's claim. The only factual determination made by the court was that notice of the default judgment had been sent to Moskowitz as the trustee for Lawrence on December 3, 2012. For the reasons previously discussed, notice to Moskowitz was insufficient notice to the individual defendants. The issue of whether the defendants received notice of the rendering of the default judgment, and, if so, when they received that notice, is a question of fact for the factfinder. "It is well settled that we do not find facts." Bria v. Ventana Corp., 58 Conn.App. 461, 466, 755 A.2d 239 (2000) ; see also Multilingual Consultant Associates, LLC v. Ngoh, 163 Conn.App. 725, 737, 137 A.3d 97 (2016). We, therefore, cannot make that determination. The only basis provided for the trial court's conclusion that the defendants' motion to open the judgment was untimely was its factual finding that notice had been given to the defendants because it had been sent to Moskowitz on December 3, 2012; that determination was clearly erroneous. In order to reach the merits of the defendants' claims in their motion, the factfinder must first determine at an evidentiary hearing whether the defendants received notice of the default judgment and, if so, on what date they received such notice. The court would then determine whether their motion was timely filed. If the court determines that the defendants' motion to open the judgment was untimely, then it must deny that motion. If, however, the court concludes that the defendants' motion to open was timely filed, then it must reach the merits of the defendants' motion. See Noethe v. Noethe, 18 Conn.App. 589, 596, 559 A.2d 1149 (1989). Accordingly, we conclude that this matter must be remanded to the trial court for that purpose. The judgment is reversed and the case is remanded for further proceedings consistent with this opinion. This action initially was commenced against Priscilla B. Taylor and her husband, Paul Bradley Taylor, Jr., who died in February, 2009. The plaintiff thereafter moved to substitute the temporary administrator of his estate in place of the deceased. The court, Silbert, J., granted the motion to substitute the temporary administrator as a party defendant on January 20, 2011. The court's order noted that Priscilla Taylor did not appear at the hearing on the application for the prejudgment remedy. Practice Book § 2-56 provides in relevant part: "During the time an order placing an attorney on inactive status is in effect, such attorney shall be precluded from practicing law...." Practice Book § 17-34(a) provides: "In any hearing in damages upon default, the defendant shall not be permitted to offer evidence to contradict any allegations in the plaintiff's complaint, except such as relate to the amount of damages, unless notice has been given to the plaintiff of the intention to contradict such allegations and of the subject matter which the defendant intends to contradict, nor shall the defendant be permitted to deny the right of the plaintiff to maintain such action, nor shall the defendant be permitted to prove any matter of defense, unless written notice has been given to the plaintiff of the intention to deny such right or to prove such matter of defense." In the plaintiff's affidavit filed with the court for its consideration at the hearing in damages, the plaintiff averred that his medical bills through April 27, 2007, totaled $841,914.84. The court added $2 million to that amount, for a total award of $2,841,914.84. In his affidavit, the plaintiff had requested compensation in the amount of $50 million as fair, just and reasonable damages. At oral argument before this court, the parties' counsel were of the impression that the court knew Moskowitz had been appointed the trustee for Lawrence's files and that the court ordered notice of the judgment to be mailed to Moskowitz during the hearing in damages. The transcript of November 28, 2012, however, reflects that the court was aware that a trustee had been appointed, but there was no mention of Moskowitz' name or an order of the court to mail a copy of the judgment to Moskowitz. Nevertheless, the order itself does provide that a copy of the judgment was mailed to Moskowitz on December 3, 2012. In the medical records submitted by the plaintiff to the court for the hearing in damages, there are several pages with notations that the plaintiff's injuries were self-inflicted. For example, in the ambulance trip report is the statement that the plaintiff doused himself with kerosene and ignited himself on fire. On the ambulance report transfer form, under the history of present illness, is the statement that the plaintiff had self-inflicted burns caused by dousing himself with kerosene and then lighting himself on fire. That form further indicates that the plaintiff was depressed over the recent loss of a sibling. Similar notations appear on the Yale-New Haven Hospital progress notes and the Bridgeport Hospital operative report and discharge summary. Months later, it appears that the plaintiff reported to some of his health care providers that the incident was accidental in nature, although other providers continued to characterize the incident as an attempted suicide. The court's June 29, 2015 memorandum of decision states in its entirety: "The instant case which has been pending since 2008 came to the attention of several judges over the years before it was assigned to this court as a hearing in damages on November 28, 2012. "Following an evidential hearing judgment in favor of the plaintiff was entered on said date. The instant motion to open the judgment was not filed until March 27, 2015 which was untimely as it was well beyond the four month limitation articulated in Connecticut Practice Book 17-43. "The thrust of the defendants' reason for failure to comply with the four month time limitation is they lacked notice of the judgment. "According to the clerk notice of the judgment was sent to Attorney Moskowitz, trustee for Attorney Lawrence, on December 3, 2012 whereas noted above the motion to open judgment was far beyond time prescribed by the Connecticut Practice Book. "Motion to open judgment is denied." Practice Book § 17-43(a) provides in relevant part: "Any judgment rendered or decree passed upon a default or nonsuit may be set aside within four months succeeding the date on which notice was sent, and the case reinstated on the docket on such terms in respect to costs as the judicial authority deems reasonable, upon the 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 such judgment or the passage of such decree, and that the plaintiff or the defendant was prevented by mistake, accident or other reasonable cause from prosecuting or appearing to make the same...." (Emphasis added.) It is undisputed that Moskowitz never filed an appearance on behalf on the defendants in this action. Practice Book § 17-43, formerly Practice Book § 377, which sets forth the rule for opening judgments on default, was amended on June 21, 1996, to take effect October 1, 1996. Prior to that amendment, Practice Book (1978) § 377 provided in relevant part that "[a]ny judgment rendered . upon a default or nonsuit may be set aside within four months succeeding the date on which it was rendered ." (Emphasis added.) Practice Book § 17-43 now provides that "[a]ny judgment rendered . upon a default or nonsuit may be set aside within four months succeeding the date on which notice was sent ." (Emphasis added.) See Johnson v. Atlantic Health Services, P.C., 83 Conn.App. 268, 275 n. 3, 849 A.2d 853 (2004).

12491341

David H. FAILE, Jr. v. TOWN OF STRATFORD Paul A. Lange v. Town of Stratford N759ZD, LLC v. Town of Stratford

Faile v. Town of Stratford

2017-10-17

AC 38912

206

222

172 A.3d 206

172

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 Westbrook, Js.

David H. FAILE, Jr. v. TOWN OF STRATFORD

David H. FAILE, Jr. v. TOWN OF STRATFORD Paul A. Lange v. Town of Stratford N759ZD, LLC v. Town of Stratford AC 38912 Appellate Court of Connecticut. Argued March 9, 2017 Officially released October 17, 2017 Paul M. Grocki, for the appellants (plaintiffs). Bryan L. LeClerc, for the appellee (defendant). DiPentima, C.J., and Mullins and Westbrook, Js.

7956

48272

MULLINS, J. In this joint tax appeal, the plaintiffs, David H. Faile, Jr., Paul A. Lange, and N759ZD, LLC (LLC), appeal from the judgments of nonsuit, rendered by the trial court, in favor of the defendant, the town of Stratford (town). They also appeal from the court's denial of their motions to open the nonsuits. On appeal, the plaintiffs claim that the court's findings that they violated its orders were clearly erroneous, and that, even if we assume, arguendo, that they did violate the orders, the court abused its discretion in rending judgments of nonsuit. We agree with the plaintiffs. Therefore, we reverse the judgments of the trial court. The following facts, garnered from the record, inform our review. At the time this action was commenced, the plaintiffs owned aircraft hangars, known as T-Hangars (hangars), located at Sikorsky Memorial Airport in Stratford. The hangars were located on land that was leased from the city of Bridgeport. Faile owned two hangars, A-9 and B-11; the LLC owned one hangar, A-3. Lange is the principal of the LLC and a member of the law firm, Law Offices of Paul A. Lange, LLC, which is counsel of record for the plaintiffs in this case. The town assessed and taxed the hangars on the grand lists for 2008 and 2009. The plaintiffs appealed the assessments and their taxes to the Board of Assessment Appeals of the town (board), alleging, in relevant part, that the valuations were excessive. After each appeal was denied by the board, the plaintiffs filed appeals in our Superior Court. Initially, the appeals were stayed pending the Supreme Court's decision in Stratford v. Jacobelli, 317 Conn. 863, 865-66, 120 A.3d 500 (2015) (concluding that hangars are taxable real property rather than personal property). Once the stay was lifted, the court, on October 1, 2015, sent notice to the parties of a pretrial settlement conference. The court assigned that conference for November 3, 2015. The notice provided in relevant part: "This case is assigned for pretrial on [November 3, 2015] at 10 a.m. . The following must attend: "1) The attorney who will try the case, unless otherwise ordered by Judge [George] Levine; "2) The attorney who has ultimate authority to make a recommendation to the client, if different from the attorney described in # 1 above. "If plaintiff is a person(s), the plaintiff(s) must attend. The assessor must attend. Any appraiser retained must attend but need not complete an appraisal report for pretrial. If plaintiff is a corporation or other type of legal entity, a principal who has ultimate authority to negotiate a settlement must be present. 'Ultimate authority' means the ability to resolve the case by withdrawing it without any change in assessment, if persuaded it is in plaintiff's best interests, without checking with anyone else. Someone with authority to negotiate a settlement at a preestablished figure does not have 'ultimate authority.' A person familiar with the finances and management of the subject property must attend. "If this date is inconvenient, please select other dates with all counsel/pro se parties and e-file a motion for continuance with proposed dates. "Failure to comply with this order may result in sanctions, including a judgment of nonsuit or default. If no principal can attend, the parties should contact the court." On November 4, 2015, the court issued another order, which provided in relevant part: "By agreement of the parties, the . matter has been scheduled for another pretrial conference, to be conducted on [December 2, 2015] . "All terms of the original pretrial order remain in effect with the following modifications: "1) The following must attend: Each plaintiff and/or entity and every person who will be called to testify at trial. "2) Counsel for all parties must bring every piece of paper which will be offered in evidence. "3) Counsel for each party must be prepared to state all the testimony to which each witness is expected to testify, on a count by count basis and on a year by year basis. "4) Failure of any plaintiffs to appear will result in a judgment of nonsuit. "Failure to comply with these terms may result in sanctions, including nonsuit or default." On November 18 and 19, 2015, the plaintiffs filed motions for continuance of that settlement conference on the ground that discovery was outstanding and the plaintiffs had noticed, but not yet taken, the deposition of the town's tax assessor; the court denied the motions on the same days they were filed. On November 25, 2015, the town filed a motion for extension of time, requesting that the court give it a thirty day extension to respond to the plaintiffs' discovery requests. There is no indication in the record that the court acted on the town's motion. On Wednesday, December 2, 2015, the parties appeared for the settlement conference. Lange, however, was absent due to his hospitalization on Sunday, November 29, 2015, just a few days before. Attorney Paul Grocki, an attorney with the Law Offices of Paul A. Lange, LLC, was present on behalf of the plaintiffs. Faile also was present. Appearing on behalf of the town was Byran LeClerc. The settlement conference was held in chambers, off the record, but afterward, the court went on the record to consider the town's motions for nonsuit. During the hearing, the court separately addressed each of the plaintiffs' appeals, with the bulk of the discussion occurring in the first matter, CV-09-4025677-S, which is Faile's appeal from the 2009 decision of the board. LeClerc stated that the town was moving "for nonsuit based upon the plaintiff's failure to have someone present at this morning's pretrial with authority to settle this matter." Grocki first explained to the court that he had filed a motion for a continuance approximately two weeks earlier due to outstanding discovery, which the court had denied. The court asked Grocki if he had been given the ultimate authority to settle this matter. Grocki responded that he had been given such authority. He further noted that Faile also was present at the settlement conference, and that Faile, certainly, had authority to settle his own cases. Grocki acknowledged that Faile wanted to do whatever Lange recommended, but that, ultimately, the parties were taking the advice of counsel, namely Grocki. Grocki explained to the court that the parties just "couldn't come to an agreement" regarding settlement. He acknowledged that his clients would not settle for a property tax fair market assessment of more than $9000. The court chastised Grocki for appearing at the settlement conference without having the "ultimate authority" as set forth in the pretrial notices. Grocki argued, however, that he did have the ultimate authority and that Faile, himself, also had been present at the settlement conference. The court asked Grocki why he had not notified the court that Lange would not be present before the parties convened the settlement conference. Grocki explained that Lange was hospitalized on the Sunday before the pretrial conference, and that they did not know how long he would remain in the hospital. When they realized that he would not be released in time for the settlement conference, it was too late to notify the court. The court then told Grocki that "the purpose of the language contained in the pretrial notice [was] to make certain that people with unfettered authority [were there] to negotiate a settlement, and further [that it was] required that the attorney, who ha[d] the closest relationship-or . who ha[d] ultimate authority to make a recommendation to the client must be [there]. Now that clearly is Mr. Lange. Is that correct?" Grocki replied that Lange was an attorney but that Lange, in fact, was not the attorney for these matters. The court continued to confront Grocki, asking whether Lange actually had the ultimate authority to settle all of these matters, rather than Grocki. Grocki continued to tell the court that he, Grocki, was the attorney for all of the plaintiffs, that Lange was not the attorney for these matters. Grocki further explained that he had the ultimate authority to settle all of these matters, but that the parties would not settle for more than a $9000 fair market assessment. Despite Grocki's protestations, the court stated that it believed Lange had the ultimate authority to settle Faile's appeal from the 2009 decision of the board, and, because Lange was not present, despite his hospitalization, "it was impossible . to make a good faith effort at a resolution of this case." The court then granted the town's motion for nonsuit in CV-09-4025677-S. The court then considered CV-10-6006946-S, Faile's appeal from the 2010 decision of the board. The court asked LeClerc if he wanted to make a motion. LeClerc responded that he was moving for a nonsuit "based upon [Faile's] failure to have someone present at this morning's pretrial with ultimate authority to settle this matter, and also for not having all documents that will be entered into evidence, specifically the document evidencing one of the three airplane hangars had been sold." Grocki asked the court if it wanted him to reiterate all of the arguments that he set forth for the previous matter. The court asked if they would be the same, and Grocki replied in the affirmative. The court then asked Grocki if he had brought the papers related to the sale of the hangar, and Grocki stated that he had electronic versions of everything with him, which he readily could access on his computer. The court chastised Grocki for not bringing "every piece of paper [he] intend[ed] to offer into evidence." The court then stated that it was granting the motion for nonsuit in CV-10-6006946-S on the same basis as it had granted the motion in CV-09-4025677-S, and in addition that paper copies of documents were not brought to the conference. Next, the court heard the town's motion for nonsuit in CV-09-4037511-S, Lange's appeal from 2009 decision of the board. See footnote 2 of this opinion. The court asked the parties if everything that was said previously also applied to this motion, and the parties replied in the affirmative. LeClerc then stated that the town was moving on the ground that the plaintiff had failed "to have someone present with ultimate authority to settle this matter at today's pretrial." The court asked Grocki if he had been authorized to settle "this case for a fair market value assessment of not more than $9000?" Grocki said yes, but there were other terms as well. He also reiterated that he had the ultimate authority to settle this matter, but that there was a bottom line, an amount Lange would not go above for a fair market assessed value. The court continued to ask Grocki if he believed he had the "ultimate authority" to settle these matters as set forth in the court's orders. Grocki continued to insist that he did have such authority and that the plaintiffs had complied with the orders of the court because he did not need "to check with anyone else in terms of . resolving the matter." Grocki argued that the fact that the parties had established a bottom line did not mean that he was without ultimate authority. The court responded that it found Grocki's insistence "incomprehensible." The court then granted the motion for nonsuit in CV-09-4037511-S. Finally, the court considered CV-10-6007416-S, the LLC's appeal from the 2010 decision of the board. The town moved for nonsuit in this case on the ground that the LLC failed "to have someone present with ultimate authority to settle this matter at [that day's] pretrial." The court asked Grocki to identify the principal of the LLC, and Grocki responded that it was Lange. It asked if Lange was present, and Grocki responded that he was not present. Grocki also stated that he would mirror his prior arguments that he had the ultimate authority to settle this matter. The court then asked Grocki once again if he believed he was in compliance with the court's orders in the pretrial notice. Grocki began that "based on [his] interpretation of the circumstances," but the court then interrupted Grocki and stated, in part, that Grocki was not "called upon to interpret the circumstances of a pretrial notice." Grocki asked to look at the order again. Shortly thereafter, the court said: "Let's go off the record." Upon resuming the on-the-record hearing, the court asked Grocki whether he had complied with the terms of the pretrial notice. Grocki then stated that, on the basis of a strict reading of the language in the court's orders, he did not enjoy ultimate authority as required by the notice. Grocki was also offered to amend his remarks regarding his authority in the CV-09-4037511-S case, which he did, to reflect the discussion on the record in the CV-10-6007416-S case. The court then granted the motion for a nonsuit in CV-10-6007416-S. The plaintiffs, twenty days following the court's judgments, filed motions to open the judgments of nonsuit. Grocki argued in the hearing on those motions that he did have the ultimate authority to settle the matters at the settlement conference. Grocki further argued that, to the extent that the court did not agree that he had such authority because it concluded that Lange had the ultimate authority, any failure to comply was due to Lange's hospitalization, which, he argued, established good cause for any alleged noncompliance. The court denied the motions. This joint appeal followed. Although we will consider the appeals for Faile and the LLC separately, we first discuss our standard of review, which the parties dispute. The plaintiffs contend that we should apply the more nuanced standard set forth in Millbrook Owners Assn., Inc. v. Hamilton Standard, 257 Conn. 1, 17-18, 776 A.2d 1115 (2001), while the town contends that we should apply the more deferential general abuse of discretion standard. After a thorough analysis of Millbrook and its related cases, although we are persuaded that Millbrook should apply in instances such as this, we conclude that, under either the more nuanced Millbrook standard or under the deferential general abuse of discretion standard, the court abused its discretion in rendering judgments of nonsuit in these matters. We start by setting forth a brief overview of Millbrook. In that case, the plaintiff failed to respond to the defendants' request that it disclose the opinions of two witnesses who were expected to testify at trial. Id., at 6, 776 A.2d 1115. The defendants thereafter moved to compel disclosure, and, in response, the trial court ordered the plaintiff to disclose those opinions. Id. Thereafter, the plaintiff decided that those witnesses would not testify at trial, but that they only would be used to help prepare for litigation. Id., at 6-7, 776 A.2d 1115 ; see also Practice Book (2001) § 13-4 (2) and 13-4 (4). After other procedural events, the defendants filed a motion to dismiss on the ground that the plaintiff had failed to disclose the witnesses pursuant to Practice Book (2001) § 13-4 (4), which concerns experts who will be called to testify at trial. Id., at 8, 776 A.2d 1115. The plaintiff objected on the ground that the witnesses would not be called at trial. Id. The court heard the motion to dismiss, and entered a conditional dismissal. Id., at 9, 776 A.2d 1115. The plaintiff attempted to comply with the conditions, but, apparently, did not do so successfully, and the defendants renewed their motion to dismiss, pursuant to Practice Book § 13-14, which the court, ultimately, granted. Id., at 9, 13-14, 776 A.2d 1115. On appeal, our Supreme Court opined that the trial court could have dismissed the plaintiff's case for failure to comply on two different bases. First, the trial court could have dismissed the case as a sanction pursuant to Practice Book § 13-14, which provides sanctions for, inter alia, failing to comply with discovery orders. Id., at 14, 776 A.2d 1115. Second, our Supreme Court opined that the trial court "could have seen that same failure [to comply with the court's order] as justifying the sanction of dismissal under the court's inherent sanctioning power." Id. Ultimately, however, our Supreme Court ruled that it made no difference to its analysis under which grant of authority the trial court had acted, because the propriety of the trial court's exercise of its authority under either or both grants of authority was considered under the same standard on appeal: "[A] court may, either under its inherent power to impose sanctions in order to compel observance of its rules and orders, or under the provisions of § 13-14, impose sanctions, including the sanction of dismissal. In this connection, we agree with the defendants that, in the present case, the court was acting under either-or both-grants of authority. It is not necessary, however, to determine which grant of authority it acted under, because the standards for gauging the propriety of its action are the same under either." Id., at 14-15, 776 A.2d 1115. The court then stated in relevant part: "Traditionally, we have reviewed the action of the trial court in imposing sanctions for failure to comply with its orders regarding discovery under a broad abuse of discretion standard.... The factors to be considered by the court include: (1) whether noncompliance was caused by inability, rather than wilfulness, bad faith or other fault; (2) whether and to what extent noncompliance caused prejudice to the other party, including the importance of the information sought to that party's case; and (3) which sanction would, under the circumstances of the case, be an appropriate judicial response to the noncomplying party's conduct.... As with any discretionary action of the trial court, appellate review requires every reasonable presumption in favor of the action, and the ultimate issue for us is whether the trial court could have reasonably concluded as it did.... In reviewing a claim that the court has abused this discretion, great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness.... The determinative question for an appellate court is not whether it would have imposed a similar sanction but whether the trial court could reasonably conclude as it did given the facts presented. Never will the case on appeal look as it does to a [trial court] . faced with the need to impose reasonable bounds and order on discovery.... "At the same time, however, we also have stated: [D]iscretion imports something more than leeway in decision-making.... It means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.... In addition, the court's discretion should be exercised mindful of the policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court.... The design of the rules of practice is both to facilitate business and to advance justice; they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice.... Rules are a means to justice, and not an end in themselves.... Our practice does not favor the termination of proceedings without a determination of the merits of the controversy where that can be brought about with due regard to necessary rules of procedure.... Therefore, although dismissal of an action is not an abuse of discretion where a party shows a deliberate, contumacious or unwarranted disregard for the court's authority . the court should be reluctant to employ the sanction of dismissal except as a last resort.... [T]he sanction of dismissal should be imposed only as a last resort, and where it would be the only reasonable remedy available to vindicate the legitimate interests of the other party and the court.... It is inherent in these principles that the articulation by the court of the conditions with which the party must comply be made with reasonable clarity. "Upon reflection, we conclude that the broad abuse of discretion standard that we have been employing for the imposition of sanctions for violation of discovery orders, and for our appellate review thereof, is inaccurate, because it masks several different questions that in fact are involved in the question of when a court is justified in imposing such sanctions. We therefore now take the opportunity to clarify that standard by articulating those specific questions. In order for a trial court's order of sanctions for violation of a discovery order to withstand scrutiny, three requirements must be met." (Citations omitted; internal quotation marks omitted.) Id., at 15-17, 776 A.2d 1115. Our Supreme Court then proceeded to set forth the three factors that must be employed when determining whether the trial court properly exercised its discretion in ordering sanctions for the violation of a discovery order under its inherent authority and/or pursuant to Practice Book § 13-14. "First, the order to be complied with must be reasonably clear. In this connection, however, we also state that even an order that does not meet this standard may form the basis of a sanction if the record establishes that, notwithstanding the lack of such clarity, the party sanctioned in fact understood the trial court's intended meaning. This requirement poses a legal question that we will review de novo. "Second, the record must establish that the order was in fact violated. This requirement poses a question of fact that we will review using a clearly erroneous standard of review. "Third, the sanction imposed must be proportional to the violation. This requirement poses a question of the discretion of the trial court that we will review for abuse of that discretion." Id., at 17-18, 776 A.2d 1115. In the present case, the plaintiffs argue that the Millbrook standard should be applied to our review of the sanctions of nonsuit in this case. The town argues that Millbrook applies only to review of discovery sanctions and the failure to file a certificate of closed pleadings, and that the traditional abuse of discretion standard applies in this case. We conclude that, although Millbrook sets forth a standard that appears different in form and is more nuanced than the traditional abuse of discretion standard; see Yeager v. Alvarez, 302 Conn. 772, 784, 31 A.3d 794 (2011) ( Millbrook provides "more nuanced analysis" than traditional abuse of discretion standard, which "masks several different questions that in fact are involved in the question of when a court is justified in imposing . sanctions" [internal quotation marks omitted] ); both standards are quite similar. See also Ridgaway v. Mount Vernon Fire Ins. Co., 165 Conn.App. 737, 755-56, 140 A.3d 321 (applying Millbrook test to determine whether trial court abused discretion in rendering judgment of nonsuit for noncompliance with court order not involving discovery), cert. granted, 322 Conn. 908, 140 A.3d 978 (2016) ; see generally, D'Ascanio v. Toyota Industries Corp., 309 Conn. 663, 683-84, 72 A.3d 1019 (2013) (after trial court effectively rendered judgment of dismissal as sanction for expert witness' action, Supreme Court reversed judgment and, although not specifically employing Millbrook test, concluded that trial court had "abundance of options at its disposal" other than dismissal-thereby assessing proportionality of court's sanction to actual violation). Even if we were to conclude, however, that the proportionality prong of the Millbrook factors substantively is different from the deference afforded to the trial court's decision by application of the traditional abuse of discretion standard; see generally Anderson v. Commissioner of Correction, 158 Conn.App. 585, 595 n.9, 119 A.3d 1237 (holding that court abused its discretion, but declining to apply "narrow" Millbrook standard to habeas court's imposition of sanction of dismissal with prejudice), cert. denied, 319 Conn. 927, 125 A.3d 202 (2015) ; we, nevertheless, would conclude that the first two factors of the Millbrook test are necessary to any case in which a reviewing court is called upon to assess whether the trial court abused its discretion in rendering a judgment of nonsuit for violations of the court's order. As to the necessary, although generally unstated, first factor, our long-standing precedent is well defined: "An order of the court must be sufficiently clear and specific to allow a party to determine with reasonable certainty what it is required to do. See Dept. of Health Services v. Commission on Human Rights & Opportunities, 198 Conn. 479, 488-89, 503 A.2d 1151 (1986) ; Adams v. Vaill, 158 Conn. 478, 485-86, 262 A.2d 169 (1969) ; Castonguay v. Plourde, 46 Conn.App. 251, 268, 699 A.2d 226, cert. denied, 243 Conn. 931, 701 A.2d 660 (1997) ; Contegni v. Payne, 18 Conn.App. 47, 59, 557 A.2d 122, cert. denied, 211 Conn. 806, 559 A.2d 1140 (1989) ; Dingwell v. Litchfield, 4 Conn.App. 621, 625, 496 A.2d 213 (1985)." Millbrook Owners Assn., Inc. v. Hamilton Standard, supra, 257 Conn. at 38, 776 A.2d 1115 (Vertefeuille, J., concurring in part and dissenting in part). "The construction of an order is a question of law over which we exercise plenary review." Gianetti v. Gerardi, 122 Conn.App. 126, 130, 998 A.2d 807 (2010). "As a general rule, [orders and] judgments are to be construed in the same fashion as other written instruments.... The determinative factor is the intention of the court as gathered from all parts of the [order or] judgment.... The interpretation of [an order or] judgment may involve the circumstances surrounding [its] making.... Effect must be given to that which is clearly implied as well as to that which is expressed.... The [order or] judgment should admit of a consistent construction as a whole." (Internal quotation marks omitted.) State v. Denya, 294 Conn. 516, 529, 986 A.2d 260 (2010). As to the necessary, although generally unstated, second factor, our law is equally well-defined: Pursuant to Practice Book § 17-19, the trial court may enter a nonsuit or default "[i]f a party fails to comply with an order of a judicial authority or a citation to appear or fails without proper excuse to appear in person or by counsel for trial ." (Emphasis added.) Under the plain and unambiguous language of the rule, before a nonsuit or default can be entered for a party's failure to comply with an order of the court, there necessarily must be a finding of a failure to comply made by the trial court. See Housing Authority v. Weitz, 163 Conn.App. 778, 782-83, 134 A.3d 749 (2016) (reversing court's default against defendant who did not appear personally for trial, but whose attorney did appear, because civil parties are "[permitted] to appear through counsel"; therefore, court's finding that defendant failed to appear and entry of default was erroneous). If an appellate court is called upon to review the findings of the trial court "we apply our clearly erroneous standard, which is the well settled standard for reviewing a trial court's factual findings.... 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.) Richards v. Richards, 78 Conn.App. 734, 742, 829 A.2d 60, cert. denied, 266 Conn. 922, 835 A.2d 473 (2003). As to the third prong of the Millbrook test, namely, whether the sanction imposed is proportional to the violation; Millbrook Owners Assn., Inc. v. Hamilton Standard, supra, 257 Conn. at 18, 776 A.2d 1115 ; the parties disagree on whether a proportionality analysis should be employed when reviewing the propriety of a trial court's nonsuit due to a nondiscovery related violation. The plaintiffs argue that Millbrook should be applied and that the nonsuits in this case were not proportional to the violation. The town argues that the proportionality prong should not be employed and that we must apply the traditional broad abuse of discretion standard. In this particular case, we conclude that even if we apply the traditionally more deferential abuse of discretion standard, the trial court abused its discretion in rendering judgments of nonsuit in these matters. "In reviewing a claim that [the] discretion [of the trial court] has been abused, the unquestioned rule is that great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness.... [T]he ultimate issue is whether the court could reasonably conclude as it did." (Internal quotation marks omitted.) Allstate Ins. Co. v. Mottolese, 261 Conn. 521, 529, 803 A.2d 311 (2002) ; see also Herrick v. Monkey Farm Cafe, LLC, 163 Conn.App. 45, 50, 134 A.3d 643 (2016). We now consider the merits of the plaintiffs' claims. I On appeal, Faile claims that the court improperly rendered judgments of nonsuit against him. Specifically, Faile argues that, although he heeded the advice of counsel, namely, Grocki, he was present himself at the settlement conference. Indeed, there was no dispute that Faile owned his hangars. Therefore, he contends, it is indisputable that there was a person with "ultimate authority" present. He further argues that he has a "right to determine whether and upon what terms to settle his cases." Accordingly, he argues, it is indisputable that he did not violate the court's order by failing to have someone with ultimate authority present at the settlement conference. As to the court's ruling in CV-10-6006946-S that Grocki violated the court's order by failing to have every physical piece of paper that he would offer into evidence if the matter were tried, Faile argues that "[t]here is no substantive difference between bringing an electronic copy of each piece of paper versus bringing the printed-out piece of paper. Thus, [Grocki] complied with the order." Therefore, Faile argues, the court's findings that he and/or Grocki were in violation of the court's orders were clearly erroneous. Accordingly, he argues, the court erred in rendering judgments of nonsuit. Furthermore, Faile argues, even if "this somehow constitutes a violation of the order, it [did] not warrant the harsh, last resort sanction of a judgment of nonsuit" in CV-10-6006946-S. Although the town does not dispute that Faile was present at the pretrial conference, it argues that Faile essentially had delegated his authority to Lange, who was not present. Furthermore, the town argues Grocki did not have ultimate authority to settle these matters because he was not authorized to settle unless the fair market assessment value was $9000 or less. Accordingly, it contends that the court properly rendered a judgment of nonsuit. We agree with Faile that the court's finding of two violations of its orders was clearly erroneous, and that the court, therefore, abused its discretion in rendering judgments of nonsuit against him. The primary basis for the court's entry of nonsuits against Faile was the court's finding that Faile was in violation of its order by failing to have a person with "ultimate authority" present at the pretrial conference. The fact of the matter is that not only was Faile's counsel present at that pretrial conference, Faile, himself, was present at that conference. We agree with Faile's assertion that simply because a party has a bottom line and stands firm in his or her position does not mean that the party does not have ultimate authority to settle the case. No party can be mandated to settle a case. See Allstate Ins. Co. v. Mottolese, supra, 261 Conn. at 531, 803 A.2d 311. Indeed, an aggrieved taxpayer who appeals from a decision of a board of assessment appeals ultimately has a right to a trial de novo. See Chestnut Point Realty, LLC v. East Windsor, 324 Conn. 528, 533, 153 A.3d 636 (2017) (taxpayer's right to appeal municipal property tax assessment, like other administrative appeals, derives from statute); Breezy Knoll Assn., Inc. v. Morris, 286 Conn. 766, 776, 946 A.2d 215 (2008) ("[i]f a taxpayer is found to be aggrieved by the decision of the board of [assessment appeals], the court tries the matter de novo and the ultimate question is the ascertainment of the true and actual value of the applicant's property" [internal quotation marks omitted] ). "Public policy favors and encourages the voluntary settlement of civil suits.... We view with disfavor, however, all pressure tactics, whether employed directly or indirectly, to coerce settlement by litigants, their counsel and their insurers. The failure to concur with what a trial court may consider an appropriate settlement should not result in the imposition of any retributive sanctions upon a litigant, his or her counsel or his or her insurer. As our sister state, New York, has recognized, [t]he function of courts is to provide litigants with an opportunity to air their differences at an impartial trial according to law.... [The court should not be able] to exert undue pressure on litigants to oblige them to settle their controversies without their day in court." (Citation omitted; internal quotation marks omitted.) Allstate Ins. Co. v. Mottolese, supra, 261 Conn. at 531, 803 A.2d 311. In Mottolese, a case wherein the insurer actually refused to participate meaningfully in the settlement conference, our Supreme Court further explained: "Although we sympathize with the trial court's concern that merely attending a pretrial conference while refusing, at the same time, to participate meaningfully in the negotiation or settlement process is not within the spirit of the settlement process, the plaintiff's refusal, on the basis of a validly exercised right to a trial de novo . does not fall within the parameters of sanctionable behavior under [Practice Book] § 14-13. To conclude otherwise would undermine the insured's... right to a trial...." (Emphasis added.) Id., at 532, 803 A.2d 311. After reviewing the record in this case, we conclude that the court's finding that Faile violated its order by not having someone with ultimate authority to settle the matter present at the pretrial conference was clearly erroneous. Faile, himself, was present for the conference, and, as the owner of his hangars, his willingness or unwillingness to settle the matter for some amount that the court may have thought reasonable did not violate the court's order. To be sure, it was his right to settle or not to settle the matters. Furthermore, his attorney also was present. Faile had every right to refuse to settle. See id., at 531-32, 803 A.2d 311. His decision to exercise that right is not a violation of the court's order. As to the court's additional basis for finding a violation of its order, namely, that Grocki failed to bring to the pretrial conference "every physical piece of paper" he would offer into evidence in the event of a trial, we also conclude that the court's finding was clearly erroneous. The order of the court was that "counsel for all parties must bring every piece of paper which will be offered in evidence." Grocki told the court that he had all available evidence on his laptop computer, which was with him at court. The court's order did not state that the parties needed every physical piece of paper. There was no mention in its order that the court expected actual physical pieces of paper. We conclude that by having electronic copies of the documents available, Grocki and Faile complied with the court's order, and the court's finding that this was a violation of its order was clearly erroneous. Because Faile had ultimate authority to settle his tax appeal, or not settle his tax appeal, as the case may be, and his attorney had with him at the pretrial conference the documentary evidence available in electronic form, we conclude that the court's findings that its orders were violated was clearly erroneous. Accordingly, the court abused its discretion when it rendered judgments of nonsuit against Faile. II The LLC claims that the court abused its discretion in rendering judgments of nonsuit against it. The LLC argues that its attorney, Grocki, did have ultimate authority. Therefore, it argues, the court's finding to the contrary was clearly erroneous. In the event that we agree with the trial court that Grocki did not have ultimate authority, the LLC argues that, under either the proportionality prong of Millbrook or under the broad general abuse of discretion standard, the court, nevertheless, abused its discretion in rendering judgments of nonsuit. In the alternative, the LLC also argues that Lange was prevented by illness and hospitalization from attending the conference, which establishes the good cause required to open the judgments of nonsuit, and, therefore, the court improperly denied its motion to open. The town argues that Grocki did not have ultimate authority to settle these matters because he was not authorized to settle unless the fair market assessment value was $9000 or less. Accordingly, it contends that the court properly rendered judgments of nonsuit. The town also argues that, although we should not apply the proportionality prong of Millbrook, under either that prong or under the broad traditional abuse of discretion standard, the court properly rendered judgments of nonsuit. We conclude that the LLC has failed to establish clear error in the court's finding that Grocki did not have ultimate authority to settle the LLC's tax appeals. We further conclude, however, that even if we apply the broader traditional abuse of discretion standard, the court improperly rendered judgments of nonsuit against the LLC in these matters. The events as set forth in the transcripts of the hearing, and presented in part I of this option, inform our review. During the hearings, Grocki reiterated consistently that he had the ultimate authority to settle these matters, but that the parties and he, as counsel, agreed that they would not settle for an assessment of more than $9000. When the court considered the motion for nonsuit in CV-10-6007416-S, it went off the record. Upon resuming the hearing, Grocki "conceded" that, under a strict reading of the court's order, he did not have ultimate authority to settle the matter. Specifically, the following colloquy occurred during the hearing in CV-10-6007416-S: "[Attorney LeClerc]: The town would move for a nonsuit based upon the [LLC's] failure to have someone present with ultimate authority to settle this matter at today's pretrial. "The Court: All right. Mr. Grocki, is there a principal-or who is the principal in- "[Attorney Grocki]: In the LLC, Your Honor? . That's Paul Lange. "The Court: Okay. Is he here? "[Attorney Grocki]: He is not, Your Honor. "The Court: Okay. And you have some authority from him? "[Attorney Grocki]: Correct. "The Court: And that authority is limited to what? "[Attorney Grocki]: Nine thousand dollars. "The Court: And you can't negotiate a settlement at a figure above that. Is that correct? "[Attorney Grocki]: Correct, Your Honor. Unless-yes. Correct.... "The Court: Do you . contend that you have complied with the pretrial notice? "[Attorney Grocki]: Your Honor, for the reasons we just discuss[ed] . I mirror . what was- "The Court: I'm sorry. I want to be very clear on what you're saying. "[Attorney Grocki]: Yeah. Well, Your Honor, I guess, and I think, based on my interpretation of the circumstances, again, I- "The Court: Excuse me. "[Attorney Grocki]: -I think- "The Court: I don't know what you're talking about. You're interpretation of the circumstances. You're not called upon to interpret the circumstances of a pretrial notice. You are merely being asked a very direct yes or no question.... Have you complied with the terms of the pretrial notice? "[Attorney Grocki]: And, Your Honor, I'm sorry. Do you mind if I take the paper from you one more time? "The Court: Not at all. "[Attorney Grocki]: Is it okay, just to be certain? "The Court: Let's go off the record. "[Attorney Grocki]: Okay. (Off record.) "The Court: Let me have those papers. "[Attorney Grocki]: Sure. "The Court: Mr. Grocki, you've now had an opportunity to read and reread the terms of the pretrial notice. Now, in light of the fact that the pretrial notice states someone with authority to negotiate a settlement at a preestablished figure does not have ultimate authority, and in spite of the fact that someone with ultimate authority is required to be here on behalf of a corporation or other type of legal entity, are you representing to me that on the face of this pretrial notice, you have complied with its terms? "[Attorney Grocki]: Your Honor, after-I, I took another look at it, after taking it from Your Honor, and it looks like, based on the strict language of the, of the pretrial order, that it has not been complied with. "The Court: Okay. Now, in light of that, do you want to go back to the argument on Mr. LeClerc's motion in the previous case, that is . Paul Lange v. Town of Stratford... [CV-09-4037511-S].... In light of what [you have] just said, do you want to amend your remarks on the argument-your remarks in the argument on the motion for nonsuit made by Mr. LeClerc in the case I have just cited? "[Attorney Grocki]: Yes, Your Honor. I'd like it to reflect what we just discussed in . the final docket number with the LLC. "The Court: That is that you did not-you do not enjoy ultimate authority as required by the pretrial notice? "[Attorney Grocki]: Yes, Your Honor, based on the strict language- "The Court: And, therefore, you have failed to comply with the pretrial notice? "[Attorney Grocki]: Correct, Your Honor. "The Court: All right. Well, on that ground, the motion for nonsuit is granted." Although we are somewhat troubled by the colloquy throughout the hearings, leading to this "concession," it, nonetheless, was determined by the trial court to be a concession that Grocki did not have ultimate authority to settle, and thus failed to comply with the pretrial notice. Accordingly, the LLC has not met its burden of establishing clear error in this finding. This, however, does not end our inquiry. "In reviewing a claim that the court has abused [its] discretion, great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness ." (Internal quotation marks omitted.) Herrick v. Monkey Farm Cafe, LLC, supra, 163 Conn.App. at 50, 134 A.3d 643. "[D]iscretion imports something more than leeway in decision-making.... It means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.... State v. Martin, 201 Conn. 74, 88, 513 A.2d 116 (1986).... Gateway Co. v. DiNoia, 232 Conn. 223, 239, 654 A.2d 342 (1995). In addition, the court's discretion should be exercised mindful of the policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court. Snow v. Calise, 174 Conn. 567, 574, 392 A.2d 440 (1978). The design of the rules of practice is both to facilitate business and to advance justice; they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice.... Rules are a means to justice, and not an end in themselves.... In re Dodson, 214 Conn. 344, 363, 572 A.2d 328, cert. denied, 498 U.S. 896, 111 S.Ct. 247, 112 L.Ed.2d 205 1990). Our practice does not favor the termination of proceedings without a determination of the merits of the controversy where that can be brought about with due regard to necessary rules of procedure. Johnson v. Zoning Board of Appeals, 166 Conn. 102, 111, 347 A.2d 53 (1974).... Coppola v. Coppola, 243 Conn. 657, 665-66, 707 A.2d 281 (1998). Therefore, although dismissal of an action is not an abuse of discretion where a party shows a deliberate, contumacious or unwarranted disregard for the court's authority; Fox v. First Bank, 198 Conn. 34, 39, 501 A.2d 747 (1985) ; see also Pavlinko v. Yale-New Haven Hospital, [192 Conn. 138, 145, 470 A.2d 246 (1984) ] (dismissal proper where party's disobedience intentional, sufficient need for information sought is shown, and disobedient party not inclined to change position); the court should be reluctant to employ the sanction of dismissal except as a last resort. Fox v. First Bank, supra, at 39, 501 A.2d 747. [T]he sanction of dismissal should be imposed only as a last resort, and where it would be the only reasonable remedy available to vindicate the legitimate interests of the other party and the court. Pietraroia v. Northeast Utilities, 254 Conn. 60, 75, 756 A.2d 845 (2000)." (Internal quotation marks omitted.) Millbrook Owners Assn., Inc. v. Hamilton Standard, supra, 257 Conn. at 16-17, 776 A.2d 1115 ; see also Herrick v. Monkey Farm Cafe, LLC, supra, at 50-51, 134 A.3d 643. Here, Lange, the principal of the LLC and the person whom the trial court found was vested with the ultimate authority to settle the LLC's tax appeals, was not in attendance at the pretrial conference because he was hospitalized. Grocki had been given, if not ultimate authority, at least limited authority to settle the LLC's tax appeals. The court made no findings of a wilful disregard of its orders or of contemptuous behavior on the part of either Grocki or Lange. Although the court appeared frustrated that Lange was not present, no one disputed that he was hospitalized and unable to attend the conference. A dismissal or a nonsuit as a sanction for the failure of Lange to attend when he was ill and in the hospital does not serve justice or in any way "vindicate the legitimate interests of the other party and the court." (Internal quotation marks omitted.) Millbrook Owners Assn., Inc. v. Hamilton Standard, supra, 257 Conn. at 17, 776 A.2d 1115. Under the facts of this case, we conclude that the court abused its broad discretion in rendering judgments of nonsuit against the LLC. The judgments are reversed and the matters are remanded for further proceedings. In this opinion the other judges concurred. Because we agree that the judgments of nonsuit were inappropriate in each of these matters, we need not consider whether the trial court properly denied the motions to open the judgments of nonsuit. Although hangar A-3 was owned by the LLC for purposes of both the 2009 and 2010 taxes, the town billed Lange in his individual capacity for the taxes owed for 2009. The importance of this matter, however, is not an issue in this appeal. For convenience, we refer to the tax appeals involving hangar A-3 as the LLC's appeal except where relevant. In CV-09-4025677-S, Faile appealed from the 2009 decision of the board; in CV-10-6006946-S, Faile appealed from the 2010 decision of the board. In CV-09-4037511-S, Lange appealed from the 2009 decision of the board. See footnote 2 of this opinion. In CV-10-6007416-S, the LLC appealed from the 2010 decision of the board. All of these cases were consolidated for one pretrial at the trial court. We note that Lange was not a party to either of Faile's appeals. Faile does not challenge the clarity of the court's relevant orders. The town does not address the court's ruling that Grocki also violated its order by not bringing in every physical piece of paper that he would offer into evidence. We note that the plaintiffs had filed a motion for continuance of the pretrial conference on the basis that discovery still had not been completed, which motion the court had denied. On appeal, the LLC does not contest the clarity of the court's orders. See footnote 1 of this opinion.

12491342

STATE of Connecticut v. Matthew Allen HALL-DAVIS

State v. Hall-Davis

2017-10-17

AC 39619

222

242

172 A.3d 222

172

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

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

Fastcase

STATE of Connecticut v. Matthew Allen HALL-DAVIS

STATE of Connecticut v. Matthew Allen HALL-DAVIS AC 39619 Appellate Court of Connecticut. Argued April 27, 2017 Officially released October 17, 2017 Pamela S. Nagy, assistant public defender, for the appellant (defendant). Nancy L. Chupak, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Donna Mambrino, senior assistant state's attorney, for the appellee (state). Sheldon, Prescott and Bishop, Js.

10122

60482

BISHOP, J. The defendant, Matthew Allen Hall-Davis, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a (a), conspiracy to commit murder in violation of General Statutes § 53a-48 (a) and 53a-54a (a), and criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (1). On appeal, he argues that the trial court (1) erred by refusing to give the jury an instruction on defense of others, (2) improperly restricted his closing argument, and (3) gave the jury a faulty and misleading instruction on conspiracy. We affirm the judgment of the trial court. The jury reasonably could have found the following facts. The charges against the defendant stemmed from a shooting that occurred at approximately 1 a.m. on April 29, 2013, on Magnolia Street in Hartford in which the victim, Shamari Jenkins, was killed. The defendant and the victim's boyfriend, Carlton Bryan, were "[b]est friends" and had known each other for about ten years. The defendant had been living with Bryan in April, 2013. The victim was nineteen weeks pregnant with Bryan's baby at the time of her death. Bryan then also had another girlfriend, who was described as his "preferred girlfriend," with whom he had a child. In January, 2013, Bryan asked the victim to have an abortion, to which she initially agreed. She later changed her mind, however, which upset Bryan because her pregnancy was interfering with his relationship with his other girlfriend. At the end of March, 2013, or in early April, 2013, Bryan mentioned to the defendant that he "wanted to do something about" the victim, but the defendant thought that Bryan was "just acting stupid." On the morning of April 28, 2013, the defendant and Bryan went to the victim's house, where she made breakfast and they stayed for a barbeque. The defendant and Bryan had been drinking alcohol all morning, and they continued to do so at the barbeque. At some point during the day, the defendant heard Bryan and the victim arguing. Bryan was acting "over the top" and "belligerent." The defendant and Bryan left and went to Bryan's house where they continued to drink alcohol. The victim later came to Bryan's house, and she and Bryan left in her car and parked outside of 149-151 Magnolia Street, near the intersection with Mather Street. The defendant also left the house and drove Bryan's car to Magnolia Street, where his cousin and brother lived, and happened upon Bryan and the victim. Here, the defendant pulled in front of the victim's car, and Bryan got in. While the defendant and Bryan were sitting in Bryan's car, Bryan told the defendant that he had "had enough of [the victim]." Bryan looked at the defendant with a "dead stare" and pulled out a .44 caliber revolver. He told the defendant that the victim "[had to] go before a certain month" and asked the defendant to "do this for" him. Bryan gave the defendant a ski mask, gloves, and the gun, and told him to park the car on Enfield Street, one block from Magnolia Street, put on the mask and gloves, and come through "the cut," a pedestrian passageway between Enfield Street and Magnolia Street, and "empty the revolver" in the driver's side door of the victim's car. The defendant drove to Enfield Street, where he parked the car and "sat there for a minute" thinking of "ways . [to] brush [Bryan] off or get out of it." "[A]fter a while," he got out of the car and sat by a tree near the cut for about five minutes. Then he sat under a window thinking about ways to get out of killing the victim. He left the gun, mask, and gloves by the tree, and drove Bryan's car back to Magnolia Street, where he told Bryan that he saw someone outside and could not go through with the plan. After Bryan determined that there was no one else in the vicinity, the defendant drove back to Enfield Street and sat in the car, after which he returned to the tree to retrieve the gun, mask, and gloves, and "just sat there" until he decided to leave it all there again, got back into the car and drove back to Magnolia Street for a second time. The defendant told Bryan that he could not go through with the plan, but Bryan was "bugging" and "dead serious at that point." The defendant then drove back to Enfield Street where he once again picked up the gun, mask, and gloves, but still could not go through with the plan. He drove back to Magnolia Street for a third time, where Bryan was "furious" with him. He and Bryan were in the car for roughly a minute and a half when Bryan pulled out of his pocket a nine millimeter gun and told the defendant, "[i]t's you or her," and then got out of the car and returned to the victim's car. The victim remained in her car on Magnolia Street during these encounters. The defendant sat in Bryan's car "for a minute" on Magnolia Street and then decided that he would change the plan and shoot Bryan instead of the victim. He claimed that he then drove back to Enfield Street and "sat there again for a little bit" before returning to the tree to retrieve the gun, mask, and gloves. He then decided to change the plan further and, instead of going to Magnolia Street through the cut, he would go around the buildings and approach the victim's car from behind, thinking that Bryan would not expect that. The defendant stood behind a car that was parked on Magnolia Street and was "trying to get up the nerve" to shoot Bryan, and then "jumped up and . started . to jog around the car" when he heard Bryan yell to the victim, "[p]ull off. Pull off. Pull off." At the same time that Bryan leaned over to grab the steering wheel, the defendant shot the gun into the passenger side of the back window as the car was pulling away from the curb. The bullet went through the passenger side of the rear window of the car, through the right side of the driver's seat, into the back of the victim's right shoulder and lodged in her heart. As this occurred, the car accelerated through the intersection of Magnolia Street and Mather Street, crashing into stairs in front of 137 Magnolia Street. The defendant fled back to Enfield Street and drove off in Bryan's car. Emergency services personnel arrived, and the victim was taken to a hospital where she was pronounced dead. Bryan initially told Hartford police on the scene that an unidentified person had shot into the car as the victim was driving away. Later at the hospital, Bryan told Hartford police Detective Reginald Early that an unidentified person had come up to the car and attempted to rob them, and shot once into the car while the victim was trying to drive away. He later changed his story again and identified the person who attempted to rob them as a man with a "street name" of "Low," someone he knew from prison. Early thereafter investigated "Low" and determined that he had an alibi for the time of the shooting. On April 29, 2013, the defendant went to the Hartford police station to speak with Early about the victim's death because Bryan had told the defendant that Early wanted to speak with him, which was untrue. The defendant told Early that Bryan had relayed to him that the victim was shot during an attempted robbery, but that Bryan could not identify the shooter. The defendant was not a suspect at that point. On May 23, 2013, the defendant was arrested in connection with a robbery that took place at J B Expo in Manchester on May 11, 2013, after Early called the Manchester police and identified the defendant as the person with a gun in surveillance footage. On May 25, 2013, the defendant's friend, Kingsley Minto, was also arrested for the robbery and told Manchester police in confessing to his involvement that the defendant had hidden the gun used in the robbery in Henry Park in Vernon, wrapped in a white shopping bag. Minto also testified that the defendant threw a shell casing out of the car window on the way from the robbery and said it was the shell casing from the victim's shooting. Subsequently, Manchester police recovered the gun, a Ruger .44 caliber revolver, in Henry Park. On May 29, 2013, Early and another Hartford police detective interviewed the defendant at the Hartford Correctional Center, where he confessed to killing the victim, at Bryan's request, with the gun that was found in Henry Park. The defendant told Early that Bryan felt like the victim was "ruining his life" by having their baby and had asked the defendant to kill her for him. The defendant told Early that he could not go through with the plan and intended to shoot Bryan instead of the victim. The defendant was charged with the victim's murder. By information dated January 8, 2015, the state charged the defendant with murder in violation of § 53a-54a (a), conspiracy to commit murder in violation of § 53a-48 (a) and 53a-54 (a), and criminal possession of a firearm in violation of § 53a-217 (a) (1). The five day evidentiary portion of the jury trial, at which the defendant testified, took place between January 30 and February 9, 2015. On February 10, 2015, the court, Bentivegna, J., held a charge conference with counsel to discuss proposed jury instructions. At the conference, the defendant asked that the jury be instructed on defense of others and renunciation of criminal purpose, a request that the court denied. On February 11, 2015, the jury returned a guilty verdict on all three counts. The defendant was sentenced on May 1, 2015, to fifty years incarceration on the charge of murder; twenty years incarceration on the charge of conspiracy to commit murder, to run consecutively to the first sentence; and five years incarceration on the charge of criminal possession of a firearm, to run concurrently with the first two sentences, for a total effective sentence of seventy years incarceration. This appeal followed. Additional facts will be set forth as necessary. I The defendant claims first that the court erred in refusing to give the jury an instruction on defense of others. Specifically, he asserts that he provided ample evidence at trial that he was trying to protect the victim from Bryan, and, therefore, his due process right to present a defense was violated by the court's refusal to instruct the jury on defense of others. We are not persuaded. The following additional facts are relevant to our resolution of this claim. The defendant testified that when Bryan asked him, on April 28, 2013, to kill the victim, he thought Bryan was "tripping" and that he was just "drunk [and] high," but also that Bryan seemed "clearheaded" and was "describing things like he knew what he wanted." He testified that Bryan was "mad" and that he had "never seen that side of" Bryan before. When he told Bryan that he could not go through with the plan, Bryan was "bugging" and "dead serious ." The defendant testified that after Bryan took out the nine millimeter gun and threatened him, "[a]t that point, I pretty much knew, either-I'm not going to say he was going to do something, but something was going to happen.... I pretty much knew he was set on killing [the victim]." He further testified that at that point he "just knew . he was going to kill me or [the victim] or, if not, both of us . I knew too much.... I'm not going to say he was going to do it himself, but he was either going to kill her or he was going to kill me." The defendant testified that he "didn't see any options" because this was "a duel to the death with a gun in [his] face" and that he "wasn't thinking right." He further testified that Bryan "threatened [his] life," and he felt like he had "nowhere to go after that" because he lived with Bryan and Bryan knew all of his friends. The defendant said, "I just-my mind was just: shoot [Bryan]." When asked on direct examination why he did not go home or go to his girlfriend's house, the defendant testified that he "could've probably left," but then, Bryan "would've been looking for me after that.... I could only take him for what he said; he was going to kill me." He further testified, "if not [the victim], it was going to be me." Additionally, he testified that in the moment, he "didn't want nothing to happen to" the victim, but also that he was not trying "to protect her a hundred percent" because he "wanted to help her" but also "wanted to protect [himself]." After the victim's funeral, the defendant asked Minto if he knew who shot the victim, to which Minto responded that he thought it was Bryan. The defendant then confessed to Minto and told him that it was Bryan's idea, but that he changed the plan, however, and accidentally shot the victim as he was trying to shoot Bryan. Minto testified that the defendant did not tell him that Bryan pulled out a gun, and that, as far as Minto knew, the defendant was the only person there with a gun that night. Minto testified further that he knew Bryan to be "almost perpetually" and "constantly" in possession of a firearm, but "[n]ot always." Everett Walker, the defendant's "distant cousin," also testified that he had seen Bryan with the .44 caliber gun on previous occasions and that Bryan also "might've had something smaller ." When police arrived on the scene on April 29, 2013, Bryan was patted down and there was no firearm recovered. Additionally, the defendant's written statement did not include any claim that Bryan had a gun that night or that Bryan threatened to kill him if he did not shoot the victim. The defendant testified that he did tell the police that Bryan threatened him with a gun that night. Walker testified that he saw Bryan on Enfield Street on the night of April 28, 2013, and that Bryan was "mad about [the victim] being pregnant and he didn't want it . [H]e [was] talking about [how] he wanted to kill her ." He further testified that Bryan asked him to tell the police that he saw someone running away toward Enfield Street after the shooting. Walker testified that, while he was at his house on Magnolia Street, he heard "a few shots." He testified on direct examination that he heard "two shots," but testified on cross-examination that he believed it was one gunshot, although he was "not really sure," but thinks it was one shot "because [he] only heard that one distinct sound, but like a deep boom" and that's "all [he] heard." He said that after he heard the shot or shots, he got low to the ground and then looked out of the window and saw Bryan steering the car, crash into steps down the street, and jump out. He did not see anyone running away from the scene and never told the police that he did. In addition to Walker's testimony that he told the police that he heard two gunshots, the state presented evidence from Hartford police Detective Candace Hendrix, who testified about a "defect, some type of damage," on the passenger side of the victim's car. She testified that there was a hole in the A-pillar of the passenger side, which is the part of the car between the window and the windshield. Hendrix labeled the defect "BH-2," or "bullet hole 2," though she testified that she did not, in fact, know whether it was a bullet hole. She testified that there were no plastic fragments below the defect, and that she took off the dashboard but did not find a bullet or any fragments inside that would have indicated that it was caused by a bullet. She testified further that even if the defect was created by a bullet, it could not have been created by the fatal bullet that was fired by the defendant, and she could not say either when or how the defect was made. At the charge conference, the defendant requested that the jury be instructed on defense of others. In support of this argument, defense counsel highlighted the following portions of the defendant's testimony: Bryan was "drunk, belligerent and over the top" on April 28, 2013, and had gotten into an argument with the victim earlier in the day; Bryan was in possession of a second, smaller gun other than the .44 caliber that he had given to the defendant; Bryan told the defendant that the victim was ruining his life; Bryan was acting that day in a manner that the defendant had never seen before; and Bryan was "bugging out and furious" when the defendant told him that he could not go through with killing the victim, pulling out the smaller gun and saying "it's either you or it's her ." Defense counsel further highlighted, as support for a defense of others instruction, Minto's testimony that Bryan previously had discussed wanting to kill the victim and that when Minto heard that the victim was shot, he assumed that Bryan had shot her. Defense counsel also highlighted Walker's testimony that Bryan asked him to be a lookout and to tell the police that he saw someone running away from the car after he heard gunshots, and Minto's testimony that he had seen Bryan with a small gun on previous occasions. Defense counsel argued that on the basis of the testimony of the defendant, Minto, and Walker, there was sufficient evidence that "something was going to happen that night" and that it would happen imminently, which would "raise reasonable doubt in the mind of a rational juror ." The state opposed the defendant's request and argued that the evidence was "lacking in objective reasonability of imminent danger ." The court denied the defendant's request for three reasons. First, the court opined that "public policy principles weigh against giving [a defense of others] instruction in this particular case." Second, the court opined that there was "a lack of evidence to support the defendant's contention that at the time he fired the firearm, it was objectively reasonable for him to believe that it was necessary to do so in order to defend [the victim]." The court further highlighted the fact that the evidence reflected that Bryan's plan "was to make it appear that someone else had murdered [the victim], not that he had murdered" her, that there was no evidence of a nine millimeter handgun that Bryan allegedly had that night, and that "[t]he most that can be inferred is that [the victim] and the defendant might have been endangered at some point in the future ." The court opined that the only way the jury reasonably could find that Bryan was using or was about to use deadly force against the victim was by "resorting to impermissible speculation." Last, the court opined that this was a "classic example of preemptive strike," which defense of others does not encompass. In so finding, the court highlighted the lack of evidence that the victim was in imminent danger of deadly physical force by Bryan, the fact that the defendant went back and forth between Enfield Street and Magnolia Street multiple times before shooting, and the fact that the defendant approached the vehicle from behind. On the basis of those three reasons, the court denied the defendant's request to instruct the jury on defense of others. We begin our analysis by setting forth our standard of review. "[T]he fair opportunity to establish a defense is a fundamental element of due process of law . This fundamental constitutional right includes proper jury instructions on the elements of [defense of others] so that the jury may ascertain whether the state has met its burden of proving beyond a reasonable doubt that the [crime] was not justified.... Thus, [i]f the defendant asserts [defense of others] and the evidence indicates the availability of that defense, such a charge is obligatory and the defendant is entitled, as a matter of law, to [an] . instruction [on defense of others]." (Citations omitted; internal quotation marks omitted.) State v. Bryan, 307 Conn. 823, 832, 60 A.3d 246 (2013). "[I]n reviewing the trial court's rejection of the defendant's request for a jury charge on [defense of others], we . adopt the version of the facts most favorable to the defendant which the evidence would reasonably support." (Internal quotation marks omitted.) Id., at 836, 60 A.3d 246 ; see also State v. Lewis, 220 Conn. 602, 619, 600 A.2d 1330 (1991). We next look at the relevant legal principles surrounding defense of others. General Statutes § 53a-19 (a) codifies defense of others and provides in relevant part: "[A] person is justified in using reasonable physical force upon another person to defend . a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm." "The defense of others, like self-defense, is a justification defense. These defenses operate to exempt from punishment otherwise criminal conduct when the harm from such conduct is deemed to be outweighed by the need to avoid an even greater harm or to further a greater societal interest.... Thus, conduct that is found to be justified is, under the circumstances, not criminal.... All justification defenses share a similar internal structure: special triggering circumstances permit a necessary and proportional response.... One common formulation of the necessity requirement gives the actor the right to act when such force is necessary to defend himself [or a third person]. But this formulation fails to highlight the two essential parts of the necessity requirement . force should be permitted only (1) when necessary and (2) to the extent necessary. The actor should not be permitted to use force when such force would be equally as effective at a later time and the actor suffers no harm or risk by waiting.... Accordingly, neither self-defense, nor the defense of others, encompass[es] a preemptive strike." (Citations omitted; internal quotation marks omitted.) State v. Bryan, supra, 307 Conn. at 832-33, 60 A.3d 246. In asserting a claim of defense of others, the defendant has only the burden of production, meaning that "he merely is required to introduce sufficient evidence to warrant presenting his claim of [defense of others] to the jury." (Internal quotation marks omitted.) Id., at 834, 60 A.3d 246. "[T]he evidence adduced by the defendant must be sufficient [if credited by the jury] to raise a reasonable doubt in the mind of a rational juror as to whether the defendant acted in [defense of another]." (Internal quotation marks omitted.) Id. The burden of production on the defendant is "slight" and "may be satisfied if there is any foundation in the evidence [for the defendant's claim], no matter how weak or incredible"; (internal quotation marks omitted); and in producing evidence, the defendant "may rely on evidence adduced either by himself or by the state to meet this evidentiary threshold." (Emphasis omitted; internal quotation marks omitted.) Id."[O]nce a defendant identifies sufficient evidence in the record to support a requested jury charge, he is entitled thereto as a matter of law, even if his own testimony, or another of his theories of defense, flatly contradicts the cited evidence." Id., at 834-35, 60 A.3d 246. Although the defendant's burden may be slight, "[b]efore the jury is given an instruction on [defense of others] . there must be some evidentiary foundation for it. A jury instruction on [defense of others] is not available to a defendant merely for the asking.... However low the evidentiary standard may be, it is nonetheless a threshold the defendant must cross." (Internal quotation marks omitted.) State v. Montanez, 277 Conn. 735, 750, 894 A.2d 928 (2006). "Although it is the jury's right to draw logical deductions and make reasonable inferences from the facts proven . it may not resort to mere conjecture and speculation." (Internal quotation marks omitted.) State v. Bryan, supra, 307 Conn. at 835, 60 A.3d 246 ; see also State v. Montanez, supra, at 750, 894 A.2d 928 ("[t]he defendant may not ask the court to boost him over the sill upon speculation and conjecture" [internal quotation marks omitted] ). Additionally, "in order to submit a defense of others defense to the jury, a defendant must introduce evidence that the defendant reasonably believed [the attacker's] unlawful violence to be imminent or immediate.... Under § 53a-19 (a), a person can, under appropriate circumstances, justifiably exercise repeated deadly force if he reasonably believes both that [the] attacker is using or about to use deadly force against [a third person] and that deadly force is necessary to repel such attack.... The Connecticut test for the degree of force in . [defense of others] is a subjective-objective one. The jury must view the situation from the perspective of the defendant. Section 53a-19 (a) requires, however, that the defendant's belief ultimately must be found to be reasonable." (Internal quotation marks omitted.) State v. Bryan, supra, at 835-36, 60 A.3d 246. On the basis of our thorough review of the record, we conclude that the defendant did not cross the low evidentiary threshold to entitle him to a charge on the defense of others and, accordingly, we conclude that the trial court properly refused to instruct the jury on that theory. Adopting the version of the facts most favorable to the defendant, the jury could have reasonably concluded that Bryan had expressed previously his desire to have the victim killed, that he solicited the defendant to kill the victim, that he was angry that the defendant was hesitant to do so, that he threatened the defendant and the victim if the defendant did not kill the victim, and that Bryan had a gun in his possession on that night. This evidence, if credited, could possibly be sufficient to show that the defendant subjectively believed that the victim was at imminent risk of great bodily harm from Bryan, even though there is evidence that this belief was unreasonable. Regardless of whether the defendant had the subjective belief that the victim was in imminent risk of harm, the evidence, however, was insufficient to support the defendant's contention that his perception of imminent danger to the victim was objectively reasonable at the time he fired the gun so as to justify his claimed belief that it was necessary to do so in order to defend the victim. In short, the evidence does not support a finding that the victim was at imminent risk of great bodily harm from Bryan when she was shot by the defendant. Rather, the evidence was probative of the fact that, after much indecision, the defendant engaged in a preemptive strike against Bryan, an act which is not justified under a defense of others theory. Id., at 833, 60 A.3d 246. In support of his claim that his belief of the imminent risk of grave harm to the victim was reasonable, the defendant suggests that there was evidence that Bryan fired a gun from within the victim's car. As support for this contention, he highlights the fact that Walker originally told the police that he heard two gunshots that night and that there was a defect in the car, which the police labeled "bullet hole 2." See footnote 11 of this opinion. Hendrix testified, however, that she did not recover a bullet from within the car, there were no physical indicators that the defect actually was created by a bullet, and that even if the defect had been created by a bullet, she could not say when it was made. Thus, this evidence is wholly insufficient, even when viewed in the defendant's favor, to establish that Bryan fired a gun from within the victim's car, placing her in imminent danger of great physical harm inflicted by Bryan. The only way a jury could come to such a conclusion would be through impermissible conjecture and speculation. Even if we assume that Bryan did have a second gun that night, which is supported only by the defendant's own testimony, there was no evidence to suggest that Bryan was "using or about to use deadly physical force, or . inflicting or about to inflict great bodily harm" upon the victim. General Statutes § 53a-19 (a). There was no evidence that Bryan was pointing the gun at the victim or even that he had it in his hand at the time the defendant fired the gun. Further, there was no evidence that Bryan made any furtive movements to retrieve a weapon. In fact, the defendant testified that at the time he fired the gun at the car, Bryan was leaning over toward the victim, grabbing the steering wheel to help direct the car. Additionally, Bryan was yelling at the victim to drive away, which undermines the defendant's argument that he believed Bryan was about to inflict great bodily harm upon her, as she could not have driven the car away if she was seriously injured. Additionally, the defendant testified that he went back and forth between Magnolia Street and Enfield Street three times before shooting the gun. Even after Bryan allegedly brandished a nine millimeter gun at the defendant before retreating back to the victim's car, where the victim was sitting, the defendant sat in Bryan's car on Magnolia Street "for a minute" before returning to Enfield Street, where he "sat there again for a little bit," then stood behind a parked car while "trying to get up the nerve" to shoot Bryan. In the time between the alleged confrontation with the nine millimeter and the shooting of the victim, the defendant did not seek assistance for the victim from a third party or from the police, even though the Hartford police station was less than five minutes from that location. The fact that the defendant left the victim alone with Bryan, when the defendant knew Bryan was armed, undercuts the notion that one could reasonably believe that the victim was at imminent risk of great bodily harm from Bryan. In short, the defendant's actions in coming and going to and from the scene several times before the shooting erodes any basis for determining that a reasonable person, under these circumstances, could conclude that the victim was in imminent danger of great bodily harm from Bryan at the moment the defendant fired into the vehicle. Viewed in the light most favorable to the defendant, evidence that Bryan was angry at the time, may have had a gun, was looking to have the victim killed, and threatened to kill the defendant and the victim if the defendant did not kill her, was nevertheless insufficient to satisfy even the slight burden placed on the defendant to show that it would have been objectively reasonable for him to believe that the victim was at imminent risk of having grave bodily harm inflicted upon her by Bryan. At most, the jury could have inferred from such evidence that the victim might be endangered at some point in the future. Thus, no reasonable jury could have found the defendant's belief that the victim was at risk of imminent harm from Bryan at the time the defendant fired the gun to be objectively reasonable. "Viewed in the light most favorable to the defendant, the evidence was insufficient to raise a reasonable doubt in the mind of a rational juror as to whether the defendant acted in [the victim's] defense." State v. Bryan, supra, 307 Conn. at 838-39, 60 A.3d 246. Accordingly, the trial court properly refused to instruct the jury as requested on the defendant's defense of others theory. II The defendant claims next that the trial court improperly restricted defense counsel from arguing defense of others and renunciation in closing arguments, thereby violating his right to the effective assistance of counsel under the sixth amendment to the United States constitution. The defendant concedes that this claim is unpreserved, but, nevertheless, seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), as modified by In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015), and the plain error doctrine. See Practice Book § 60-5. "[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. 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." (Emphasis in original; footnote omitted.) State v. Golding, supra, 213 Conn. at 239-40, 567 A.2d 823. "The defendant bears the responsibility for providing a record that is adequate for review of his claim of constitutional error.... The defendant also bears the responsibility of demonstrating that his claim is indeed a violation of a fundamental constitutional right.... 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 . exists and whether it . deprived the defendant of a fair trial." (Citations omitted.) Id., at 240-41, 567 A.2d 823. In the present case, we conclude that the defendant's claim meets the first two prongs of the Golding test, as the record is adequate to review the alleged claim of error, and the claim is of constitutional magnitude alleging the violation of a fundamental right. See State v. Arline, 223 Conn. 52, 63, 612 A.2d 755 (1992) ("The right to the assistance of counsel ensures an opportunity to participate fully and fairly in the adversary fact-finding process.... The opportunity for the defense to make a closing argument in a criminal trial has been held to be a basic element of the adversary process and, therefore, constitutionally protected under the sixth and fourteenth amendments." [Citation omitted; internal quotation marks omitted.] ). Accordingly, the claim is reviewable. We further conclude, however, that the defendant has failed to demonstrate that the alleged constitutional violation exists and deprived him of a fair trial. The following additional facts are relevant to our resolution of this claim. During the February 10, 2015 charge conference, the defendant filed a request to charge, asking that the court give the jury an instruction on renunciation of criminal purpose as a defense to conspiracy. The court refused to give such an instruction, stating "that there [did] not exist a foundation in the evidence that the defendant took the requisite steps prior to the commission of the offense to deprive his complicity of its effectiveness ." In addition, the defendant asked the court to instruct the jury on the defense of others claim. As discussed in part I of this opinion, the court correctly denied that request. After the court reviewed the entirety of the jury instructions with the parties, the state requested that defense counsel be precluded from arguing defense of others or renunciation in her closing argument. The court agreed, stating: "I understand that the defense has objected to the court's decisions regarding the request to charge . but during closing argument, the parties should not make any arguments relating to defense of others and renunciation. It's not in the case, at this point." Defense counsel did not object to the court's ruling. Although never using the terms "defense of others" or "renunciation," defense counsel nonetheless argued facts that related to those two theories in her closing argument. Defense counsel argued: "[T]he truth has been told since the very beginning of this case. It would have been simpler and cleaner and nicer for [the defendant] if he could've said: well, yeah, I saw [Bryan] pointing that gun at [the victim]. Or, better: I saw [Bryan] shoot that gun from inside that car. Or: I heard that shot." She also mentioned several more times that there was testimony that two gunshots had been fired that night. She also argued that "one of [the defendant's] stated objectives was to try to protect [the victim].... You can only infer that he was really trying to kill [Bryan] . But we don't have a freeze-frame video component in this case where we can just stop the action and say: yes, [Bryan] has a [nine millimeter gun] and, yes, he's pointed it out because . he saw [the defendant] coming up. Or: yes, [Bryan] has a [nine millimeter gun]. He realizes [the defendant] isn't going to kill [the victim] for him, and so he's pointing the [nine millimeter gun] at [the victim]. We don't have the video cameras. That, unfortunately, is life." Additionally, defense counsel commented: "[I]f [the defendant] wanted to see [the victim] dead, he didn't have to do this routine of coming up from behind these cars. He could have walked out of that cut . and done what [Bryan] asked him to do, which is unload the [.44 caliber revolver] in the driver's side door of the vehicle, into her. That's not what happened." Further, she argued that "to be a murderer, you would have to know exactly, exactly what [the defendant's] intent was and exactly what [Bryan] was doing at the time." After closing arguments, the state objected to portions of defense counsel's argument, claiming that she had violated the court's order not to discuss defense of others and renunciation. Defense counsel replied: "I was talking about the evidence when I was saying [he was] there to protect [the victim] or [he was] there to protect himself. [The court] ruled essentially that . the evidence did not support any of those defenses, so I didn't say the defenses. I just said what the evidence was.... I talked about the evidence instead of the defenses." The court overruled the state's objection and stated that it did not think defense counsel had breached the court's order. On appeal, the defendant argues that the court improperly restricted his closing argument by disallowing defense counsel from arguing defense of others and renunciation, thereby violating his right to the effective assistance of counsel under the sixth amendment. We are not persuaded. "In general, the scope of final argument lies within the sound discretion of the court . subject to appropriate constitutional limitations.... It is within the discretion of the trial court to limit the scope of final argument to prevent comment on facts that are not properly in evidence, to prevent the jury from considering matters in the realm of speculation and to prevent the jury from being influenced by improper matter that might prejudice its deliberations.... While we are sensitive to the discretion of the trial court in limiting argument to the actual issues of the case, tight control over argument is undesirable when counsel is precluded from raising a significant issue." (Citations omitted; internal quotation marks omitted.) State v. Arline, supra, 223 Conn. at 59-60, 612 A.2d 755. "Counsel may comment upon facts properly in evidence and upon reasonable inferences drawn from them.... Counsel may not, however, comment on or suggest an inference from facts not in evidence." (Citation omitted; emphasis omitted; internal quotation marks omitted.) Id., at 58, 612 A.2d 755. In arguing that the court erred in limiting his closing argument, the defendant relies on our Supreme Court's holding in Arline and states that the facts in that case are "nearly identical" to the facts in the present case. The defendant's reliance on Arline, however, is misplaced. In Arline, the court precluded defense counsel from referring during closing argument "to any charges against the complainant that had been nolled or disposed of subsequent to the alleged sexual assault or to any civil claim that the complainant might pursue with respect to the alleged sexual assault." State v. Arline, supra, 223 Conn. at 57, 612 A.2d 755. The defendant in Arline argued that those facts "supported an inference that the complainant's testimony had been motivated by these potential benefits" which he would have used, in closing, to challenge the complainant's credibility. Id., at 58, 612 A.2d 755. Our Supreme Court found error in that case because the trial court restricted defense counsel from commenting on those facts which were properly in evidence. Id., at 63-64, 612 A.2d 755. Here, unlike in Arline, defense counsel was precluded from discussing her legal theories of the case that the court had already ruled were unsupported by the evidence. The court did not preclude defense counsel from arguing facts elicited at trial, but precluded her from arguing that those facts supported the legal theory that the defendant shot the victim in trying to protect her from Bryan, or that the defendant renounced his participation in the conspiracy. Indeed, when the state objected to portions of defense counsel's closing argument, defense counsel argued, "I was talking about the evidence when I was saying [he was] there to protect [the victim] or [he was] there to protect himself. [The court] ruled essentially that . the evidence did not support any of those defenses, so I didn't say the defenses. I just said what the evidence was.... I talked about the evidence instead of the defenses." (Emphasis added.) It is clear from her statements in closing arguments, as well as in her argument opposing the state's objection to her closing argument, that defense counsel understood the distinction between arguing the facts in evidence and arguing the precluded theories of defense of others and renunciation. As to the claim of defense of others, defense counsel argued that the defendant was trying to protect the victim from Bryan, that there were two gunshots that night, and that the case would have been much cleaner if the defendant had testified that Bryan had a gun and was pointing it at the victim, which all speaks to his theory of defense of others. Additionally, defense counsel highlighted the defendant's renunciation, without specifically saying the word, when she argued that the defendant could have done what Bryan asked him to do that night, but did not. She argued that in order for the defendant to be a murderer, the jury would need to know his intent and Bryan's actions. Implicit in that argument is that the defendant's intent was to change the plan and shoot Bryan, not the victim, which is the crux of the defendant's renunciation argument. Also implicit in that argument is the contention that Bryan's actions placed the victim in imminent harm that night, and, therefore, that the defendant was justified in shooting at Bryan to defend her. Given this, defense counsel understood the distinction and knew that under the court's ruling she could, and indeed did, comment on the facts properly in evidence, without taking the next step to discuss defense of others and renunciation, which the court already had ruled were unsupported by the evidence. Accordingly, the defendant cannot show that "the alleged constitutional violation . exists and . deprived the defendant of a fair trial"; State v. Golding, supra, 213 Conn. at 240, 567 A.2d 823 ; and, thus, this claim fails to satisfy the third prong of Golding. The defendant asserts, in the alternative, that his claim is reviewable under the plain error doctrine. "This 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, a defendant] cannot prevail under [the plain error doctrine] . unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice." (Citations omitted; internal quotation marks omitted.) State v. Myers, 290 Conn. 278, 289, 963 A.2d 11 (2009). Upon review of the entire record, we conclude that plain error relief is unwarranted. The defendant has failed to show that the court's limited restriction on his closing argument "was so obviously erroneous that it affected the fairness or integrity of or public confidence in the judicial proceedings." State v. Thompson, 71 Conn.App. 8, 14, 799 A.2d 1126 (2002). Further, the defendant has failed to show that "this is one of those extraordinary situations where not granting the requested relief will result in manifest injustice." Id. Accordingly, the court did not abuse its discretion in limiting the defendant's closing argument. III Last, the defendant claims that the court gave the jury a faulty and misleading instruction on conspiracy, and seeks to have his conviction of conspiracy to commit murder reversed on that basis. Specifically, the defendant claims that the court "failed to instruct that [the] defendant had to specifically intend to enter into an agreement to commit murder." The defendant concedes that this claim is unpreserved, but, nevertheless, seeks review pursuant to State v. Golding, supra, 213 Conn. at 239-40, 567 A.2d 823. We conclude that the defendant has waived any challenge to the relevant jury instruction, pursuant to State v. Kitchens, 299 Conn. 447, 10 A.3d 942 (2011), and, therefore, is not entitled to Golding review. The following additional facts are relevant to our resolution of this claim. At the February 10, 2015 charge conference, the court noted that it had provided defense counsel and the state with two different drafts of the proposed jury instructions, one on February 5, 2015, and the second on February 10, 2015. In both drafts, the subsection regarding the "agreement" element of conspiracy to commit murder provided, inter alia: "The first element is that there was an agreement between two or more persons. It is not necessary for the state to prove that there was a formal or express agreement between them. It is sufficient to show that the parties knowingly engaged in a mutual plan to do a criminal act.... [T]he first element that the state must prove beyond a reasonable doubt is that the defendant entered into an agreement with at least one other person to engage in conduct constituting murder." (Emphasis added.) In addition, in summarizing the elements of conspiracy to commit murder, the two drafts provided: "In summary, the state must prove beyond a reasonable doubt that . the defendant specifically intended to cause the death of another person." (Emphasis added.) The language used in the drafts came from the model jury instructions on the Judicial Branch website at the time of the conference. Neither the defendant nor the state objected to the use of any of this language. The state did object to a different portion of the proposed conspiracy charge, arguing that it was unnecessary to include language that the state need not show that the defendant directly communicated with his coconspirators, or that they even knew each other's names, as this was irrelevant under the facts of the present case. The defense agreed with the state. After agreeing to take that language out, the court then stated: "Okay. All right. So that looks good. All right. Any other issues with count two language?" Neither party indicated that it had any further changes to count two, and the court moved on to discuss the proposed language for count three of the information, which charged the defendant with criminal possession of a firearm. The following day, February 11, 2015, the court instructed the jury and used the conspiracy language that it had provided in the draft instructions, including the previously mentioned language in the subsection on agreement, as well as the language in the summary paragraph. After the court read the entirety of the instructions to the jury, the defendant renewed his objections made during the charge conference, none of which were in regard to the conspiracy count, and he did not make any additional objections. On appeal, the defendant argues that the court's instruction to the jury on count two, conspiracy to commit murder, was "faulty and misleading." Specifically, he argues that the use of the language regarding the agreement element as well as the language in the summarizing paragraph was in error because the court failed to instruct the jury that the defendant had to "specifically intend to enter into an agreement to commit murder." We conclude that the defendant has waived this claim. "It is well established in Connecticut that unpreserved claims of improper jury instructions are reviewable under Golding unless they have been induced or implicitly waived.... The mechanism by which a right may be waived . varies according to the right at stake.... For certain fundamental rights, the defendant must personally make an informed waiver.... For other rights, however, waiver may be affected by action of counsel . [including] the right of a defendant to proper jury instructions.... Connecticut courts have consistently held that when a party fails to raise in the trial court the constitutional claim presented on appeal and affirmatively acquiesces to the trial court's order, that party waives any such claim [under Golding ].... [W]hen the trial court provides counsel with a copy of the proposed jury instructions, allows a meaningful opportunity for their review, solicits comments from counsel regarding changes or modifications and counsel affirmatively accepts the instructions proposed or given, the defendant may be deemed to have knowledge of any potential flaws therein and to have waived implicitly the constitutional right to challenge the instructions on direct appeal.... [C]ounsel's discussion of unrelated parts of the jury charge at an on-the-record charge conference . demonstrate[s] that counsel was sufficiently familiar with the instructions to identify those portions of the instructions with which [she] disagreed. [T]o the extent that [she] selectively discussed certain portions of the instructions but not others, one may presume that [she] had knowledge of the portions that [she] did not discuss and found them to be proper, thus waiving the defendant's right to challenge them on direct appeal." (Citations omitted; internal quotation marks omitted.) State v. Herring, 151 Conn.App. 154, 169-70, 94 A.3d 688 (2014), aff'd, 323 Conn. 526, 147 A.3d 653 (2016), citing State v. Kitchens, supra, 299 Conn. 447, 10 A.3d 942. Our Supreme Court has stated that it is sufficient to show that defense counsel had a meaningful opportunity to review the proposed instructions if she was given the opportunity to review them overnight. See State v. Webster, 308 Conn. 43, 63, 60 A.3d 259 (2013). In the present case, defense counsel was provided a first draft of the instructions on February 5, 2015, four days prior to the charge conference and, accordingly, had a meaningful opportunity to review the proposed jury instructions at issue. Additionally, defense counsel discussed and objected to other portions of the jury instructions at the charge conference, and, therefore, it is presumed that she had knowledge of the language in question, even though she did not discuss explicitly that portion of the proposed instructions during the charge conference. See State v. Herring, supra, 151 Conn.App. at 170, 94 A.3d 688. We conclude that the defendant had a meaningful opportunity to review the jury instruction at issue, failed to object to that instruction, and, therefore, waived his right to challenge the instruction on appeal. The judgment is affirmed. In this opinion the other judges concurred. The defendant originally appealed to our Supreme Court pursuant to General Statutes § 51-199 (b) (3). The appeal subsequently was transferred to this court pursuant to Practice Book § 65-1. At various times during trial, the victim was referred to as Bryan's girlfriend, his "[p]art-time girlfriend," his "side girlfriend," and his "jump-off," which is a term for a person used for sex. In his testimony, the defendant stated that these events happened during the morning of April 29, 2013, but it is clear from his testimony that this was a mistake and that he was actually talking about April 28, 2013. Early testified that he received information about the robbery from Bryan and the defendant's cousin, Everett Walker, and then spoke with Manchester police, but did not testify as to the content of the information he was given. General Statutes § 53a-54a (a) provides in relevant part: "A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person ." General Statutes § 53a-48 (a) provides: "A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy." General Statutes § 53a-217 (a) provides in relevant part: "A person is guilty of criminal possession of a firearm . (1) when such person possesses a firearm . and . has been convicted of a felony committed prior to, on or after October 1, 2013 ." The defendant also initially asked that the jury be instructed on self-defense, but decided not to pursue that request at the charging conference. The court charged the jury on transferred intent. The court stated: "The evidence in this case raises the issue of transferred intent. The principle of transferred intent was created to apply to the situation of an accused who intended to kill a certain person and by mistake killed another. His intent is transposed from the person to whom it was directed to the person actually killed. It is not necessary for a conviction of murder that the state prove that the defendant intended to kill the person whom he did in fact kill. It is sufficient if the state proves that, acting with the intent to kill a person, he in fact killed a person." As part of his argument that the court should have given the jury a defense of others instruction, the defendant claims that the court "did not view the evidence in a light most favorable to [the] defendant. Had it done so, it would have realized there was sufficient evidence to raise a reasonable doubt that [the] defendant acted in defense of [the victim], and that he reasonably believed deadly force was necessary to defend [the victim] against the imminent use of deadly force by [Bryan]." Essentially, the defendant argues that because the court did not find in his favor on this issue, it must have used the incorrect standard. This argument is unavailing, as there is evidence that the court did, in fact, view the evidence in the light most favorable to the defendant in denying his request for the instruction. First, the defendant reminded the court of the correct standard during argument requesting the instruction. Second, the court stated that it was relying primarily on three cases in making its decision, all of which provided the appropriate standard: State v. Bryan, 307 Conn. 823, 836, 60 A.3d 246 (2013) ; State v. Lewis, 220 Conn. 602, 619, 600 A.2d 1330 (1991) ; and State v. Singleton, 292 Conn. 734, 746, 974 A.2d 679 (2009). Third, the court specifically stated that it waited to make its decision until after the defendant testified and evidence was concluded. Accordingly, there is no merit to the defendant's contention that the court applied the wrong standard. In response, defense counsel argued that there was objective evidence that Bryan pulled out a firearm because there was the hole in the A-pillar of the car that the police had labeled "bullet hole [number] 2." The court replied that "that infers there was more than one shot fired, and that's not necessarily consistent with the evidence, either." Defense counsel further argued that there was evidence of a second gunshot because Walker testified that in his original statement to the police, he said that he heard two gunshots. The court noted that argument and moved on. The evidence suggests further that Bryan's plan was to have the victim killed before she became seven months pregnant so that the fetus was not "liable as another body." At the time of her death, the victim was nineteen weeks, almost five months, pregnant. Though this does not necessarily prove that Bryan would have waited two more months to plan the victim's murder, it is illustrative evidence to further undermine the defendant's argument that the victim was in imminent harm. The defendant does not challenge this decision on appeal. The defendant argues in his reply brief that his claim cannot be waived pursuant to Kitchens because the model jury instructions were revised on March 4, 2015, after he was convicted, to include language regarding a defendant's specific intent to enter into an agreement. The defendant argues, therefore, that this "substantive change" to the model jury instructions should apply retroactively to pending cases, just as "substantive changes to the law" would. This argument is unavailing. The preamble to the model jury instructions expressly provides: "This collection of jury instructions . is intended as a guide for judges and attorneys . The use of these instructions in entirely discretionary and their publication by the Judicial Branch is not a guarantee of their legal sufficiency." (Emphasis added.) Connecticut Criminal Jury Instructions (4th Ed. 2008) preamble, available at http://www.jud.ct.gov/ji/Criminal/Criminal.pdf (last visited October 11, 2017) (copy contained in the file of this case in the Appellate Court clerk's office). Accordingly, if defense counsel believed that the statement of law provided in the jury instructions was incorrect, she was obligated to object to its use, which she did not. In fact, defense counsel did object at the charge conference to another portion of the proposed instructions, regardless of the fact that it was from the model jury instructions. In discussing the proposed instructions on count one, murder, defense counsel objected to the language in the draft which provided: "This means that the defendant's conduct was the proximate cause of the decedent's death. You must find it proved beyond a reasonable doubt that [the victim] died as a result of the actions of the defendant." Defense counsel argued that the court "[states] that sentence as if [the court is] making a conclusion for the jury. It's confusing and I'm objecting to [the] language." The court stated that it was using the language from the model jury instructions to which defense counsel replied, "I still have the same problem with it even though it's the model jury instructions.... So, I am objecting." The court noted the objection and used the language as proposed in its instructions. Defense counsel knew, therefore, that regardless of the origin of the language used by the court in the proposed instructions, she was obligated to object if she felt it was a misstatement of law.

12491349

Brandon V. SMITH v. TOWN OF REDDING et al.

Smith v. Town of Redding

2017-10-17

AC 38704

318

325

172 A.3d 318

172

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

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

Fastcase

Brandon V. SMITH v. TOWN OF REDDING et al.

Brandon V. SMITH v. TOWN OF REDDING et al. AC 38704 Appellate Court of Connecticut. Argued May 30, 2017 Officially released October 17, 2017 A. Reynolds Gordon, with whom was Frank A. DeNicola, Jr., for the appellant (plaintiff). Thomas R. Gerarde, with whom was Emily E. Holland, for the appellee (named defendant). Sheldon, Mullins and Sullivan, Js.

3404

21079

SULLIVAN, J. In this absolute public nuisance action, the plaintiff, Brandon V. Smith, appeals following a jury trial from the judgment of the trial court rendered in favor of the defendant town of Redding. On appeal, the plaintiff claims that the trial court improperly failed: (1) to admit evidence of involuntary subsequent remedial measures; and (2) to instruct the jury on the Redding Zoning Regulations. We affirm the judgment of the trial court. On the basis of the record provided, the jury reasonably could have found the following facts. After consuming alcoholic drinks over the course of an evening at a couple of establishments in Redding, the plaintiff departed the Lumberyard Pub around 2 a.m. on September 17, 2011. Departing the pub, the plaintiff walked across the parking lot in front of the pub to the exit onto the street. On the edge of the parking lot was a wooden guardrail and, on the other side of the guardrail, there was a landscaped area atop a retaining wall. The retaining wall began on a plane level with the ground, and the ground then sloped down along the length of the wall. On the night of his fall, the plaintiff stepped onto the wall at ground level and walked the length of the wall before falling off, landing on his head and shoulder. The retaining wall had been constructed as part of the defendant's federally funded streetscape project in the Georgetown section of the town. The defendant hired BL Companies, Inc., to design the project and J. Rondano, Inc., to construct it. As designed and constructed, the retaining wall was without a fence atop the wall. On December 27, 2011, the plaintiff commenced this action against the defendant. See footnote 1 of this opinion. He then amended his complaint several times. In his substituted complaint filed on April 15, 2015, the plaintiff alleged that the defendant caused the retaining wall to be built without a fence, that such wall constituted an absolute public nuisance, and that this caused his fall and resulting injuries. Following a jury trial, the jury returned a verdict in favor of the defendant on November 12, 2015, determining in its interrogatories that the plaintiff failed to prove that the retaining wall was inherently dangerous, in that it had a natural tendency to inflict injury on person or property. The plaintiff filed a motion to set aside the verdict, which the court denied on December 22, 2015. Thereafter, the court rendered judgment in favor of the defendant, and this appeal followed. Additional facts will be set forth as necessary to the resolution of this appeal. I The plaintiff claims that the trial court abused its discretion when it failed to admit evidence of a fence that the defendant had built atop the retaining wall subsequent to his fall. Although he acknowledges that our courts have not recognized such an exception to the exclusion of evidence of subsequent remedial measures, he argues that the fence was built involuntarily, and, thus, the bar to evidence of subsequent remedial measures is inapplicable. Without deciding whether such evidence could be admitted, we conclude that we are unable to review the plaintiff's claim because the record before this court does not allow us to evaluate whether the trial court's ruling harmed him. As a preliminary matter, we set forth the standard for public nuisance liability as expressed by our Supreme Court. "Our prior decisions have established that in order to prevail on a claim of nuisance, a plaintiff must prove that: (1) the condition complained of had a natural tendency to create danger and inflict injury upon person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; [and] (4) the existence of the nuisance was [the] proximate cause of the plaintiffs' injuries and damages.... [W]here absolute public nuisance is alleged, the plaintiff's burden includes two other elements of proof: (1) that the condition or conduct complained of interfered with a right common to the general public . and (2) that the alleged nuisance was absolute, that is, that the defendants' intentional conduct, rather than their negligence, caused the condition deemed to be a nuisance." (Citations omitted; internal quotation marks omitted.) State v. Tippetts-Abbett-McCarthy-Stratton, 204 Conn. 177, 183, 527 A.2d 688 (1987). The following additional procedural facts are relevant to this claim. On September 15, 2015, the plaintiff filed a motion in limine seeking, inter alia, a preliminary ruling as to the admissibility of evidence of a fence constructed atop the retaining wall in April, 2015. Specifically, the plaintiff sought to introduce evidence at trial that the Department of Transportation (department) ordered the installation of the fence. He also sought to introduce into evidence photographs of the fence. The plaintiff argued, inter alia, that the exclusionary rule regarding evidence of subsequent remedial measures; see § 4-7 of the Connecticut Code of Evidence ; did not apply because it excludes evidence of voluntary remedial measures but, in this case, construction of the fence was required from the start of the project and was involuntarily built. In an October 14, 2015 order, the court determined that evidence of any subsequent remedial measures as to the retaining wall was inadmissible. In his motion to set aside the verdict, the plaintiff again raised the issue of the admissibility of evidence of the subsequently built fence, citing arguments made in prior briefs and oral arguments before the court, as a ground to set aside the verdict. The court denied the plaintiff's motion, concluding that any evidence of the fence was inadmissible under § 4-7 of the Connecticut Code of Evidence. "[Our appellate courts] review the trial court's decision to admit [or exclude] evidence, if premised on a correct view of the law . for an abuse of discretion.... Under the abuse of discretion standard, [w]e [must] 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.) Filippelli v. Saint Mary's Hospital, 319 Conn. 113, 119, 124 A.3d 501 (2015). Nevertheless, "[b]efore a party is entitled to a new trial because of an erroneous evidentiary ruling, he or she has the burden of demonstrating that the error was harmful.... [A]n evidentiary impropriety in a civil case is harmless only if we have a fair assurance that it did not affect the jury's verdict.... A determination of harm requires us to evaluate the effect of the evidentiary impropriety in the context of the totality of the evidence adduced at trial." (Internal quotation marks omitted.) Filippelli v. Saint Mary's Hospital, supra, at 119, 124 A.3d 501. We conclude that even if we assumed, arguendo, an exception for involuntary measures to the rule against the admission of evidence of subsequent remedial measures, the record before this court would not allow us to analyze whether the plaintiff was harmed by the exclusion of such evidence in this case. When an appellant requests that the court reverse the judgment of the trial court on the basis of an allegedly improper evidentiary ruling, a complete record is particularly important for a reviewing court to consider the extent of the harm suffered, if any. See Desrosiers v. Henne, 283 Conn. 361, 367-69, 926 A.2d 1024 (2007) (declining to review evidentiary claim where defendant provided only excerpts of trial transcripts because it was impossible for reviewing court to determine whether alleged impropriety was harmful); Ryan Transportation, Inc. v. M & G Associates, 266 Conn. 520, 531, 832 A.2d 1180 (2003) (declining to review evidentiary claim where plaintiff did not provide transcript of witness testimony, stating, "even if we assume, arguendo, that the challenged evidentiary ruling was improper, we have no way of discerning whether any such impropriety was harmful in the broader context of the entire trial"); Chester v. Manis, 150 Conn.App. 57, 62-63, 89 A.3d 1034 (2014) (declining to review evidentiary claim because incomplete record left court unable to determine if "alleged impropriety would likely have affected the result of the trial"); Quaranta v. King, 133 Conn.App. 565, 569-70, 36 A.3d 264 (2012) (declining to review plaintiff's evidentiary claim where plaintiff provided only partial transcript of proceedings). A review of our appellate record in the present case reveals that the plaintiff ordered and delivered a paper copy and an electronic copy of the following six transcripts: (1) the October 14, 2015 argument on the plaintiff's motions in limine; (2) the October 27, 2015 argument on the motion to reargue regarding subsequent remedial measures; (3) the October 30, 2015 direct examination and cross-examination of lay witness Aimee Pardee; (4) the November 3, 2015 direct examination and cross-examination of lay witness Priti Bhardwaj; (5) the November 12, 2015 argument on exceptions to the jury charge; and (6) the December 14, 2015 argument on the motion to set aside the verdict. Additionally, the plaintiff's appendix includes a single page transcript described as an excerpt of the October 30, 2015 testimony of Natalie Ketcham. We know for certain that we were not provided with the full testimony of Ketcham, the plaintiff's expert, Richard A. Ziegler, and the plaintiff, or with counsels' closing arguments. Additionally, we know that we were not provided with any testimony from Timothy Wilson or Matthew Cleary, engineers from the department. A lengthy period passed between jury selection and the jury's verdict, suggesting a trial that covered a couple of weeks. Additionally, we are left to speculate about who else testified and the scope and content of their testimony regarding the dangerousness or safety of the retaining wall without a fence. For example, the defendant disclosed an expert, but we do not know whether he testified or the content of his testimony relevant to this issue. It is the appellant's burden to provide a complete record on appeal. Practice Book § 61-10. He also is responsible for establishing that the allegedly improper evidentiary ruling of the trial court harmed him. See Connecticut Light & Power Co. v. Gilmore, 289 Conn. 88, 128, 956 A.2d 1145 (2008) ("Even when a trial court's evidentiary ruling is deemed to be improper, we must determine whether that ruling was so harmful as to require a new trial.... In other words, an evidentiary ruling will result in a new trial only if the ruling was both wrong and harmful." [Internal quotation marks omitted.] ). We conclude that the plaintiff has not carried his burden under the circumstances of this case. On the record before this court, we are unable to determine whether the trial court's evidentiary ruling affected the jury's verdict. Even if we assume, arguendo, that the court improperly excluded the evidence regarding the department's order to construct a fence atop the restraining wall, we are unable to assess fully the impact of this ruling. The jury's verdict was based upon its conclusion that the plaintiff failed to prove that the wall without a fence was inherently dangerous in that it had a natural tendency to inflict injury on person or property. Although the department's order may have carried some added weight with the jury, the plaintiff was able to argue that the department's bridge design manual called for a fence and that the department called for a fence during the design of the wall. The bridge design manual, the state building code, and The BOCA National Building Code (14th Ed. 1999) were admitted into evidence. Without the testimony of other witnesses, including the plaintiff's expert and at least two state engineers, and counsel's closing arguments, we are unaware of the extent to which the plaintiff was able to present other evidence that the wall without a fence was inherently dangerous. Accordingly, we are unable to analyze whether the other evidence in the case would have given us the fair assurance that the exclusion of the evidence of subsequent remedial measures did not affect the jury's verdict in order to determine whether the plaintiff was harmed by the trial court's ruling. II The plaintiff also claims that the trial court improperly failed to instruct the jury on the Redding Zoning Regulations (zoning regulations). He asserts that the zoning regulations were relevant evidence that the retaining wall was inherently dangerous without a fence. First, he argues that the zoning regulations, which included safety as one of its purposes, applied to the construction of the wall. Second, he asserts that, even if the zoning regulations did not apply to the wall, they established a safety standard, which the court should have instructed the jury to consider when determining whether the wall was inherently dangerous. We conclude that the plaintiff has failed to preserve his claim for appeal. The record does not reveal a request to charge regarding inherent danger and the zoning regulations, or the safety standards allegedly evinced by those regulations. Although the plaintiff filed a written request to charge and a supplemental request to charge, those requests did not address the issue of inherent danger as it relates to the zoning regulations, and we have not been provided with a record of the charge conference. Additionally, the plaintiff, in his exception to the charge, also did not raise these specific issues. After the court delivered its instructions, it asked the parties whether they wanted to take exceptions to the charge. The plaintiff took exception, stating in relevant part: "Yes, Your Honor. First, Your Honor's failure to charge on the Redding zoning violation, making it a violation to have within the town of Redding a retaining wall more than four feet tall with no fence." This exception, as stated, was insufficient to put the court on notice of the nature of the claimed instructional error, as the plaintiff did not state any grounds for the exception. See generally Herrera v. Madrak, 58 Conn.App. 320, 323, 752 A.2d 1161 (2000). Our review of the record provided reveals that the first time the plaintiff raised his claim that the court should have instructed the jury on the zoning regulations as evidence that the wall, as constructed, constituted an inherently dangerous condition was in his motion to set aside the verdict. The plaintiff set forth essentially the same argument in his memorandum of law in support of his motion to set aside as he does before this court on appeal. Specifically, as to the wall's inherent dangerousness, he first argued to the trial court that the zoning regulations applied under General Statutes § 13a-80d because the wall and the surrounding project were in a state right-of-way and the defendant was a tenant or lessee of the state. He cited evidence from the trial to support this claim. Alternatively, he argued that the zoning regulations were admissible as a safety standard to address the inherent danger, even if the regulations did not apply to the wall. On December 14, 2015, the court heard oral arguments on the motion. In its memorandum of decision, however, the court framed the plaintiff's argument as follows: "The second ground upon which the plaintiff seeks to set aside the verdict is . the court's failure to instruct the jury that the retaining wall was unlawful in that it violated the . zoning regulations." After setting forth the evidence presented at trial, the court concluded that the evidence did not support a charge to the jury concerning the application of the zoning regulations. Practice Book § 16-20 provides in relevant part: "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...." "It is fundamental [however] that claims of error must be distinctly raised and decided in the trial court before they are reviewed on appeal. As a result, Connecticut appellate courts will not address issues not decided by the trial court." (Internal quotation marks omitted.) Tompkins v. Freedom of Information Commission, 136 Conn.App. 496, 511, 46 A.3d 291 (2012) ; see also Crest Pontiac Cadillac, Inc. v. Hadley, 239 Conn. 437, 444 n.10, 685 A.2d 670 (1996) (claims "neither addressed nor decided" by trial court not properly before appellate tribunal). In the present case, we have no record that indicates that the court ever addressed the claim that the plaintiff is making on appeal, namely, that the court should have instructed the jury on the zoning regulations as a safety standard. The court's decision on the motion to set aside the verdict addressed the applicability of the zoning regulations to the third element of nuisance, unreasonable or unlawful use, rather than the first element, inherent danger. Because the trial court did not address or decide the plaintiff's claim regarding the zoning regulations as a safety standard, we decline to address it. The judgment is affirmed. In this opinion the other judges concurred. The plaintiff served his complaint against the defendants, the town of Redding, M. Rondano, Inc. (Rondano), and BL Companies, Inc. (BL Companies). On December 5, 2014, the court rendered summary judgment in favor of BL Companies on the plaintiff's claims against it. Additionally, on July 21, 2015, the plaintiff withdrew his claim against Rondano. Although the town brought a cross claim against Rondano, the court bifurcated that claim to be resolved after the trial between the plaintiff and the town. This appeal is from the trial on the plaintiff's claim of absolute public nuisance against the town. Consequently, Rondano and BL Companies are not parties to this appeal and, therefore, all references to the defendant herein are to the town of Redding. The parties agree that the plaintiff's fall occurred on September 17, 2011. Section 4-7 (a) of the Connecticut Code of Evidence provides in relevant part: "[E]vidence of measures taken after an event, which if taken before the event would have made injury or damage less likely to result, is inadmissible to prove negligence or culpable conduct in connection with the event. Evidence of those measures is admissible when offered to prove controverted issues such as ownership, control or feasibility of precautionary measures." The plaintiff also appears to claim that the court abused its discretion in excluding the zoning regulations from evidence. The record includes, however, the zoning regulations in their entirety as exhibit 20 and excerpts thereof were admitted as exhibit 20a; both exhibits were marked as full exhibits. Corroborating the admission of these exhibits, the limited recorded provided; see part I of this opinion; includes a trial transcript of the plaintiff's attorney requesting exhibits 20 and 20a, reading from the zoning regulations, and questioning the defendant's zoning enforcement officer on the regulations. Our examination of the limited record and the parties' appellate arguments, does not provide any indication that the court limited the admissibility of the regulations or limited the plaintiff's ability to argue their relevance. The jury's verdict was based on its conclusion that the plaintiff had failed to demonstrate that the wall was inherently dangerous. We interpret the plaintiff's arguments that the construction of the wall without a fence violated the zoning regulations to go to evidence of inherent dangerousness. As far as the plaintiff argues that the purported violation had some independent import, this is irrelevant because the jury did not reach the third element of a cause of action for nuisance, which requires that "the use of the land was unreasonable or unlawful ." (Internal quotation marks omitted.) State v. Tippetts-Abbett-McCarthy-Stratton, supra, 204 Conn. at 183, 527 A.2d 688. General Statutes § 13a-80d provides: "The use of any space on, over or below any state highway right-of-way leased by the Commissioner of Transportation to a lessee shall conform with zoning regulations and ordinances of the local government in which the land is located or as modified by a variance pursuant to legal process."

12506103

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 20160

392

401

201 A.3d 392

201

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 and Ecker, 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 20160 Supreme Court of Connecticut. Argued October 19, 2018 Officially released February 19, 2019 Proloy K. Das, with whom was Sarah Gruber, Hartford, for the plaintiffs in error (Timothy D. Walczak et al.). Maura Murphy Osborne, assistant attorney general, with whom, on the brief, was George Jepsen, former attorney general, for the defendant in error (Denise W. Merrill). William M. Bloss, with whom were Alinor C. Sterling and Emily B. Rock, Bridgeport, for the defendants in error (Michael Telesca et al.). Prerna Rao, with whom was Daniel S. Jo, Stamford, for the defendant in error (Rebekah Harriman-Stites). Robinson, C.J., and Palmer, Mullins, Kahn and Ecker, Js.

4672

29014

ROBINSON, C.J. This writ of error is the companion case to Independent Party of CT-State Central v. Merrill , 330 Conn. 681, 200 A.3d 1118 (2019), in which this court affirmed the judgment of the trial court resolving a long running dispute between the Danbury and Waterbury factions of the state's Independent Party by, inter alia, granting declaratory and injunctive relief directing the named defendant in the underlying action, Secretary of the State Denise W. Merrill (Secretary), to accept only those endorsements made pursuant to the party's 2010 bylaws. The plaintiffs in error, thirteen candidates for the state House of Representatives endorsed by the Danbury faction prior to the issuance of the trial court's decision in the underlying action, brought this writ of error to protect their rights with respect to the judgment of the trial court. The endorsed candidates now argue that their writ of error is moot given the unchallenged decision of the Secretary to accept the Danbury faction's endorsements with respect to twelve of them, thus allowing them to be on the Independent Party's ballot line for the 2018 election. Rebekah Harriman-Stites, a candidate endorsed by the Waterbury faction for the 106th assembly district, however, has appeared in the present proceeding as a defendant in error and contends that the writ of error is not moot in light of her request that we order the Secretary to print her name on the ballot in accordance with the trial court's decision. Because the writ of error is moot, and Harriman-Stites' separate request for relief is not properly before us, we dismiss this writ of error. The record reveals the following relevant facts and procedural history. In the underlying action, the plaintiffs, the Independent Party of CT-State Central and its officers, Michael Duff, Donna L. LaFrance, and Roger Palanzo, who lead the Danbury faction of the Independent Party, brought an action seeking declaratory and injunctive relief against two defendants, Michael Telesca and Rocco Frank, Jr., who lead its Waterbury faction. The central dispute in the underlying case concerned which of two sets of bylaws govern the Independent Party under General Statutes § 9-372 (6) and 9-374 -namely, a set of bylaws that the Danbury faction filed with the Secretary in 2006 (2006 bylaws), or a set filed in 2010 (2010 bylaws), which was drafted after Ralph Nader had received a sufficient number of votes in the 2008 presidential election to afford the Independent Party with statewide minor party status for the first time. After a three day trial to the court, on August 21, 2018, the trial court, Hon. A. Susan Peck , judge trial referee, issued a lengthy memorandum of decision. With respect to its specific findings of fact and conclusions of law, the trial court first concluded that the 2010 bylaws were controlling under the statutory scheme governing minor parties, in particular § 9-372 (6) and 9-374, 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 further concluded that the plaintiffs had "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." Instead, the trial court turned to the defendants' counterclaim and special defenses, and concluded that they had "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." Prior to the issuance of the trial court's underlying decision, the Danbury faction published, in the August 15, 2018 edition of the Hartford Courant, notice of the "Independent Party Endorsement Meeting," scheduled for August 20, 2018. On August 20, 2018, the Danbury faction held that endorsement meeting and endorsed certain candidates for the 2018 general election, including each of the endorsed candidates in the present proceeding. On the morning of August 21, 2018, the Danbury faction filed these endorsements with the Secretary. Later that same day, the trial court issued its memorandum of decision. Given some uncertainty about the effect of the trial court's decision on those endorsements, on September 7, 2018, the endorsed candidates filed this writ of error to preserve their rights. On September 7, 2018, the endorsed candidates also filed motions to intervene in the underlying action, and for declaration of an automatic stay pursuant to Practice Book § 72-3A. The trial court did not take any action on these motions. Subsequently, on September 11, 2018, the Secretary advised the parties and the individual candidates running for the 106th assembly district, Mitch Bolinsky, who was endorsed by the Danbury faction, and Harriman-Stites, who was endorsed by the Waterbury faction, by certified letter that the Secretary had received competing endorsements for the Independent Party ballot line. The Secretary informed Bolinsky and Harriman-Stites that, consistent with her policy and General Statutes § 9-250, she would not print either of their names as the Independent Party nominee for that office, unless one of them were to withdraw. Telesca, as chairman of the Waterbury faction, received the letter from the Secretary on September 14, 2018, which was a Friday. That same day, Telesca called Ted Bromley, an attorney with the Secretary's office, and left him a voice mail message. Bromley responded to Telesca with an e-mail stating that he was out of the office and would look into the matter when he returned to the office on Monday. On Thursday, September 20, 2018, not having heard from Bromley, Telesca e-mailed Bromley a letter detailing the trial court's decision in the present case. In that letter, Telesca argued that the only nomination made pursuant to the 2010 bylaws was that of Harriman-Stites, noted that the Waterbury faction had not made any endorsements for certain other House or Probate Judge districts, and concluded that the Secretary must "disregard any nominations that you may have received from the Danbury faction ." Telesca did not hear further from the Secretary's office. On September 25, 2018, the Secretary published a list of nominees for the November, 2018 election, which included the twelve endorsed candidates other than Bolinsky, in accordance with the September 11, 2018 letter. Absentee ballots had been printed during the week of September 17, 2018, and were made available in town clerks on October 5, 2018, as required by General Statutes § 9-140. Further, military and overseas ballots were mailed to voters on September 22, 2018. Shortly thereafter, Harriman-Stites filed a motion to intervene in the underlying action, an objection to the endorsed candidates' motion for an automatic stay, and a caseflow request seeking to have her motion and objection heard along with the other posttrial motions filed by the endorsed candidates. Following a motion for continuance filed by the plaintiffs, to which Harriman-Stites' objected, oral arguments on posttrial motions were rescheduled for October 22, 2018. On October 17, 2018, Harriman-Stites filed a motion for contempt in the trial court against the Secretary, arguing that the court's decision has not been stayed and asking it to find the Secretary "in contempt of the orders of the court and [to] direct the Secretary to act consistent with the court's findings immediately." Although Harriman-Stites asked the trial court to consider this contempt motion at the October 22 hearing, the trial court, Sheridan, J. , rescheduled arguments on that motion and all other posttrial motions for October 29, 2018, because Judge Peck was unavailable until that date. Subsequently, because the October 29 hearing would have been after the statutory deadline for filing sample ballots; see General Statutes § 9-256 ; the trial court, Sheridan, J. , granted Harriman-Stites' request to mark off the October 29 hearing. Accordingly, the trial court has not taken action with respect to any of these posttrial motions filed by the endorsed candidates or Harriman-Stites. In the meantime, briefing and oral argument on this writ of error and the plaintiffs' appeal continued on an expedited basis. See footnote 8 of this opinion. Beyond challenging the merits of the trial court's decision in the underlying action, the endorsed candidates now suggest that this writ of error has been rendered moot by intervening events, namely, the Secretary's September 11, 2018 decision to accept the Danbury faction's twelve unchallenged endorsements, as reflected in the list of nominees that she dated September 25, 2018. In response, Harriman-Stites contends, inter alia, that (1) the writ of error is not moot, and (2) we should direct judgment enforcing the trial court's order and requiring the Secretary to accept the Waterbury faction's endorsement for purposes of the ballots for the 2018 election in the 106th assembly district. We heard oral argument on the writ of error and the underlying appeal on October 19, 2018. After oral arguments, we issued an order denying Harriman-Stites' request in this writ of error "for relief from [this] court prior to the election" and stating that we would issue written opinions in both proceedings "in due course." This is the opinion relating to the writ of error. We first consider whether this writ of error is moot, as argued by the endorsed candidates. "It is well established that [m]ootness implicates [this] court's subject matter jurisdiction and is thus a threshold matter for us to resolve.... [T]he existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.... An actual controversy must exist not only at the time the appeal is taken, but also through-out the pendency of the appeal.... When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot." (Internal quotation marks omitted.) In re Emma F. , 315 Conn. 414, 423-24, 107 A.3d 947 (2015) ; see, e.g., Statewide Grievance Committee v. Burton , 282 Conn. 1, 13, 917 A.2d 966 (2007) ("the central question in a mootness problem is whether a change in the circumstances that prevailed at the beginning of the litigation has forestalled the prospect for meaningful, practical, or effective relief"). We conclude that the endorsed candidates' writ of error is moot. Given the Secretary's unchallenged decision to accept twelve of the thirteen nominations and print their names on the ballot for the 2018 election, there is no practical relief that we can afford them with respect to the trial court's decision. Accordingly, their claims are moot, and their writ of error is, therefore, nonjusticiable. See, e.g., Statewide Grievance Committee v. Burton , supra, 282 Conn. at 7, 917 A.2d 966 ("[J]usticiability comprises several related doctrines, namely, standing, ripeness, mootness and the political question doctrine.... Consequently, a court may have subject matter jurisdiction over certain types of controversies in general, but may not have jurisdiction in any given case because the issue is not justiciable." [Citations omitted; internal quotation marks omitted.] ). Harriman-Stites argues, however, that the writ of error is not moot with respect to her claims because of the Secretary's "confounding and inexplicable" decision to leave her off the ballot, despite the Secretary's assurance that she would abide by the trial court's decision in this case. Specifically, Harriman-Stites asked us to render judgment denying the writ of error and to direct the trial court to order the Secretary to comply with the trial court's order by putting her name on the ballot for the 106th assembly district. In responding to that argument, the endorsed candidates relied on, inter alia, River Dock & Pile, Inc. v. O & G Industries, Inc. , 219 Conn. 787, 595 A.2d 839 (1991), and East Windsor v. East Windsor Housing, Ltd., LLC , 150 Conn. App. 268, 92 A.3d 955 (2014), contending that we should refuse to reach this claim because "Harriman-Stites' raising of a claim for relief through an opposition to a writ of error is malapropos," and that her briefing of this issue is founded on Telesca's "untested, testimonial affidavit [which is] replete with hearsay." (Emphasis in original.) Given the numerous factual issues attendant to Harriman-Stites' improperly raised claims for relief, we decline to consider them in the first instance in connection with this writ of error. "A writ of error . is generally subject to the same procedural rules as direct appeals." State v. Abushaqra , 153 Conn. App. 282, 286 n.8, 100 A.3d 1014, cert. denied, 315 Conn. 906, 104 A.3d 757 (2014) ; see also Practice Book § 72-4 ("[e]xcept as otherwise provided by statute or rule, the prosecution and defense of a writ of error shall be in accordance with the rules for appeals"). Given Harriman-Stites' course of seeking this relief in her brief without filing a separate writ of error to seek affirmative relief with respect to the action or inaction of the trial court, we take guidance from the ample body of case law considering claims raised by appellees in briefs, without having first been raised in a cross appeal, seeking relief vis-à-vis the judgment of the trial court. As a general rule, "[i]f an appellee wishes to change the judgment in any way, the party must file a cross appeal." (Internal quotation marks omitted.) East Windsor v. East Windsor Housing, Ltd., LLC , supra, 150 Conn. App. at 270 n.1, 92 A.3d 955 ; see also River Dock & Pile, Inc. v. O & G Industries, Inc. , supra, 219 Conn. at 792 n.5, 595 A.2d 839 (declining to reach affirmative claims for relief raised by appellee because appellee failed to file cross appeal); Board of Police Commissioners v. White , 171 Conn. 553, 557, 370 A.2d 1070 (1976) (declining to reach appellees' claims that "the plaintiffs had waived any claim of illegality as to the collective bargaining agreement and that the court erred in overruling their plea in abatement addressed to the capacity of the plaintiffs to bring [the] action," because "[t]hey did not file an assignment of errors and a cross appeal and we do not consider the merits of these contentions"); Farmers & Mechanics Savings Bank v. First Federal Savings & Loan Assn. , 167 Conn. 294, 303 n.4, 355 A.2d 260 (1974) (declining to consider briefed issue concerning validity of restrictive covenants because, although appellees "raised this issue at the trial level, the trial court did not find it necessary to rule thereon," and appellee did not "file a cross appeal assigning error in the court's failure to treat this issue"); East Windsor v. East Windsor Housing, Ltd., LLC , supra, at 270 n.1, 92 A.3d 955 (refusing appellee's request "to direct the trial court to remove costs of seven title searches and seven filing fees from the fees awarded to the plaintiff" because of failure to file cross appeal). This rule is not, however, absolute, and the court may consider such a claim otherwise improperly raised in the appellee's brief in the absence of prejudice to the appellant. See Akin v. Norwalk , 163 Conn. 68, 70-71, 301 A.2d 258 (1972) ; Rizzo v. Price , 162 Conn. 504, 512-13, 294 A.2d 541 (1972) ; DiSesa v. Hickey , 160 Conn. 250, 262-63, 278 A.2d 785 (1971). We decline to reach this claim for affirmative relief, raised in the first instance in Harriman-Stites' brief. We agree with the endorsed candidates that this claim raises numerous issues of fact, particularly with respect to the feasibility of an order to put Harriman-Stites on the ballot given the timing of the election, that would have been more properly considered by a trial judge in the first instance. See Rizzo v. Price , supra, 162 Conn. at 513, 294 A.2d 541 (declining to review appellee's challenge, raised for first time in brief, to trial court's failure to make certain factual conclusions as "clearly prejudicial to the appellant"); see also Furs v. Superior Court , 298 Conn. 404, 412-13, 3 A.3d 912 (2010) (declining to reach state's claim in writ of error challenging contempt finding, which state did not raise as "an [alternative] ground for affirmance in a filing pursuant to Practice Book § 63-4 [a] [1], and did not designate . as such in its brief" because it depended on presumption that "trial court would have accepted the state's claim of an independent source of authority to grant use immunity only" or that plaintiff-in-error, "who claims that he refused to testify on the advice of counsel, would have refused to testify if he had been informed that the state had inherent authority to offer use immunity, which would be sufficient under the fifth amendment to compel his testimony and that this would not be violative of the statute" [footnote omitted] ); Gianetti v. Norwalk Hospital , 266 Conn. 544, 560, 833 A.2d 891 (2003) ("[o]rdinarily it is not the function of this court or the Appellate Court to make factual findings, but rather to decide whether the decision of the trial court was clearly erroneous in light of the evidence . in the whole record" [internal quotation marks omitted] ). Although we are sympathetic to the delays experienced by Harriman-Stites in obtaining a hearing before the trial court, we note that, beyond objecting to the caseflow requests filed by the plaintiffs and the endorsed candidates, she did not file any motions before that court seeking expedited review, including assignment to a different judge given Judge Peck's unavailability, or seek similar relief from this court under Practice Book § 60-2. Accordingly, we conclude that this unmeritorious request for relief does not save the writ of error from dismissal. The writ of error is dismissed. In this opinion the other justices concurred. These endorsed candidates are: Timothy D. Walczak for the 16th assembly district, Mary M. Fay for the 18th assembly district, Chris Forster for the 21st assembly district, Mike J. Hurley for the 28th assembly district, Lillian A. Tanski for the 31st assembly district, Linda J. Szynkowicz for the 33rd assembly district, Samuel Belsito, Jr., for the 53rd assembly district, Don E. Crouch for the 85th assembly district, Mitch Bolinsky for the 106th assembly district, Veasna Roeun for the 109th assembly district, Erin M. Domenech for the 110th assembly district, Michael S. Ferguson for the 138th assembly district, and Terrie E. Wood for the 141th assembly district. For the sake of simplicity, we hereinafter refer to these individuals, collectively, as the endorsed candidates. The plaintiffs brought this writ of error to this court directly pursuant to General Statutes § 51-199 (b) (10). On October 3, 2018, we granted Harriman-Stites' motion to be designated as a party in this writ of error. A more detailed overview of the facts and procedural history is set forth in the decision of this court governing the direct appeal. See Independent Party of CT-State Central v. Merrill , supra, 330 Conn. at 681, 200 A.3d 1118. We note that portions of our factual recitation are based on factual representations by the parties with respect to events that took place subsequent to the issuance of the trial court's decision, which we may consider in determining whether those events have rendered this writ of error moot. See, e.g., Private Healthcare Systems, Inc. v. Torres , 278 Conn. 291, 302, 898 A.2d 768 (2006). We also note that the endorsed candidates ask us to strike or disregard certain portions of the recitation of facts in Harriman-Stites' brief and supporting affidavit as improperly submitted material that is based on hearsay. We emphasize that we consider this material, and other uncontested factual representations about events that took place subsequent to the trial court's decision in the present case, solely as a representation of counsel made for background purposes, particularly given the expedited nature of this proceeding. For the sake of simplicity, we hereinafter refer to Telesca and Frank, collectively, as the defendants. Unless otherwise noted, all references herein to the trial court are to Judge Peck. 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 writ of error, 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 [via their special defense] 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, was only "a motion for a temporary order of mandamus, and . was [subsequently] withdrawn." We address and decide these issues in the companion opinion. See Independent Party of CT-State Central v. Merrill , supra, 330 Conn. at 681, 200 A.3d 1118. Also on September 7, 2018, the plaintiffs appealed from the judgment of the trial court to the Appellate Court, which was later transferred to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1, and then expedited and argued together with this writ of error. See Independent Party of CT-State Central v. Merrill , supra, 330 Conn. at 685 n.2, 200 A.3d 1118. Practice Book § 72-3A provides in relevant part: "Except where otherwise provided by statute or other law, proceedings to enforce or carry out the judgment or order that is challenged in the writ of error shall be automatically stayed for twenty days and if the writ is timely allowed and signed, the stay shall continue until the return date set forth in the writ. If a writ of error is timely filed, such proceedings shall be stayed until the final determination of the writ.... The automatic stay only applies to proceedings to enforce or carry out the judgment or order that is being challenged in the writ of error and does not stay any other trial court proceedings. There shall be no automatic stay if a writ of error is filed challenging an order of civil contempt, summary criminal contempt or any decisions under Section 61-11 (b) and (c) in accordance with the rules for appeals. "Any aggrieved nonparty plaintiff in error or defendant in error or a party may file a motion to terminate or impose a stay in matters covered by this section, either before or after the judgment or order is rendered, based upon the existence of a writ of error. Such a motion shall be filed in accordance with the procedures in Section 61-11 (d) and (e) or Section 61-12. Whether acting on a motion of a party, a nonparty plaintiff in error or defendant in error or sua sponte, the judge shall hold a hearing prior to terminating the automatic stay...." The defendants agree with the endorsed candidates' mootness arguments in this writ of error because "it appears that the Secretary did not apply the Superior Court's order that she accept only nominations made by the [Waterbury faction] and that [the Secretary] printed ballots as [the endorsed candidates] hoped she would." The defendants posit further that, "[a]ssuming arguendo that the [endorsed candidates] could bring a writ of error, they claim standing as candidates endorsed for 2018-and so they have the relief they seek." Similarly, the Secretary filed a brief representing her "understanding that the 2010 bylaws govern statewide offices but that the 2006 bylaws can also be applied to the extent they do not conflict with the 2010 bylaws." Acknowledging her neutral position with respect to the parties' factional dispute, the Secretary urged us not to permit this litigation to create a costly disruption to the 2018 general election, in which absentee voting had already commenced; the Secretary did not, however, address specifically whether the writ of error is moot. Although the defendants "recognize[d] that it is too late to correct ballots at this point, at least on a broad scale basis," they observed in a footnote that "[w]hether relief could be granted to [Harriman-Stites] for the [106th assembly district] endorsement, seems to present a narrower question." On October 18, 2018, Harriman-Stites moved to supplement her appendix with the affidavit of LeReine Frampton, the Democratic Registrar of Voters in Newtown, to provide guidance to this court on the most current status of the ballots for the 106th assembly district. We denied that motion prior to oral argument on October 19, 2018. We note that the endorsed candidates do not contend that we lack subject matter jurisdiction to consider Harriman-Stites' claims as a result of her failure to file her own writ of error seeking relief vis-à-vis the judgment of the trial court. Similarly, our independent research does not reveal any authority to support that proposition, insofar as jurisdiction existed in the first instance over the endorsed candidates' writ of error, to which her claim for relief apparently attaches. See, e.g., State v. Skipwith , 326 Conn. 512, 526 n.18, 165 A.3d 1211 (2017) (discussing codification of common-law requirements for standing to file writ of error as "codified in Practice Book § 72-1 [a]"). Nevertheless, a rescript ordering dismissal with respect to the writ of error as a whole remains appropriate, as that rescript has been used interchangeably to dispose of writs of error that lack merit or are jurisdictionally defective. See, e.g., id., at 516 n.5, 165 A.3d 1211 (citing cases).

12487764

John R. Price, et al. v. Independent Party of CT-State Central, et al.

Price v. Indep. Party of CT

2016-09-29

SC 19769

1032

1044

147 A.3d 1032

147

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

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

Fastcase

John R. Price, et al. v. Independent Party of CT-State Central, et al.

John R. Price, et al. v. Independent Party of CT-State Central, et al. SC 19769 Supreme Court of Connecticut. Heard September 29, 2016 Officially released September 29, 2016 Kyle R. Barrett and Joseph L. Rini, for the named plaintiff. Thomas P. Willcutts and Joseph L. Rini, for the plaintiff Michael Telesca. Bryan Thomas Cafferelli and Matthew Joseph Grimes, Jr., for the named defendant et al. Maura B. Murphy-Osborne, assistant attorney general, for the defendant Denise Merrill, secretary of the state. Benjamin S. Proto, Jr., for the defendant Daniel Carter. Michael Duff, self-represented. September 29, 2016, the date that the order of dismissal was released, is the operative date for all substantive and procedural purposes.

5909

36997

PALMER, J. This case involves a dispute between two factions of this state's Independent Party. The question before the court is whether it has original jurisdiction, pursuant to General Statutes § 9-323, to remedy certain alleged violations of party procedure and election law by caucus officials of one of those factions, the named defendant, the Independent Party of CT-State Central, pertaining to its nomination of the defendant Daniel Carter for the United States Senate. After an expedited hearing on September 29, 2016, the court concluded that the plaintiffs, John R. Price, the nominee for the United States Senate of the other faction, the Independent Party of Connecticut, and Michael Telesca, an elector and registered member of the Independent Party of Connecticut, had failed to establish that the court had jurisdiction to entertain their claims under § 9-323. The court therefore granted the motion to dismiss filed by the Independent Party of CT-State Central and Carter. This written opinion followed. I BACKGROUND The record reveals the following undisputed factual and procedural history. In Connecticut, the Independent Party is composed of two factions: the Independent Party of Connecticut, which is based in the city of Waterbury, and the Independent Party of CT-State Central, which is based in the city of Danbury. After proper notice, each faction hosted separate party caucuses in late August, 2016, following which two different nominees for the United States Senate were certified to the secretary of the state: the Independent Party of CT-State Central nominated Carter, and the Independent Party of Connecticut nominated Price. On September 2, 2016, after receiving the competing nominations, the secretary of the state notified the two factions that, in accordance with existing policy and General Statutes § 9-250, neither name would be placed on the ballot under the Independent Party line unless one nominee withdrew. Approximately two weeks later, on September 13, an action was filed in the Superior Court in the judicial district of Hartford, seeking to resolve the ongoing dispute over which faction properly controlled the Independent Party. Independent Party of CT-State Central v. Merrill , Superior Court, judicial district of Hartford, Docket No. HHD-CV-16-6071180-S (filed September 13, 2016). Following the filing of a motion to dismiss the claims relating specifically to the United States Senate race for lack of subject matter jurisdiction, both Carter and Price withdrew from the case. On September 23, the plaintiffs filed the present action in the Supreme Court, alleging various violations of party rules and election statutes during the caucus of the Independent Party of CT-State Central, and seeking relief under § 9-323. On September 26, the plaintiffs sought a judgment declaring that the caucus of the Independent Party of CT-State Central was invalid. The plaintiff also filed a motion for a permanent injunction compelling, inter alia, Carter to withdraw his nomination and the defendant Denise Merrill, the secretary of the state, to place Price's name on the Independent Party line on the November, 2016 ballot. Significantly, the plaintiffs did not allege any error on the part of the secretary of the state. On September 27, the secretary of the state filed a memorandum in opposition to the plaintiffs' motion for injunctive relief, and, on September 28, the Independent Party of CT-State Central and Carter filed a motion to dismiss on the ground that the court lacked jurisdiction because (1) a "caucus" is not an " 'election' " for purposes of § 9-323 ; and (2) caucus administrators are not " 'election officials' " under the statute, as the plaintiffs alleged. The secretary of the state likewise argued that the plaintiffs could not prevail because they were not "aggrieved by any ruling of the secretary [of the state]," and, further, because their claims were "barred by the doctrine of laches." Because § 9-323 provides that a case filed thereunder shall be resolved expeditiously by a justice of the Supreme Court, the court conducted a hearing on September 29, 2016. After the hearing, the court granted the defendants' motion to dismiss. The court will review the jurisdictional claims first. II JURISDICTION UNDER § 9-323 For this court to exercise original jurisdiction under § 9-323, a candidate for the United States Senate or an elector must claim that he or she is "aggrieved by any ruling of any election official in connection with any election for . a senator in Congress ." Furthermore, upon bringing the matter before the court, the plaintiff must "set out the claimed errors of such election official ." General Statutes § 9-323 ; cf. Bortner v. Woodbridge , 250 Conn. 241, 259, 736 A.2d 104 (1999) ("as a predicate for the ordering of a new election under [General Statutes] § 9-328, there must be either [1] an error or errors 'in the rulings of' an election official, or [2] a 'mistake in the count of the votes' "). Over the past forty years, this court has from time to time considered the meaning of the phrase "rulings of an election official" as it is used in several closely related statutes. See, e.g., Caruso v. Bridgeport , 285 Conn. 618, 639, 941 A.2d 266 (2008) (construing General Statutes § 9-329a [a], relating to " 'ruling[s] of an election official in connection with any primary' "); Bortner v. Woodbridge , supra, 250 Conn. at 244 n.3, 736 A.2d 104 (construing § 9-328, concerning aggrievement by " 'any ruling of any election official in connection with an election for any municipal office or a primary for justice of the peace' "); Scheyd v. Bezrucik , 205 Conn. 495, 498 n.1, 535 A.2d 793 (1987) (same); Wrinn v. Dunleavy , 186 Conn. 125, 127 n.2, 440 A.2d 261 (1982) (construing § 9-329a [a], relating to "ruling[s] of an election official in connection with any primary"). Most recently, in Wrotnowski v. Bysiewicz , 289 Conn. 522, 958 A.2d 709 (2008), Chief Justice Rogers observed that "[this court's] analysis of the phrase 'ruling of any election official' in Scheyd, Bortner and Caruso is equally applicable to § 9-323." Id. at 528, 958 A.2d 709. Accordingly, under § 9-323, "a ruling of an election official must involve some act or conduct by the official that (1) decides a question presented to the official, or (2) interprets some statute, regulation or other authoritative legal requirement, applicable to the election process." Bortner v. Woodbridge , supra, 250 Conn. at 268, 736 A.2d 104 ; see also Wrotnowski v. Bysiewicz , supra, 289 Conn. at 526-27, 958 A.2d 709. Such rulings "include conduct that comes within the scope of a mandatory statute governing the election process, even if the election official has not issued a ruling in any formal sense." (Emphasis omitted; internal quotation marks omitted.) Wrotnowski v. Bysiewicz , supra, at 527, 958 A.2d 709, quoting Caruso v. Bridgeport , supra, 285 Conn. at 647, 941 A.2d 266. Nonetheless, the court will not find a party aggrieved by a ruling when the ruling is made "in conformity with the law." (Internal quotation marks omitted.) Wrotnowski v. Bysiewicz , supra, at 527, 958 A.2d 709, quoting Scheyd v. Bezrucik , supra, 205 Conn. at 503, 535 A.2d 793. Unlike the plaintiff in Wrotnowski, the plaintiffs in the present case do not mount a constitutional challenge to the actions of the secretary of the state. See Wrotnowski v. Bysiewicz , supra, 289 Conn. at 528, 958 A.2d 709 (plaintiff complained "only that the existing election laws governing presidential elections are not adequate to ensure compliance with . the federal constitution"). Indeed, they make no claim of any incorrect ruling by the secretary of the state. Instead, they contend that certain caucus officials of the Independent Party of CT-State Central failed to adhere to the requirements of General Statutes § 9-372 and 9-452, which govern nominations by minor parties for elective office. Specifically, the plaintiffs claim that various officials were registered as Republicans, not Independent Party members, and that the party affiliations and residences of caucus attendees were never verified. Such actions, were they to constitute breaches of mandatory statutory requirements, might well constitute "rulings" under the broad standard drawn by this court in Caruso. See Caruso v. Bridgeport , supra, 285 Conn. at 647, 941 A.2d 266 ("[w]hen an election statute mandates certain procedures, and the election official has failed to apply or to follow those procedures, such conduct implicitly constitutes an incorrect interpretation of the requirements of the statute and, therefore, is a ruling"). The court declines to decide this issue, however, because the alleged statutory violations have not been identified with any specificity and because the case may be resolved more readily by asking a different question: whether the caucus officials should be considered "election official[s]" for the purposes of § 9-323 or something else entirely. Unlike the question of what constitutes a "ruling," this court has never had occasion to consider the meaning of "election official." Nor is that term clearly defined by statute. Rather than creating a normative definition, the legislature has chosen to list positions that qualify as election officials. These positions include "moderator[s]," "official checkers," "registrars of voters," "assistant registrars of voters," "appointed challengers," "voting tabulator tenders," and "ballot clerks," as well as "[h]ead moderators, central counting moderators and absentee ballot counters appointed pursuant to law ." General Statutes § 9-258 (a) ; see also Regs., Conn. State Agencies § 9-242a-6 (adding "demonstrators"). This court's cases have assumed that the term "election official" applies to the secretary of the state; Butts v. Bysiewicz , 298 Conn. 665, 676, 5 A.3d 932 (2010) ; municipal town clerks and selectmen; Miller v. Schaffer , 164 Conn. 8, 11, 320 A.2d 1 (1972) ; and "ballot caller[s]" and "talliers ." In re Election for Second Congressional District , 231 Conn. 602, 618, 653 A.2d 79 (1994). In the present case, the plaintiffs have not alleged that the officials at the caucus of the Independent Party of CT-State Central were appointed to any of these positions. They claim only that caucus officials perform a function analogous to those of the election officials listed by statute and should therefore be treated similarly. Thus, the precise question presented is whether the term "election official" in § 9-323 is broad enough to encompass those officials responsible for administering a minor party caucus. For the following reasons, the court concludes that it is not. To ascertain the meaning of "election official" within the context of § 9-323, it is appropriate to look to established principles of statutory construction. "When construing a statute, [the court's] fundamental objective is to ascertain and give effect to the apparent intent of the legislature.... In other words, [the court] seek[s] 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 [the court] 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." (Footnote omitted; internal quotation marks omitted.) Caruso v. Bridgeport , supra, 285 Conn. at 638-39, 941 A.2d 266. "The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation." (Internal quotation marks omitted.) State v. Orr , 291 Conn. 642, 651, 969 A.2d 750 (2009). First, although the term "election official" is not expressly defined by statute, the term "election" is statutorily defined as "any electors' meeting at which the electors choose public officials by use of voting tabulators or by paper ballots ." General Statutes § 9-1 (d). The Independent Party of CT-State Central and Carter contend that the caucus of the Independent Party of CT-State Central cannot be considered an "election" because its function was not to choose public officials but merely to nominate candidates for public office. This argument has persuasive force and counsels against including caucus officials within the scope of § 9-323. Second, to the extent that the meaning of the term "election official" can be discerned by reference to statutory provisions and case law, as previously explained, it does not include caucus officials for minor parties. Furthermore, whereas it might be appropriate to treat as election officials those other officials who share similar functions , such treatment is far less appropriate when the statutes also articulate specific qualifications for election officials. The General Statutes prescribe at least two such qualifications: (1) election officials must be trained; see General Statutes § 9-249 ; and (2) "[a]ll election officials shall be sworn to the faithful performance of their duties ." General Statutes § 9-231. Caucus officials are not required to swear an oath or undergo training. This is compelling, if not dispositive, evidence of the legislature's intent to exclude "ruling[s]" by caucus officials from the purview of § 9-323. Third, narrowly construing the term "election official" accords with the broader statutory framework for conducting nominations. A closer inspection of that framework reveals that election officials and caucus officials not only have different qualifications but also serve different functions. In this state, major parties may be required to hold primaries to select nominees for state office when such nominations are contested. See General Statutes § 9-415 (a). Much like elections, such primaries are carefully regulated by the state. See, e.g., General Statutes § 9-381a ("[e]xcept as otherwise provided by statute, the provisions of the general statutes concerning procedures relating to regular elections shall apply as nearly as may be . to primaries held under the provisions of this chapter"); see also General Statutes § 9-381 (applying provisions of General Statutes § 9-382 through 9-450, which govern major parties, to "the nomination by a major party of any candidate for an elective office"). Indeed, the registrar of voters is charged with appointing and training "primary officials," such as moderators, checkers, challengers, ballot clerks, voting tabulator tenders, and assistant registrars, to oversee the operation of the primary elections. General Statutes § 9-436 (c) and (d). In contrast, minor parties are left largely to their own devices during the nomination process. The procedure by which a minor party endorses a nominee is not governed by statute; instead, it is "prescribed in the rules of such party ." General Statutes § 9-451. Furthermore, such limited filings and notice as are required by statute are to be made by "the presiding officer of the committee, meeting or other authority making such nomination ." General Statutes § 9-452 ; see also General Statutes § 9-452a ("presiding officer" shall give written notice of party meetings). Insofar as listed election officials, such as registrars of voters, are involved, they are merely required to "promptly verify and correct the names on [the] . list [of nominees]" filed by the party. General Statutes § 9-452. Thus, whereas elections and primaries are conducted by trained officials appointed by the state and municipalities, according to rules prescribed by statute, party caucuses of the type involved in the present case are structured and conducted almost exclusively by party operatives. In light of the significant disparity between the two procedures, it is unlikely that the legislature intended the term "election official" in § 9-323 to include those individuals who administer party caucuses. As a practical matter, this makes sense. Election officials are charged with certain, narrowly defined responsibilities. Their "ruling[s]," for purposes of § 9-323, are therefore confined to a relatively discrete set of actions involving the operation of the electoral process. Insofar as they are responsible for making rulings pertaining to that process, that function is intentionally nonpartisan. In contrast, were the court to accept the plaintiffs' argument, a host of decisions involving party power and party procedure would be subject to expedited review by the court. As the court has observed, however, statutes like § 9-323 "[authorize] the one unelected branch of government, the judiciary, to dismantle the basic building block of the democratic process, an election. Thus, [t]he delicacy of judicial intrusion into the electoral process . strongly suggests caution in undertaking such an intrusion." (Citation omitted; internal quotation marks omitted.) Bortner v. Woodbridge , supra, 250 Conn. at 254, 736 A.2d 104 ; cf. Reform Party of Connecticut v. Bysiewicz , 254 Conn. 789, 796, 760 A.2d 1257 (2000) ( "[q]uestions . concerning the make-up of the convention, the resolution of challenges to delegates and procedures of the convention are political questions left for the party to resolve"). Likewise, it is unlikely that the legislature intended for § 9-323 to embroil courts in the minutia of procedures that it commended explicitly to the good judgment of the political parties themselves or in the political decisions made by party operatives on behalf of the party. Nevertheless, the court recognizes that the judiciary has a role to play in promoting fair play even within the nomination process. See Butts v. Bysiewicz , supra, 298 Conn. at 674, 5 A.3d 932 ("[c]ommon sense, as well as constitutional law, compels the conclusion that government must play an active role in structuring elections; as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes" [internal quotation marks omitted] ). Thus, rather than foreclosing, or even discouraging, adjudication of disputes arising during that broader electoral process, this decision should be read narrowly, as barring only one avenue of relief for the allegedly unlawful or improper actions of caucus officials, that is, by motion to a justice of the Supreme Court under § 9-323. In sum, the court concludes that officials administering minor party caucuses are not "election official[s]" for purposes of § 9-323. Thus, the plaintiffs are not aggrieved under § 9-323 by the actions of those officials. III LACHES The secretary of the state has also raised as a defense the doctrine of laches in connection with the plaintiffs' motion for injunctive relief. The court will address the issue briefly in the hope that doing so will encourage parties involved in future election disputes to pursue their claims with due urgency. This court has held that (1) "[l]aches consists of an inexcusable delay [that unduly] prejudices the defendant," and (2) "[t]he burden is on the party alleging laches to establish that defense." (Internal quotation marks omitted.) Cummings v. Tripp , 204 Conn. 67, 88, 527 A.2d 230 (1987). Although the defense has been raised in this court on several occasions in connection with election disputes, it has not so far been discussed in any depth. See, e.g., Wrotnowski v. Bysiewicz , supra, 289 Conn. at 526, 958 A.2d 709. In the absence of controlling precedent, the lower courts of this state have occasionally been called on to navigate such claims on their own. See Gasparino v. Bysiewicz , Superior Court, judicial district of Hartford, Docket No. CV-04-4002077-S (September 13, 2004) (37 Conn. L. Rptr. 879, 881 and n.6, 2004 WL 2222913 ) (court's concern over delay of two months in filing of request for injunction to add name to ballot was insufficient to bar such request); Plymouth v. Church - Dlugokenski , 48 Conn.Supp. 481, 487-92, 852 A.2d 882 (2003) (challenge to validity of town referendum was barred by doctrine of laches when such challenge was raised approximately six months after referendum); Sherman v. Kemish , 29 Conn.Supp. 19, 200, 279 A.2d 571 (1971) (doctrine of laches was inapplicable in action seeking local recall election when defendant was not unduly prejudiced); Fry v. Close , 8 Conn.Supp. 390, 393 (1940) (delay of two weeks in challenging ballot listing was sufficient to sustain laches defense). In the present case, the facts pertinent to the claim of laches are undisputed. First, the particular controversy in this case-over a United States Senate line on the ballot-is an outgrowth of a dispute over control of the this state's Independent Party that has been ongoing for at least several years. See Independent Party of CT v. Dietter , Superior Court, judicial district of Waterbury, Docket No. CV-12-5016387-S, 2012 WL 4902807 (September 28, 2012) ("[t]he parties to this action are competing officers and nominees of the Independent Party of Connecticut, seeking the placement of party endorsed nominees on the ballot for the general election"). Second, the caucus at issue, that is, the caucus of the Independent Party of CT-State Central, occurred on August 23, 2016, and the Senate nomination of that faction of the Independent Party was filed with the secretary of the state by August 29, 2016. Thus, even if the plaintiffs could not have anticipated the alleged procedural shortcomings of the caucus, they were certainly aware by late August, 2016, that specific and immediate action needed to be taken. In fact, in light of the history and ongoing nature of the dispute between the two factions, the plaintiffs knew or should have known much earlier that that dispute would need to be addressed before this election cycle. Following the caucuses, the secretary of the state sent notice to both candidates that neither name would be placed on the ballot. From that date, September 2, 2016, until September 13, 2016, no action was taken. Not until September 23 did the plaintiffs initiate the present action under § 9-323. The electoral machinery of the state has been far less indecisive. By the time this case was heard on September 29, 2016, overseas and military ballots had already been issued. Printing of absentee ballots was underway, and programming of voting machines was imminent. At the hearing, the secretary of the state confirmed that, in the event of reprinting, absentee ballots would be delayed to a "certainty," in violation of the requirements of General Statutes § 9-140 (f), and perhaps in violation of article sixth, § 7, of the Connecticut constitution, as implemented by § 9-140 (f). Costs associated with reprinting and reprogramming would run at least $218,000 and would be borne by the cities and towns affected. Given these considerations, the court finds that the secretary of the state has met her burden of establishing prejudicial delay. See, e.g., Fishman v. Schaffer , 429 U.S. 1325, 1330, 97 S.Ct. 14, 50 L.Ed.2d 56 (1976) (citing printing of Presidential, overseas and absentee ballots as "factors militating against the extraordinary relief" of injunction placing candidate on ballot). The court also finds that the plaintiffs' delay is "inexcusable ." (Internal quotation marks omitted.) Cummings v. Tripp , supra, 204 Conn. at 88, 527 A.2d 230. Indeed, given its proximity to the election, the delay of nearly two weeks between the letter from the secretary of the state and the filing of any court action might be considered inexcusable. Other courts have found delays nearly as short to be inexcusable. See, e.g., Kay v. Austin , 621 F.2d 809, 810, 813 (6th Cir. 1980) (equitable relief was barred by doctrine of laches when candidate filed action eleven days after discovering that his name was not on ballot). But this finding need not rest on those two weeks, or even on the time between the September 13, 2016 filing of the action in the Superior Court and the September 23 filing with this court. Instead, the court finds that the failure to address ongoing questions of party control until mid-September-only two weeks before ballot preparation was scheduled to begin-constitutes inexcusable delay. The courts need not shoulder the burden of resolving internecine conflicts on a truncated timeline simply because the parties have inexplicably failed to press their claims at an earlier date. Thus, even if the plaintiffs' claims fell within the purview of § 9-323, the doctrine of laches would operate as an independent and adequate ground to dismiss the plaintiffs' action. Although it may not be possible to articulate a precise timeline according to which disputes must be brought before the court under § 9-323, it should be clear that parties seeking preelection resolution of such conflicts must act with all due haste. The plaintiffs' motion for a permanent injunction is denied and the motion to dismiss filed by the defendants the Independent Party of CT-State Central and Carter is granted. General Statutes § 9-323 provides in relevant part: "Any elector or candidate who claims that he is aggrieved by any ruling of any election official in connection with any election for presidential electors and for a senator in Congress and for representative in Congress or any of them, held in his town, or that there was a mistake in the count of the votes cast at such election for candidates for such electors, senator in Congress and representative in Congress, or any of them, at any voting district in his town, or any candidate for such an office who claims that he is aggrieved by a violation of any provision of section 9-355, 9-357 to 9-361, inclusive, 9-364, 9-364a or 9-365 in the casting of absentee ballots at such election, may bring his complaint to any judge of the Supreme Court, in which he shall set out the claimed errors of such election official, the claimed errors in the count or the claimed violations of said sections.... If such complaint is made prior to such election, such judge shall proceed expeditiously to render judgment on the complaint ." John L. Dietter, Donna L. LaFrance, and Roger Palanzo, all of whom are alleged to be officers of the Independent Party of CT-State Central, Michael Duff, who served as the caucus chairman of the Independent Party of CT-State Central, Daniel Carter, the nominee of the Independent Party of CT-State Central for United States Senate, and Denise Merrill, the secretary of the state, also have been named as defendants in the present action. Carter is also the nominee for the Republican Party. General Statutes § 9-250, which details various aspects of ballot preparation, provides in relevant part: "No column, under the name of any political party or independent organization, shall be printed on any official ballot, which contains more candidates for any office than the number for which an elector may vote for that office." The complaint sets forth the following allegations: "The August 23, 2016 caucus of the Independent Party of CT-State Central violated the . General Statutes and the filed rules applicable to the caucus in the following ways: "A. The caucus was called to order by Mark Boughton, the mayor of Danbury, a registered Republican voter, who could not by virtue of his Republican registration have . presided over the caucus for [the] . [Independent Party of CT-State Central] as he was not a registered Independent voter, in violation of [General Statutes §] 9-372 and 9-452. "B. Roger Polanzo, who was claimed to be the secretary [and] deputy treasurer of the Independent Party of CT-State Central and who actively participated as an election official for the caucus, is listed with the secretary of the state as a member of the Republican party and therefore could not be involved in issuing notices, presenting a slate of over 100 nominations for offices in multiple districts throughout the state and in Congress or filing papers with the [secretary of the state] as he is not a registered member of the Independent Party, all in violation of [§§] 9-372 and 9-452. "C. The nominations were done as a slate for all offices throughout the state and for congressional offices allowing caucus attendees to vote for nominations for persons running in districts other than the districts in which they resided, in violation of . [§] 9-372. "D. At no time during the caucus were any of the persons in attendance checked to verify that the attendees were registered members of the Independent Party or otherwise authorized to vote in the caucus, in violation of [§] 9-372." In their complaint, the plaintiffs also appear to request a writ of mandamus ordering the secretary of the state to place Price on the ballot. The plaintiffs cannot satisfy the demanding requirements of their claim for a writ of mandamus for the same reasons that they cannot prevail on their claims for declaratory and injunctive relief. See, e.g., Miles v. Foley , 253 Conn. 381, 391, 752 A.2d 503 (2000) (writ of mandamus will be granted "only [when] the plaintiff has a clear legal right to have done that which he seeks," and "[t]he writ is proper only when [1] the law imposes on the party against whom the writ would run a duty the performance of which is mandatory and not discretionary; [2] the party applying for the writ has a clear legal right to have the duty performed; and [3] there is no other specific adequate remedy" [internal quotation marks omitted] ). Those reasons are set forth hereinafter. The plaintiffs claim that they are aggrieved by, inter alia, "rulings of election [officials] in connection with the election of a senator in Congress" and "by the counting of the ballots" from an allegedly invalid caucus. Although the plaintiffs question the validity of that caucus vote, they do not claim that there was any "mistake in the count of the votes" under § 9-323. Thus, only the first prong of the statute is at issue in the present case. " 'Minor party,' " as defined by § 9-372 (6), "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 ." " 'Major party,' " as defined by § 9-372 (5), "means (A) a political party or organization whose candidate for Governor at the last-preceding election for Governor received, under the designation of that political party or organization, at least twenty per cent of the whole number of votes cast for all candidates for Governor, or (B) a political party having, at the last-preceding election for Governor, a number of enrolled members on the active registry list equal to at least twenty per cent of the total number of enrolled members of all political parties on the active registry list in the state ." The plaintiffs claim that the defendants violated § 9-372 and 9-452, but they fail to identify the specific provisions that prohibit cross enrollment or mandate verification of attendee affiliation. Under the circumstances, there is no reason for the court to speculate. Some other states have articulated a specific, normative definition. See, e.g., Cal. Elec. Code § 320 (Deering Supp. 2016) (" 'Elections official' means any of the following: [a] A clerk or any person who is charged with the duty of conducting an election. [b] A county clerk, city clerk, registrar of voters, or elections supervisor having jurisdiction over elections within any county, city, or district within the state."); Ark. Admin. Code 108.00.2-200 (a) ("[e]lection [o]fficial-a person who is a member of the county board of election commissioners, a person who performs election coordinator duties, a person who is a poll worker designated by a county board of election commissioners to be an election clerk, election judge, or election sheriff, or a deputy county clerk or a person assigned by a county clerk to conduct early voting"); W. Va. Code R. § 153-26-2.1 (" '[e]lection official' means any office holder, government employee or individual who has been delegated responsibilities or duties in the conduct or administration of elections by the provisions of Chapter 3 or any other provision of the West Virginia Code"); but see Mont. Admin. R. 44.3.2202 (1) (" '[e]lection official' means an election administrator, election deputy, or election judge"). The plaintiffs allege that the defendants Donna L. LaFrance, Roger Polanzo, and Michael Duff "acted as . election official[s] ." "Caucus" is separately defined as "any meeting . of the enrolled members of a political party within a municipality or political subdivision thereof for the purpose of selecting party-endorsed candidates for a primary to be held by such party or for the purpose of transacting other business of such party ." General Statutes § 9-372 (1). A "primary" is "a meeting of the enrolled members of a political party and, when applicable . unaffiliated electors, held during consecutive hours at which such members or electors may, without assembling at the same hour, vote by secret ballot for candidates for nomination to office or for town committee members ." General Statutes § 9-372 (11). General Statutes § 9-415 (a) provides: "If a candidacy for nomination by a political party to a state office is filed by or on behalf of any person other than a party-endorsed candidate within the time specified in subsection (a) of section 9-400 and in conformity with the provisions of section 9-400, a primary shall be held in each municipality of the state to determine the nominee of such party for such office, except as provided in section 9-416a." Ordinarily, a court does not address the merits of a claim once it has determined that it lacks subject matter jurisdiction. See, e.g., Sousa v. Sousa , 322 Conn. 757, 770, 143 A.3d 578 (2016) (court without subject matter jurisdiction lacks discretion to consider merits of claim or claims asserted). Given the relative sparsity of precedent under § 9-323, however, the court will address the laches claim asserted by the secretary of the state to underscore the need for the speedy filing of challenges under that provision. See Wrotnowski v. Bysiewicz , supra, 289 Conn. at 528-29 and n.8, 958 A.2d 709 (although concluding that it lacked subject matter jurisdiction over case because plaintiff did not have standing under § 9-323, court observed that plaintiff could not prevail on merits of his claim that he was entitled to writ of mandamus, even if he had standing). On September 13, 2016, the only action taken in connection with the present case was the filing of an action in the Superior Court pertaining to, inter alia, the subject matter of the present case, namely, the placement on the ballot of the Independent Party's candidate for the United States Senate. General Statutes § 9-140 (f) provides in relevant part: "Absentee voting sets shall be issued beginning on the thirty-first day before an election ." Article sixth, § 7, of the Connecticut constitution provides: "The general assembly may provide by law for voting in the choice of any officer to be elected or upon any question to be voted on at an election by qualified voters of the state who are unable to appear at the polling place on the day of election because of absence from the city or town of which they are inhabitants or because of sickness, or physical disability or because the tenets of their religion forbid secular activity." Even if the parties before the court do not include the full leadership cohort of the Waterbury and Danbury factions of the Independent Party, the present claim is inextricable from the underlying dispute. The factions' delays must therefore be imputed to their nominees.

12487767

State of Connecticut v. Erick L.

State v. Erick L.

2016-09-20

AC 36948

1053

1075

147 A.3d 1053

147

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

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

Fastcase

State of Connecticut v. Erick L.

State of Connecticut v. Erick L. AC 36948 Appellate Court of Connecticut. Argued February 3, 2016 Officially released September 20, 2016 Adele V. Patterson, senior assistant public defender, for the appellant (defendant). Denise B. Smoker, senior assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Elena Palermo, assistant state's attorney, for the appellee (state). Gruendel, Alvord and Prescott, 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 defendant's full name or to identify the victim or others through whom the victim's identity may be ascertained. See General Statutes § 54-86e. The listing of judges reflects their seniority status on this court as of the date of oral argument.

10221

61511

GRUENDEL, J. The defendant, Erick L., appeals from the judgment of conviction, rendered after a jury trial, of two counts of sexual assault in the fourth degree in violation of General Statutes § 53a-73a(a)(1)(A), and two counts of risk of injury to a child in violation of General Statutes § 53-21(a)(2). On appeal, the defendant raises two claims: (1) the trial court violated his rights under the sixth amendment to confront the witnesses against him and to present a defense by holding that the rape shield statute, General Statutes § 54-86f, prohibited him from introducing evidence of the sexual nature of the victim's prior relationship with her boyfriend; and (2) the court violated the defendant's right to trial by an impartial jury under the sixth amendment when it seated a juror who believed that children were less likely to lie than adults. We affirm the judgment of the trial court. The jury reasonably could have found the following facts after the conclusion of the evidence. The victim was born in 1997; the defendant was born in 1984. In 2004, the victim's mother met and began dating the defendant. He eventually moved in with the victim's mother, and they lived together at various addresses between then and 2010. Initially, the victim got along well with the defendant, but, beginning in 2007, he began touching the victim inappropriately. One day, in the kitchen of the apartment where they were then living, he grabbed the victim's buttocks. The victim told her mother about the incident, and her mother asked the defendant if this was true. The defendant denied it, and the victim's mother did not pursue the matter further. The defendant confronted the victim once she was alone in her room and angrily demanded to know why she was lying to her mother. Although the victim knew that what the defendant had done was wrong, she felt as if her mother did not believe her, and so she later told her mother that maybe she had "take[n] it the wrong way." The family moved to a new apartment at the end of 2008. A few months after the move, the defendant resumed touching the victim inappropriately. The abuse escalated, with the defendant touching the victim's buttocks, breasts, and vagina. He forced the victim to touch his penis, on one occasion ejaculating on her hand. He told the victim that one day he was going to rape her. At the time, the victim was eleven years old. The victim began cutting her legs with her fingernails and taking pills to cope with the abuse. She grew sullen and would lash out at people. Although the victim had a good relationship with her mother, she did not discuss the abuse with her mother because her mother had not believed her the first time, and she did not think her mother would believe her the second time. Eventually, in November, 2009, the victim-then twelve years old-told her boyfriend that the defendant was touching her. Her boyfriend told his mother, who did not do anything. Her boyfriend also stopped asking the defendant for rides home when he visited the victim, so that the victim would not have to be alone with the defendant on the ride back. Finally, in January, 2010, the victim told her grandmother about the defendant touching her. She had called her grandmother because she was angry at the defendant for taking a space heater out of her room during the winter while the apartment's heating system was broken. She testified that at the time she was frustrated and angry, and had been holding those emotions inside for almost one year. During the phone call to her grandmother, "[i]t just all came out," and she told her grandmother about how the defendant had been touching her. The grandmother drove over and picked the victim up the next day, and the victim's cousin had her write down in a notebook what the defendant had done to her. The grandmother then called the victim's mother over to talk about it with several other family members and friends there for support. They called the police. The defendant moved out that day. He was later arrested and charged with one count of attempt to commit sexual assault in the first degree, as well as multiple counts of sexual assault in the fourth degree and risk of injury to a child. A jury found the defendant guilty of two counts of sexual assault in the fourth degree and two counts of risk of injury to a child. The jury found him not guilty of one count of attempted sexual assault in the first degree, one count of sexual assault in the fourth degree, and one count of risk of injury to a child. The court imposed a sentence of fifteen years incarceration, suspended after ten years of mandatory minimum time, with ten years of probation. This appeal followed. I The defendant's first claim is that the court violated his rights under the sixth amendment to confront the witnesses against him and to present a defense when, pursuant to the rape shield statute, § 54-86f, it excluded evidence of the sexual nature of the victim's prior relationship with her boyfriend. We disagree. A Before trial, the state moved to exclude any evidence of the victim's prior sexual conduct, pursuant to § 54-86f. The defendant, however, moved to admit evidence that the victim was having sex with her boyfriend before she brought sexual abuse allegations against the defendant, on the ground that such evidence was admissible under the fourth exception to § 54-86f because it was "otherwise so relevant and material to a critical issue in the case that excluding it would violate the defendant's constitutional rights...." General Statutes § 54-86f(4). When the court decided these two motions in limine at a pretrial hearing, the court had before it only the factual representations and arguments made by the parties at that hearing. As for the defendant, defense counsel represented the following to the court at that hearing. Shortly before the victim's sexual abuse allegations, the defendant had found a series of letters that the victim's boyfriend had written to her. In the letters, the victim's boyfriend talked about losing his virginity with the victim, her concern that she might be pregnant, and their desire to be together forever. When the defendant found the letters, he confronted the victim and spoke with her mother. As a result, the victim was grounded and forbidden from seeing her boyfriend again, which ultimately led to their separation. Defense counsel further represented that the victim's relationship with the defendant deteriorated after her grounding, with the two arguing often, until one month later when she called her grandmother and falsely accused the defendant of sexual abuse so that the Department of Children and Families would remove him from the home. Defense counsel submitted the letters at issue to the court after the hearing. The defense argued that evidence of the sexual nature of the victim's relationship with her boyfriend was material on two distinct grounds: (1) to rebut an inference that the victim's allegations must be true because a child her age otherwise would lack the sexual knowledge necessary to make up the allegations; and (2) to show that the victim had a strong motive to falsely accuse the defendant as retaliation against him for ending her sexual relationship with her boyfriend. As to the sexual knowledge ground, the defense argued that, if the state submitted evidence conforming to its allegations that the victim accused the defendant of making her "hold his penis and go up and down on his penis," until the point of "ejaculation," and of asking her, "are you going to suck my penis," then the jury would naturally question where the victim learned how sex works such that she would be able to make allegations accurately describing sexual mechanics. The defense argued that, because the victim was only twelve years old when she first reported the defendant's sexual abuse, a jury would naturally presume that she had no ordinary sources of sexual knowledge, and so the only way she would know enough to describe sex was if she had learned about it from the defendant's sexual abuse. The defense argued that evidence of an alternative source of sexual knowledge-i.e., the victim's sexual relationship with her boyfriend-was necessary to rebut that presumption. As to the motive ground, the defense argued that, in presenting the jury with the defense theory that the victim accused the defendant of sexually abusing her in retaliation for his grounding her and ending her relationship with her boyfriend, the sexual nature of that relationship was relevant to the "emotional state of the parties" and explained why the victim became "so angry her emotions rose to the point" of falsely accusing the defendant of sexual abuse. The state opposed the defendant's motion, arguing that (1) a jury would not presume that someone the victim's age was sexually nave, especially given that "[c]hildren at an early age are taught . what's a good touch and what's a bad touch," so there was no need to rebut such a presumption with evidence of an alternative source of sexual knowledge, and (2) the defendant could submit evidence that he punished the victim and ended her relationship with her boyfriend shortly before she made the allegations against him, suggesting a possible motive, but whether the victim was having sex with her boyfriend was immaterial. The state did not dispute that the letters showed that the victim and her boyfriend were sexually active. The court granted the state's motion to exclude the evidence and denied the defendant's motions to admit it. The court ruled that the defendant could "say there was an issue, it was a very substantial issue, you know, that I'm going to allow, but not the specifics of what it was. You can't go there." When the defendant asked for further clarity the next day, the court replied: "Let me see if I can make this absolutely clear. There is to be no questioning, no inquiry based on my ruling yesterday with respect to any relationship-specific relationship between [the boyfriend] and the [victim]. I want that to be absolutely clearly understood, and-is that clear?. Is there any-any question about that area? Because if there is, I'd like to hear it now.... "You can't go into any area where an inference of a sexual relationship between [the boyfriend] and the [victim] could be inferred by the jury. I'm cautioning you, don't go there.... If you want to say there were letters . and the content of those letters caused an argument, that's fine, but nothing about what the content is.... I don't know how much clearer I can make this." B We begin with the standard of review. "This court has consistently recognized that it will set aside an evidentiary ruling only when there has been a clear abuse of discretion.... The trial court has wide discretion in determining the relevancy of evidence and the scope of cross-examination and [e]very reasonable presumption should be made in favor of the correctness of the court's ruling in determining whether there has been an abuse of discretion.... State v. Santos , 318 Conn. 412, 423, 121 A.3d 697 (2015). Generally, a trial court abuses its discretion when the court could have chosen different alternatives but has decided the matter so arbitrarily as to vitiate logic, or has decided it based on improper or irrelevant factors.... State v. O'Brien - Veader , 318 Conn. 514, 555, 122 A.3d 555 (2015). When this court reviews a decision of the trial court for abuse of discretion, the question is not whether any one of us, had we been sitting as the trial judge, would have exercised our discretion differently.... Rather, our inquiry is limited to whether the trial court's ruling was arbitrary or unreasonable.... State v. Cancel , 275 Conn. 1, 18, 878 A.2d 1103 (2005). Accordingly, the abuse of discretion standard reflects the context specific nature of evidentiary rulings, which are made in the heat of battle by the trial judge, who is in a unique position to [observe] the context in which particular evidentiary issues arise and who is therefore in the best position to weigh the potential benefits and harms accompanying the admission of particular evidence.... State v. Collins , 299 Conn. 567, 593 n. 24, 10 A.3d 1005, cert. denied, 565 U.S. 908, [--- U.S. -] 132 S.Ct. 314, 181 L.Ed. 2d 193 (2011)." (Citations omitted; internal quotation marks omitted.) State v. Wright , 320 Conn. 781, 831-32, 135 A.3d 1 (2016) (Espinosa, J ., concurring); see also id. (reviewing for abuse of discretion defendant's sixth amendment claims that he was denied right to confrontation and right to present defense); State v. Cecil J ., 291 Conn. 813, 819 n. 7, 970 A.2d 710 (2009) ( "[w]e review the trial court's decision to [exclude] evidence, if premised on a correct view of the law . for an abuse of discretion" [internal quotation marks omitted] ). "Prosecutions for sexual assault are governed by special rules of evidence, including § 54-86f. That statute was enacted specifically to bar or limit the use of prior sexual conduct of an alleged victim of a sexual assault because it is such highly prejudicial material.... In enacting § 54-86f, the legislature intended to [protect] the victim's sexual privacy and [shield the victim] from undue harassment, [encourage] reports of sexual assault, and [enable] the victim to testify in court with less fear of embarrassment.... Other policies promoted by the law include avoiding prejudice to the victim, jury confusion and waste of time on collateral matters.... "Thus, to determine whether the [sexual conduct] evidence [at issue] was properly excluded, we must begin our analysis with the relevant language of the rape shield statute." (Citations omitted; internal quotation marks omitted.) State v. Wright , supra, 320 Conn. at 798, 135 A.3d 1. The rape shield statute generally bars evidence of a victim's prior sexual conduct, subject to four exceptions, only the fourth of which is at issue here. Section 54-86f provides in relevant part: "In any prosecution for sexual assault . no evidence of the sexual conduct of the victim may be admissible unless such evidence is . (4) otherwise so relevant and material to a critical issue in the case that excluding it would violate the defendant's constitutional rights . [and] the probative value of the evidence outweighs its prejudicial effect on the victim...." Our Supreme Court has interpreted this language to require that a defendant show that the proffered evidence is (1) material, (2) relevant, and (3) so relevant and so material to a critical issue in the case that excluding it would violate the defendant's constitutional rights. See State v. Wright , supra, 320 Conn. at 812-23, 135 A.3d 1. Here, the proffered evidence was a series of letters, and presumably related cross-examination, that would have revealed the sexual nature of the victim's relationship with her boyfriend. We address each of the three requirements in turn. 1 First, we conclude that the proffered evidence was material, but only on the theory that it spoke to the victim's motive, not on the theory that it rebutted a presumption of sexual naivete. "[E]vidence is material when it has an influence, effect, or bearing on a fact in dispute at trial." Id. Materiality is often contrasted with relevance. The classic distinction between materiality and relevance is that (1) materiality pertains to whether the evidence tends to prove a fact that bears on an element of or defense to the action, and (2) relevance pertains to whether the evidence actually tends to prove that fact. See Conn. Code Evid. § 4-1, commentary; C. Tait & E. Prescott, Connecticut Evidence (5th Ed. 2014) § 4.1 through 4.1.4, pp. 153-55. In a strict sense, then, evidence is relevant to facts, and facts are material to legal elements. See Conn. Code Evid. § 4-1, commentary. In a more general sense, evidence is "material" if it is offered to prove facts that are themselves material, either directly or indirectly, to a legal element. See State v. Wright , supra, 320 Conn. at 810, 135 A.3d 1 ; C. Tait & E. Prescott, supra, § 4.1.3, p. 154. Here, the defendant offered two theories as to why the evidence was material. First, he argued that the sexual nature of the victim's relationship with her boyfriend would rebut an inference that the defendant must have sexually abused the victim because a child her age otherwise would lack the sexual knowledge necessary to make such allegations, and, thus, was material to whether the defendant sexually abused the victim. Second, he argued that the sexual nature of the victim's relationship with her boyfriend gave her a stronger motive to falsely accuse the defendant as payback for his role in ending it, which was material to whether her allegations of sexual abuse were true. We address each theory in turn. As to the sexual knowledge theory of materiality, the defendant argues that the sexual nature of the victim's relationship with her boyfriend was material to whether the defendant sexually abused the victim, insofar as it rebutted an inference that he must have sexually abused her because otherwise a child of the victim's age presumably would lack the sexual knowledge necessary to fabricate such allegations. This theory of materiality is essentially defensive and responds to the presumption that a child of the victim's age would have no source of sexual knowledge other than the abuse alleged. The seminal case on this issue is State v. Rolon , 257 Conn. 156, 158-59, 167 n. 19, 777 A.2d 604 (2001), in which a trial court excluded evidence that a different relative had sexually abused a six year old victim before the victim disclosed that the defendant abused her, and our Supreme Court held that this violated the defendant's constitutional rights. According to the court, the six year old victim in Rolon exhibited sexualized "behavior indicative of sexual abuse" and "highly age-inappropriate sexual knowledge," which a jury would "inevitably conclude . [came] from [the] defendant having committed such acts," if the defendant were not given the chance to rebut that presumption with evidence of an alternative source of the victim's sexual knowledge. (Emphasis in original; internal quotation marks omitted.) Id. Although, in Rolon, evidence of the six year old victim's prior sexual abuse may have been necessary to rebut the "jury's natural presumption of [the] child victim's sexual naivete"; id., 184 n.29 ; we cannot conclude that a similar rebuttal was required here. In the present case, the victim was twelve years old when she first came forward, and she was sixteen years old when she testified before the jury at trial. The sexual knowledge displayed in her allegations against the defendant was not unusual and was consistent with what middle schoolers and high schoolers are commonly taught about sex. We, thus, cannot conclude that the jury naturally would have presumed that the victim had no source of sexual knowledge other than the defendant's abuse, such that evidence rebutting that presumption with an alternative source of sexual knowledge was material. Cf. State v. Talton , 197 Conn. 280, 285-86, 497 A.2d 35 (1985) (where state never contended that baby born roughly nine months after sexual assault was defendant's child, evidence rebutting defendant's paternity was irrelevant). The court properly rejected the defendant's sexual knowledge theory of admissibility. As to the motive theory of materiality, the defendant argues that the sexual nature of the victim's relationship with her boyfriend was material to the issue of whether the defendant sexually abused the victim because it established a stronger motive for the victim to falsely accuse the defendant. According to the defendant, the victim's motive was her desire to get back at him for ending her relationship with her boyfriend, so the closeness of that relationship would affect the strength of her motive, and the strength of her motive would affect the credibility of her allegations. Because the victim was a fact witness to the acts of sexual abuse alleged, her credibility was material to whether the defendant in fact "subject[ed] [the victim] to sexual contact" or "ha[d] contact with the intimate parts [of the victim] . in a sexual and indecent manner likely to impair the health or morals of such child," which were required elements of the crimes charged. See General Statutes § 53a-73a(a)(1)(A) and 53-21(a)(2). Thus, to the extent that the defendant offered evidence of the sexual nature of the victim's relationship with her boyfriend to prove that she had a strong motive to falsely accuse the defendant as retaliation for ending that relationship, the evidence was material for purposes of the rape shield statute. 2 We next conclude that the proffered evidence was relevant. "Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue.... One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable.... Evidence is irrelevant or too remote if there is such a want of open and visible connection between the evidentiary and principal facts that, all things considered, the former is not worthy or safe to be admitted in the proof of the latter." (Internal quotation marks omitted.) State v. Wright , supra, 320 Conn. at 812, 135 A.3d 1. Similarly, the Code of Evidence defines relevant evidence as "evidence having any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence." Conn. Code Evid. § 4-1. "[E]vidence need not exclude all other possibilities [to be relevant]; it is sufficient if it tends to support the conclusion [for which it is offered], even to a slight degree.... [T]he fact that evidence is susceptible of different explanations or would support various inferences does not affect its admissibility, although it obviously bears upon its weight." (Internal quotation marks omitted.) United Technologies Corp. v. East Windsor , 262 Conn. 11, 29, 807 A.2d 955 (2002). Here, the proffered evidence-i.e., the letters and the victim's testimony-is relevant if each factual link in the chain connecting that evidence to the legal elements of the crime tends to support the next factual link, even to a slight degree. See id. Here, the defendant argues that (1) the letters and the victim's testimony would establish that she and her boyfriend had sexual intercourse ; (2) which was relevant to whether the defendant broke off a particularly close relationship between the victim and her boyfriend; (3) which was relevant to whether the victim had a strong motive to seek revenge against the defendant; (4) which was relevant to the victim's credibility ; (5) which was relevant to whether the victim's testimony that the defendant sexually abused her was true. We conclude that each factual link does tend to support the next, at least to a slight degree. On the first link, the state does not dispute that the letters showed that the victim and her boyfriend were sexually active. On the second and third links, our Supreme Court previously has held that, for purposes of evidentiary relevance, "a sexual relationship differs substantially from a nonsexual one in the level of emotional intensity and potential animus resulting from its termination." State v. Cortes , 276 Conn. 241, 256, 885 A.2d 153 (2005). On the fourth and fifth links, the United States Supreme Court has held that the "ulterior motives of [a] witness . [are] always relevant as discrediting the witness and affecting the weight of [her] testimony." (Internal quotation marks omitted.) Davis v. Alaska , 415 U.S. 308, 316, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). Accordingly, the proffered evidence is relevant for purposes of the rape shield statute. 3 Although evidence of the sexual nature of the victim's relationship with her boyfriend was both material and relevant to prove the strength of the victim's motive to falsely accuse the defendant, we conclude that it was not so material and so relevant that its exclusion violated the defendant's constitutional rights. "It is fundamental that the defendant's rights to confront the witnesses against him and to present a defense are guaranteed by the sixth amendment to the United States constitution. The sixth amendment provides in relevant part: In all criminal prosecutions, the accused shall enjoy the right . to be confronted with the witnesses against him; [and] to have compulsory process for obtaining witnesses in his favor.... A defendant's right to present a defense is rooted in the compulsory process and confrontation clauses of the sixth amendment.... Furthermore, the sixth amendment rights to confrontation and to compulsory process are made applicable to state prosecutions through the due process clause of the fourteenth amendment.... "In plain terms, the defendant's right to present a defense is the right to present the defendant's version of the facts as well as the prosecution's to the jury so that it may decide where the truth lies.... It guarantees the right to offer the testimony of witnesses, and to compel their attendance, if necessary.... Therefore, exclusion of evidence offered by the defense may result in the denial of the defendant's right to present a defense.... "The right of confrontation is the right of an accused in a criminal prosecution to confront the witnesses against him.... The primary interest secured by confrontation is the right to cross-examination . and an important function of cross-examination is the exposure of a witness' motivation in testifying.... Cross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted.... "Impeachment of a witness for motive, bias and interest may also be accomplished by the introduction of extrinsic evidence.... The same rule that applies to the right to cross-examine applies with respect to extrinsic evidence to show motive, bias and interest; proof of the main facts is a matter of right, but the extent of the proof of details lies in the court's discretion.... The right of confrontation is preserved if defense counsel is permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.... "Although it is within the trial court's discretion to determine the extent of cross-examination and the admissibility of evidence, the preclusion of sufficient inquiry into a particular matter tending to show motive, bias and interest may result in a violation of the constitutional requirements [of the confrontation clause] of the sixth amendment.... "These sixth amendment rights, although substantial, do not suspend the rules of evidence.... A court is not required to admit all evidence presented by a defendant; nor is a court required to allow a defendant to engage in unrestricted cross-examination.... Instead, [a] defendant is . bound by the rules of evidence in presenting a defense.... Nevertheless, exclusionary rules of evidence cannot be applied mechanistically to deprive a defendant of his rights.... Thus, [i]f the proffered evidence is not relevant [or constitutes inadmissible hearsay], the defendant's right[s] to confrontation [and to present a defense are] not affected, and the evidence was properly excluded.... The defendant's right to confront witnesses against him is not absolute, but must bow to other legitimate interests in the criminal trial process.... Such interests are implicit in a trial court's accepted right, indeed, duty, to exclude irrelevant evidence.... "There are special considerations in sexual assault prosecutions that trial courts must keep in mind when ruling on the admissibility of evidence, such as shielding an alleged victim from embarrassing or harassing questions regarding his or her prior sexual conduct.... Although the state's interests in limiting the admissibility of this type of evidence are substantial, they cannot by themselves outweigh [a] defendant's competing constitutional interests.... As we previously have observed, evidentiary rules cannot be applied mechanistically to deprive a defendant of his constitutional rights.... "We must remember that [t]he determination of whether the state's interests in excluding evidence must yield to those interests of the defendant is determined by the facts and circumstances of the particular case.... In every criminal case, the defendant has an important interest in being permitted to introduce evidence relevant to his defense. Evidence is not rendered inadmissible because it is not conclusive. All that is required is that the evidence tend to support a relevant fact even to a slight degree, [as] long as it is not prejudicial or merely cumulative.... Whenever the rape shield statute's preclusion of prior sexual conduct is invoked, a question of relevancy arises. If the evidence is probative, the statute's protection yields to constitutional rights that assure a full and fair defense.... If the defendant's offer of proof is . more probative to the defense than prejudicial to the victim, it must be deemed admissible at trial.... When the trial court excludes defense evidence that provides the defendant with a basis for cross-examination of the state's witnesses, [despite what might be considered a sufficient offer of proof] such exclusion may give rise to a claim of denial of the right[s] to confrontation and to present a defense." (Citations omitted; internal quotation marks omitted.) State v. Wright , supra, 320 Conn. at 816-20, 135 A.3d 1. "In determining whether a defendant's right of cross-examination has been unduly restricted, we consider the nature of the excluded inquiry, whether the field of inquiry was adequately covered by other questions that were allowed, and the overall quality of the cross-examination viewed in relation to the issues actually litigated at trial." (Internal quotation marks omitted.) State v. Mark R ., 300 Conn. 590, 610, 17 A.3d 1 (2011). At the outset, we note that the defendant relies heavily on State v. Cortes , supra, 276 Conn. at 256, 885 A.2d 153, for the proposition that excluding evidence of the sexual nature of a victim's relationship with her boyfriend was error where the closeness of that relationship spoke to her motive to fabricate the allegations. The court in Cortes held that such evidence was relevant, and so excluding it was evidentiary error. Id. The court was silent on whether it rose to the level of constitutional error. Id. Here, we agree with the defendant that the sexual conduct evidence was relevant, largely on the authority of Cortes, but that begs the question of whether it was also so critical that its exclusion violated the defendant's constitutional rights. We thus turn to an examination of our sixth amendment jurisprudence. On the one hand, convictions have been reversed where a defendant was entirely prevented from putting the defense theory of the case before the jury, either (1) because the defense was barred from asking about it, or (2) because the defense was allowed to ask but was barred from introducing any evidence to support it. Two cases from the United States Supreme Court are illustrative. In Olden v. Kentucky , 488 U.S. 227, 229-30, 109 S.Ct. 480, 102 L.Ed.2d 513 (1988), the defendant's theory of the case was that the victim's lover caught her exiting the defendant's car after a night at a bar, and that the victim claimed he had kidnapped and raped her to cover up her infidelity. The trial court entirely precluded the defendant from asking about the victim's relationship with her lover, and a jury found the defendant guilty. Id. On appeal, the United States Supreme Court reversed the judgment of conviction, holding that the trial court had violated the defendant's sixth amendment rights by excluding all evidence that the victim and her lover were in a relationship, effectively removing the defendant's theory of the case from the jury's consideration. Id. In Davis v. Alaska , supra, 415 U.S. at 310-11, 94 S.Ct. 1105, the defendant was charged with stealing a safe from a bar, and the only witness who identified the defendant was the teenage boy in whose yard the safe was found. At the time, the teenage boy was on probation for a prior burglary. The defense theory of the case was that the boy falsely accused the defendant either to deflect suspicion away from himself, or to appease the police, given his precarious status as a probationer. At trial, the defendant was allowed to ask the boy if he was afraid the police might suspect him of stealing the safe, but was forbidden from introducing evidence that the boy was on probation after being adjudicated a juvenile delinquent for the prior burglary. Id. at 311-13, 94 S.Ct. 1105. "On the basis of the limited cross-examination that was permitted, the jury might well have thought that defense counsel was engaged in a speculative and baseless line of attack on the credibility of an apparently blameless witness," and, indeed, the jury found the defendant guilty. Id., 318. On appeal, the United States Supreme Court reversed the judgment of conviction, holding that the trial court violated the defendant's sixth amendment rights by excluding all evidentiary support for the defendant's theory of the case. Id. On the other hand, convictions have been affirmed where the defense theory of the case either (1) was sufficiently before the jury, or (2) was so far-fetched that excluding it did not infringe the defendant's constitutional rights. Two cases from our Supreme Court are illustrative. In State v. Crespo , 303 Conn. 589, 591, 600 n. 13, 35 A.3d 243 (2012), the defendant was charged with violently raping his girlfriend, who testified that she had wished to remain a virgin until marriage. The defendant's theory of the case was that the victim had consented; he thus sought to undermine the victim's credibility by showing that she was deceptive, and had a motive to lie in that she was having sex with and became engaged to another man while she was dating the defendant. Id. at 596, 601, 35 A.3d 243. At trial, the court permitted the defense to ask the victim about her financial support from and engagement to the other man, but forbade the defense from asking if they had a sexual relationship. Id. On appeal, our Supreme Court affirmed the judgment of conviction, holding that evidence of the sexual nature of the victim's relationship with the other man may well have been relevant to undermine the victim's credibility and to rebut her claim of virginity, but that it was not so relevant that its exclusion violated the defendant's constitutional rights. Id. at 611-12, 35 A.3d 243. In State v. Kulmac , 230 Conn. 43, 49-50, 644 A.2d 887 (1994), the defendant, who was an uncle figure to the two child victims, was charged with repeatedly sexually abusing them over the course of several years. The defense theory of the case was that the victims either (1) confused the defendant with various other men who had sexually abused them, or (2) falsely implicated the defendant to protect their actual assailants from prosecution. Id. at 51, 55-56, 644 A.2d 887. The trial court excluded evidence of the victims' prior sexual abuse by the other men and the defendant was convicted. Id. at 45, 51-52, 644 A.2d 887. On appeal, our Supreme Court affirmed the judgment of conviction, deferring to the trial court's finding that the two victims did not appear confused as to the identity of their assailant and holding that the record did not bear out the defendant's motive argument because the two victims had already reported their other assailants to the police, resulting in their conviction. Id. at 55-56, 644 A.2d 887. Here, although the defendant's motive argument was not so beyond the pale that its wholesale exclusion would have been appropriate, the defendant was not prevented entirely from developing his theory of the case before the jury-to wit, that the victim falsely accused him in retaliation for his taking away her privileges, including her friendship with the boy she was dating. The court's ruling allowed the defendant to present evidence of every aspect of that punishment and its effect, including what privileges the victim lost, how much time she spent with her boyfriend before she was grounded, her reaction to being grounded, her reaction to being told she could no longer see her boyfriend, and her reaction to their breakup. He was precluded from introducing further evidence only to the extent that it revealed that the victim and her boyfriend were sexually active. On this record, we cannot conclude that the exclusion of the sexual conduct evidence violated the defendant's sixth amendment rights. See State v. Mark R. , supra, 300 Conn. at 611, 17 A.3d 1 ("[c]onsistent with these principles, we have rejected confrontation challenges in child abuse cases where the trial court permitted at least some inquiry into the witness' possible motives for untruthfulness"). The court did not abuse its discretion by excluding such evidence under § 54-86f(4). II The defendant's second claim is that the court violated his right to trial by an impartial jury under the sixth amendment to the United States constitution when it seated juror D.W., who ultimately became the jury foreperson. The defendant argues that D.W. could not be fair and impartial for three reasons: (1) D.W. believed that children were less likely to lie than adults; (2) he had personal experience believing a child abuse victim; and (3) he publicly opined on the central issue of the case during voir dire. By contrast, the state argues that the court did not abuse its discretion in seating D.W. because D.W. said that he would follow the court's instructions and that he would put his past experience aside when considering the evidence against the defendant. The following additional facts and procedural history are relevant to this claim. After six regular jurors and three alternates had been selected, but before trial began, the court informed the parties that they had lost two jurors. One of the alternate jurors was excused with a doctor's note due to back issues, and one of the regular jurors was unable to attend because his child had caught pneumonia. Accordingly, the court decided to select one additional alternate before trial began and then to select, from the three alternates, the replacement sixth regular juror. Because the state and the defendant already had exercised all eight of their peremptory challenges, the court gave them each one extra peremptory challenge for this final round of jury selection. The defendant exercised his peremptory challenge on the first prospective juror interviewed. The second prospective juror interviewed was D.W. During voir dire, D.W. said that he was a welder from Naugatuck who lived with his fiancée and their two year old daughter. He had the following exchange with the prosecutor: "Q. There may be some testimony from a child or a teenager in this case. Do you have any feelings about the credibility of children or teen-teenagers? "A. Versus the age of who's testifying? "Q. Yeah. "A. No. "Q. Okay. Do you think teen-do you think children generally tell the-excuse me. Do you think children generally tell the truth? "A. Most of the time, yes. "Q. Okay. How about teenagers? "A. Here and there, yes. "Q. Here and there, yes? "A. Well, it depends because some kids don't tell the truth, some kids do. "Q. Do you think teenagers tend to not tell the truth? "A. A little more than the others, yeah, because they're older and they know things right from wrong versus a child. "Q. Okay. So, if a teenager were to testify in this case and an adult were to-just hypothetically-and an adult were to testify in this case, do you think you would tend to believe the adult over the teenager? "A. No. "Q. Say hypothetical, teenager says X, adult says Y, totally different. Who would you tend to believe? "A. The teenager. "Q. Why? "A. Because teenagers are younger and they don't know everything. They-they don't know certain things as opposed to an adult. "Q. Okay. "A. They're more to tell the truth sometimes than an adult does. "Q. If the court were to instruct you that in assessing the credibility of any witness-child, teenager, adult-you-age can't play a factor in the sense of, if-that age isn't a determining factor in assessing credibility, would you follow that- "A. No. "Q.-instruction? "A. What do you mean? "Q. In-for example, if the court were to say, just be-age shouldn't be a factor in your assessment of the testimony of a person, whether it be a child or an adult, would you follow that instruction? "A. Yes. "Q. Okay. And the reason I'm-I'm asking is, there may be testimony from adults, there may be testimony from teenagers, there may be testimony from younger children. So, how would you assess a witness' credibility? If a witness testified, how would you-how would you figure out if that person was telling the truth? "A. Their body language. "Q. Anything else? "A. No. "Q. Okay. So, if the court said age can't play a factor, you'll take that out of the equation? "A. Yes." Later, defense counsel and D.W. had the following exchange: "Q. Some people feel that no child would ever make these accusations unless they were true. How do you feel about that? Do you agree with that? "A. I agree with that. "Q. Okay. Tell us a little bit about that. "A. Well, 2005, a neighbor on my-in my neighborhood, my girlfriend at the time, her children-her daughter played with one of the neighbor's kids. "Q. Um hmm. "A. And her daughter came to me and said that this person was doing things that were out of the ordinary, and I brought it to the mother's attention and then it was waved away by the police department and not caring because there was no proof, but then a month later there was a problem with another person, and now that person's not there anymore because they did something wrong. But when I spoke about it, and I believe the child because most of the time children don't make things up. "Q. Okay. So, at this time, right there, [the defendant], His Honor indicated that at this time he is presumed innocent. Do you think that given your past experience you would have difficulty- "A. No, because everybody gets a fair chance. "Q. And so at this time you have no problem presuming- "A. No. "Q.-him innocent? "A. No. "Q. However, you do feel that children would never lie about an- "A. I didn't say children would never lie. "Q. Oh, I'm sorry. I apologize. Could you- "A. I didn't say they wouldn't lie. I just said that they usually tell the truth because they-some don't-some don't know right from wrong. "Q. Do you think it makes a difference whether it's a younger child or a teenager, close to being a teenager? Does it make a difference? "A. Somewhat of a difference, but not really because they're children still and they haven't reached to the mature level to understand right from wrong. "Q. What would you consider a teenager? "A. I would consider a teenager fifteen and up. "Q. And so anybody below that age? "A. Is still a child. "Q. Is still a child. And you think that for the most part they would never accuse anybody unless it was true? "A. Unless it was true. "Q. Do you think that it would be difficult in this case not to lean for the prosecution? "A. No. It would be equal because you have to hear both sides to understand what's going on. "Q. And it wouldn't be difficult for you to put aside your belief that children most likely will not- "A. Children lie, but also children don't lie, so you have to put to the side that there's a right and a wrong, and that child's going to either tell the truth or it's going to lie and then, once again, it's a person's body language. "Q. Yeah. So, if you were chosen as a juror and you had a person-you had a child on the one hand, somebody under fifteen, and somebody who is an adult and they have contradictory stories, would you tend to believe the child over the adult? "A. Maybe, maybe not. It depends. I don't know. I'm not put in that position-that predicament yet so I don't know. "Q. So, you would-you would want to listen to what they have to say? "A. I would want to understand what's going on before I make that decision, yeah." Finally, the court asked D.W. several questions on the same topic: "[Q.] Okay. Probably the most important rule is that the jury evaluates all the witnesses, and it's required without exception to treat all those witnesses equally. It doesn't matter their gender, it doesn't matter their age, it doesn't matter what their title is, it doesn't matter if they're police officers, it doesn't matter if they're-it doesn't matter. You've got to treat every single witness by the same standard. So, the question is: Can you follow that rule? "[A.] Yes, sir. "[Q.] Okay. Now, we talked about-answered that. Just let me check my notes here. Give me a second. So, again, let me just give you an analogy, just-just to-I don't want to belabor this, but it's a real important point. The process here, you have to think of as a blank canvas. You're an artist, so the canvas is blank. The-the attorneys paint the picture- "[A.] Um hmm. "[Q.]-with the witnesses, with the exhibits, so that's the only thing you can consider. Anything from outside is not relevant. "[A.] It doesn't exist. "[Q.] It's just-right. It doesn't exist. That's a good way to put it. It's just what's presented to you here by treating all the witnesses by the same standard. So, can you-can you do that? "[A.] Yes, sir." When the juror left the room, the state said that it found D.W. acceptable. Defense counsel challenged him for cause, arguing that D.W. had said that he had personal experience believing a child abuse victim and that he thought children more credible. The court denied the challenge for cause, noting that D.W. ultimately said that he would have to evaluate children's credibility on an individual basis. The court seated D.W. as an alternate, the clerk randomly chose D.W. from the three alternates to be a regular juror, and D.W. was elected to be the jury foreperson at the end of trial. We begin with the standard of review. "The constitutional standard of fairness requires that a defendant have a panel of impartial, indifferent jurors.... We agree with the defendant that the enactment of article first, § 19, of the Connecticut constitution, as amended, reflects the abiding belief of our citizenry that an impartial and fairly chosen jury is the cornerstone of our criminal justice system.... We have held that if a potential juror has such a fixed and settled opinion in a case that he cannot judge impartially the guilt of the defendant, he should not be selected to sit on the panel.... "The trial court is vested with wide discretion in determining the competency of jurors to serve, and that judgment will not be disturbed absent a showing of an abuse of discretion.... On appeal, the defendant bears the burden of showing that the rulings of the trial court resulted in a jury that could not judge his guilt impartially." (Citations omitted; internal quotation marks omitted.) State v. Tucker , 226 Conn. 618, 630-31, 629 A.2d 1067 (1993). Accordingly, we review the defendant's claim for an abuse of discretion. Id. On this record, we cannot conclude that the court abused its discretion in denying the defendant's challenge for cause to juror D.W. The defendant argues that D.W. could not be fair and impartial for three reasons: (1) D.W. believed that children were less likely to lie than adults; (2) he had personal experience believing a child abuse victim; and (3) he publicly opined on the central issue of the case during voir dire. As to the first reason, which is D.W.'s tendency to believe children, although D.W. did say that children generally tell the truth, he also noted that "some kids don't tell the truth, some kids do," and that if a teenager and an adult both testified in a case, he would not necessarily believe the teenager over the adult. Rather, D.W. said that he would evaluate the witnesses' credibility individually, on the basis of their demeanor. He reiterated that position when defense counsel questioned him on it. When the court instructed D.W. that "it doesn't matter their age . [y]ou've got to treat every single witness by the same standard," and asked D.W. if he would follow that rule, he replied that he would. As to the second reason, which is D.W.'s prior experience, although D.W. did say that, eight years ago, his former girlfriend's daughter told him that a neighbor was "doing things that were out of the ordinary" and that the neighbor was "not there anymore because they did something wrong." D.W. was also adamant that "everybody gets a fair chance" and that he would "have to hear both sides to understand what's going on" in the defendant's case. When the court explained that D.W. could consider only the testimony and exhibits at trial, not any outside experiences, D.W. said that he understood and would treat his prior experience as though "[i]t doesn't exist." When the court asked D.W. if he could limit his deliberations to the evidence presented at trial, D.W. replied that he would. As to the third reason, for the reasons previously discussed, we disagree that D.W. expressed "a fixed and settled opinion"; State v. Tucker , supra, 226 Conn. at 630, 629 A.2d 1067 ; on the central issue of the case, i.e., the victim's credibility versus that of the defendant. To the contrary, D.W. repeatedly said that he would have to hear the evidence and evaluate witnesses on an individual basis. In sum, after some initial confusion, D.W. told both attorneys and the court that he would not believe child witnesses merely on the basis of their age; that he would put aside his prior experiences; and that he would need to judge each witness individually. We conclude that the court reasonably could have determined that D.W. would be impartial, and so the court did not abuse its discretion when it denied the defendant's challenge for cause. The judgment is affirmed. In this opinion the other judges concurred. The jury found the defendant not guilty of three other charges: (1) a third charge of sexual assault in the fourth degree; (2) a third charge of risk of injury to a child; and (3) a charge of attempt to commit sexual assault in the first degree in violation of General Statutes § 53a-49(a)(2) and 53a-70(a)(2). General Statutes § 53-21(a) provides in relevant part: "Any person who . (2) has contact with the intimate parts . of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child . shall be guilty of . a class B felony . and [if] the victim of the offense is under thirteen years of age, such person 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." We note that although § 53-21 has been amended several times since the events at issue here, those amendments are not relevant to this appeal. For convenience, we refer to the current revision of § 53-21 as codified in the 2016 supplement to the General Statutes. Here, the court imposed consecutive five year mandatory minimum sentences on the conviction of two counts of risk of injury to a child. See State v. Polanco , 301 Conn. 716, 723, 22 A.3d 1238 (2011) ("[t]he determination whether to impose concurrent or consecutive sentences is a matter within the sound discretion of the trial court" [internal quotation marks omitted] ). General Statutes § 54-86f provides in relevant part: "In any prosecution for sexual assault under sections 53a-70, 53a-70a, and 53a-71 to 53a-73a, inclusive, no evidence of the sexual conduct of the victim may be admissible unless such evidence [meets one of four exceptions]...." Our Supreme Court has held that the requirement that the probative value of the evidence must outweigh its prejudice to the victim is superfluous when a defendant proceeds under subdivision (4) because a victim's rights under a state statute can never outweigh a defendant's rights under the federal constitution. See State v. Wright , supra, 320 Conn. at 823 n. 20, 135 A.3d 1 ("evidence cannot be excluded as more prejudicial to the victim than probative when that exclusion has already been determined to violate the defendant's constitutional rights" [internal quotation marks omitted] ); see also U.S. Const. Art. VI, cl. 2 ("[t]his Constitution . shall be the supreme Law of the Land . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding"). See State v. Oliver , 158 Ariz. 22, 31, 760 P.2d 1071 (1988) ( "[g]iven the age of the [twelve and thirteen year old] victims and the rather unexplicit nature of their testimony, we find it unlikely that a jury would infer that the victims could only describe the molestation because [the defendant] had, in fact, molested them"); but see People v. Ruiz , 71 A.D.2d 569, 570, 418 N.Y.S.2d 402 (1979) (seemingly accepting argument that evidence of twelve year old victim's prior sexual conduct was admissible to show alternative source of sexual knowledge). We note that the evidence presented at trial, although obviously not available to the court when it ruled on the motions in limine, bore out the court's conclusion that evidence of the victim's sexual relationship with her boyfriend as an alternative source of the victim's sexual knowledge was immaterial. At trial, the state never argued that the victim displayed a degree of sexual knowledge that was unusual for her age, or that the defendant was its only possible source. Indeed, the state's expert witness testified, albeit for a different purpose, that children begin to acquire sexual knowledge naturally from a young age, and are taught about sex in school beginning around fourth or fifth grade. Here, the victim first accused the defendant of sexually abusing her when she was twelve years old in seventh grade, and she was sixteen years old at trial. Evidence must meet all three of the rape shield statute's requirements to be admissible. State v. Wright , supra, 320 Conn. at 815, 135 A.3d 1. Thus, our conclusion that the victim's sexual knowledge was not material dispenses with the need to analyze whether the defendant's sexual knowledge theory of admissibility would satisfy the remaining two requirements. See, e.g., Davis v. Alaska , 415 U.S. 308, 316-17, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) (Witness credibility may be challenged "by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand. The partiality of a witness is subject to exploration at trial, and is always relevant as discrediting the witness and affecting the weight of his testimony.... We have recognized that the exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination." [Citation omitted; internal quotation marks omitted.] ). In holding that the sexual conduct evidence was admissible, the court in Cortes noted that the rape shield statute did not bar its admission because the defendant was not charged with a sex crime. State v. Cortes , supra, 276 Conn. at 256, 885 A.2d 153. See also State v. Shaw , 312 Conn. 85, 114-15, 90 A.3d 936 (2014) ("if the jurors heard and believed the defendant's testimony regarding [the victim having sex with her brother], they also might have believed that [the victim and her mother] were motivated to fabricate the alleged assault for the purpose of removing the defendant from the household and covering up [the siblings'] allegedly inappropriate behavior"); State v. Adorno , 121 Conn.App. 534, 541, 996 A.2d 746 (error to preclude entirely evidence of victim's sexual relationship with boyfriend where "theory of defense [was] that the victim feared that her urinary tract infection was the result of sexual activity and that she falsely accused the defendant so that her sexual relationship with her boyfriend would not be discovered"), cert. denied, 297 Conn. 929, 998 A.2d 1196 (2010) ; State v. Horrocks , 57 Conn.App. 32, 39, 747 A.2d 25 ("the preclusion of any cross-examination of the victim concerning her relationship with [the state's investigating detective] improperly prohibited inquiry into a legitimate area of relevant concern"), cert. denied, 253 Conn. 908, 753 A.2d 941 (2000). See also State v. Wright , supra, 320 Conn. at 821, 135 A.3d 1 (trial court violated defendant's sixth amendment rights where "the excluded testimony was the only evidence the defense presented to support its theory of the case"); State v. Colton , 227 Conn. 231, 241-46, 630 A.2d 577 (1993) (trial court violated defendant's sixth amendment rights when, although it allowed him to ask state's primary witness if she was prostituting herself for drugs and needed reward money from defendant's conviction to fund her habit, it forbade defendant from introducing evidence to that effect when witness flatly denied it). We note that the holding in Crespo is complicated by the defendant's failure to state precisely his theory of relevance at trial in that case. See State v. Crespo , supra, 303 Conn. at 614, 35 A.3d 243. For a cleaner holding, albeit outside the context of the rape shield statute, see State v. Mark R. , supra, 300 Conn. at 607-608, 611-13, 615, 17 A.3d 1, in which the trial court excluded some but allowed into evidence other aspects of the defense theory of the case-that the child victim falsely accused her father of sexually abusing her either (1) to redirect her mother's attention to her after her mother began devoting her time to the victim's newly adopted siblings; or (2) at her mother's urging so that she could divorce the victim's father-and our Supreme Court affirmed the defendant's conviction on the ground that, even assuming the excluded evidence was relevant, it was not so relevant that its exclusion violated his constitutional rights. We note that, at trial, the defendant in fact elicited such testimony. The sixth amendment to the United States constitution provides in relevant part: "In all criminal prosecutions, the accused shall enjoy the right to a . trial, by an impartial jury...." That right is made applicable to the states through the due process clause of the fourteenth amendment to the United States constitution, which also independently requires jury impartiality. Morgan v. Illinois , 504 U.S. 719, 726, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992) ; Ristaino v. Ross , 424 U.S. 589, 595 n. 6, 96 S.Ct. 1017, 47 L.Ed.2d 258 (1976). The defendant also argues in his brief that the seating of D.W. violated article first, § 8, of the Connecticut constitution. He has provided no independent analysis of the state constitution, as required under State v. Geisler , 222 Conn. 672, 684-86, 610 A.2d 1225 (1992), and so we limit our review to the federal constitution. See State v. Dixon , 318 Conn. 495, 497-98 n. 2, 122 A.3d 542 (2015). Because the defendant had no remaining peremptory challenges when the court denied his challenge of D.W. for cause, this issue is preserved for appellate review. See State v. Kelly , 256 Conn. 23, 32 n. 8, 770 A.2d 908 (2001) (defendant must exhaust peremptory challenges before claiming error in trial court's denial of challenge for cause). We further note that, contrary to the suggestion of the trial court, a juror may properly consider a witness' age as one factor affecting credibility. See, e.g., State v. Ceballos , 266 Conn. 364, 422, 832 A.2d 14 (2003) ("court instructed the jury . that it was solely responsible for assessing the credibility of [the child witness], and that it could consider her age"); State v. Aponte , 249 Conn. 735, 751, 738 A.2d 117 (1999) (child witness' age relevant to credibility); State v. Angell , 237 Conn. 321, 331 n. 11, 677 A.2d 912 (1996) ("reference to a witness' age or maturity level in [the court's] general instruction on credibility . may be appropriate in certain circumstances").

12487771

Cody B. Heisinger v. Ann H. Dillon et al. In re Probate Appeal of Cody B. Heisinger

Heisinger v. Dillon (In re Heisinger)

2016-09-27

AC 37967, (AC 37969)

1123

1132

147 A.3d 1123

147

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

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

Fastcase

Cody B. Heisinger v. Ann H. Dillon et al.

Cody B. Heisinger v. Ann H. Dillon et al. In re Probate Appeal of Cody B. Heisinger AC 37967, (AC 37969) Appellate Court of Connecticut. Argued May 16, 2016 Officially released September 27, 2016 Ralph P. Dupont, for the appellant (plaintiff). James R. Fogarty, for the appellee (named defendant). Linda L. Morkan, with whom, on the brief, was Christopher J. Hug, for the appellees (defendant Robert A. Bartlett, Jr., et al.). Beach, Sheldon and Sullivan, Js. The appeal in the second case originally was filed with the caption Cody B. Heisinger v. Probate Appeal . The caption has been changed to reflect that the Probate Appeal is not a party. It should be noted that the microfiche version of the Appellate Court Record and Briefs in this case will be found under the original title.

5264

31479

SHELDON, J. In these two related actions, the plaintiff, Cody B. Heisinger, appeals from the summary judgments rendered by the trial court in favor of the defendant Ann H. Dillon, and the defendant trustees Robert Bartlett, Jr., and Frederick M. Tobin. Both actions arise from a dispute between the plaintiff and the trustees concerning the latters' decision, following the death of Frank Heisinger, the plaintiff's father and Dillon's brother, to distribute income from a certain trust that previously was payable to Frank Heisinger to Dillon rather than to the plaintiff. In 1950, Francis Bartlett, the plaintiff's great grandfather and Dillon's grandfather, drafted a will in which he created a trust to benefit his descendants. Pursuant to the terms of the trust, Frank Heisinger and Dillon each began to receive a 25 percent share of the trust income upon the death of their mother, Jane Bartlett Heisinger, in 1991. Upon Frank Heisinger's death in 2007, the trustees began to distribute his 25 percent share of the trust income to Dillon. The plaintiff, claiming that that share should then be distributed to him, as his father's sole heir, instead of to Dillon, initiated these two actions. In the first action, Cody B. Heisinger v. Ann H. Dillon et al. (AC 37967) (declaratory judgment action), the plaintiff sought a declaratory judgment against Dillon and the trustees, construing the trust to provide that following his father's death, the trust income formerly distributed to his father should be distributed to him rather than to Dillon. In the second action, In re Probate Appeal of Cody B. Heisinger (AC 37969) (probate action), the plaintiff appealed from a Probate Court order approving an interim accounting of the trust's assets, including distributions to Dillon of income previously distributed to Frank Heisinger before his death. After all parties in the two actions filed and argued motions for summary judgment, the trial court concluded that the plaintiff was not entitled to receive his deceased father's distribution of trust income, and thus rendered summary judgment in favor of the defendants in both actions. The plaintiff appeals, claiming that the trial court erred in construing the trust not to entitle him to receive his father's share of the trust income. We disagree with the plaintiff, and we thus affirm the summary judgment rendered in favor of the defendants in the declaratory judgment action and dismiss the appeal in the probate action as moot. The following undisputed facts are relevant to this appeal. Francis A. Bartlett signed his last will and testament on December 11, 1950. The will created a trust for the benefit of his descendants, the corpus of which was funded by the common and preferred stock of the F. A. Bartlett Tree Expert Company and the Bartlett Realty Company. The provisions of the will directed that the income of the trust would be paid to his wife, Myrtle K. Bartlett, until her death, and then paid in equal shares to his two children, Robert A. Bartlett and Jane Bartlett Heisinger, for and during their respective lives. The will further provided that when Robert A. Bartlett or Jane Bartlett Heisinger died, his or her half of the trust income would be paid thereafter to his or her respective children. The will did not expressly provide for how income of the trust that was payable either to the children of Robert A. Bartlett, on the one hand, or to the children of Jane Bartlett Heisinger, on the other, would be distributed among his or her surviving children upon the death of one or more, but not all, of such children. It did, however, provide for the separate termination of the trust in two equal portions, one for the benefit of Robert A. Bartlett's descendants and the other for the benefit of Jane Bartlett Heisinger's descendants, as follows. Upon the death of Jane Bartlett Heisinger's last surviving child who was in being at the time of Francis Bartlett's death, the Heisinger portion of the trust would terminate and 50 percent of the trust principal would be distributed to her children, with any children of those children taking a deceased parent's share, per stirpes. Upon the death of Robert A. Bartlett's last surviving child who was in being at the time of Francis Bartlett's death, the Bartlett portion of the trust would terminate and the other 50 percent of the trust principal would be distributed to his children and/or grandchildren in the same manner. When Jane Bartlett Heisinger died in 1991, the trustees began to distribute one half of the trust income, in two equal shares of 25 percent each, to her two children: Frank Heisinger and Dillon. Frank Heisinger died in 2007, after which the trustees began to distribute his 25 percent share of the trust income to Dillon. The plaintiff claims that this 25 percent share should be paid to him. On July 18, 2013, the plaintiff filed a revised complaint in the declaratory judgment action, which was the operative complaint at the time of the court's summary judgment ruling. In that three count complaint, the plaintiff (1) sought advice, pursuant to General Statutes § 52-1 and 52-29, and Practice Book § 17-54 through 17-59, as to his entitlement to his father's share of the trust income after his death; (2) sought damages from the trustee defendants for breach of fiduciary duty; and (3) sought damages and prejudgment interest from Dillon for unlawfully receiving and retaining the share of trust income to which the plaintiff claims he is entitled. The plaintiff filed a complaint in the probate action on August 26, 2013, claiming that he was aggrieved by the Probate Court's approval of an interim accounting of the trust for the period from January 1, 2009 through December 31, 2011. The plaintiff requested an order and judgment that the Probate Court lacked subject matter jurisdiction to issue its order and decree approving the interim accounting of the trust and an order and decree that the interim accounting be held in abeyance pending the outcome of the declaratory judgment action. In the alternative, the plaintiff requested that the interim accounting be accepted without res judicata or collateral estoppel effect pending final determination of the declaratory judgment action. All of the parties filed motions for summary judgment in both the declaratory judgment action and the probate action. The trial court heard argument on all of the motions for summary judgment together on April 13, 2015. On May 4, 2015, it issued a single memorandum of decision granting the defendants' motions for summary judgment in both actions. The court explained its decision as follows: "[T]he proper starting point for the court's analysis is the language of the trust. As previously stated, the clause at issue provides, in relevant part as follows: 'Upon the death of my daughter, Jane Bartlett Heisinger . I direct that one-half of the net income from said trust fund be paid to the children of my said daughter, in equal shares, until the death of her last surviving child, who was in being at the time of my death, and upon the death of said last surviving child of my said daughter, in being at the time of my death , I give, devise and bequeath one-half of the principal of said trust fund to the children of my said daughter, in equal shares, freed from said trust, the children of any deceased grandchild to take the share which the parent would have taken, if living, per stirpes and not per capita, freed from said trust.' . "The highlighted language clearly provides that Jane Bartlett Heisinger's children (Frank Heisinger and Ann Dillon) are to receive her portion of the trust income, in equal shares, until the death of her last surviving child that was in being at the time of Francis A. Bartlett's death. Frank Heisinger was born in 1950 and Ann Dillon was born in 1953. Francis A. Bartlett died in 1963. The plaintiff, on the other hand, was not born until 1985. Therefore, he was plainly not a life in being at the time of Francis A. Bartlett's death. The highlighted language indicates that it was Francis A. Bartlett's intent to provide trust income to Jane Bartlett Heisinger's children, in equal shares, until the death of her last child. As we know, Jane Bartlett Heisinger's daughter, the defendant Dillon, is still alive. As a result, Dillon is entitled to the full 'Heisinger portion' of the trust income until her death. Thereafter, 'the children of any deceased grandchild,' such as the plaintiff, will take 'the share which the parent would have taken, if living, per stirpes and not per capita, freed from said trust.' " (Emphasis in original.) The court rejected the plaintiff's contention that Stanley v. Stanley , 108 Conn. 100, 142 A. 851 (1928), stands for the dispositive proposition that " 'when there are multiple income beneficiaries, a surviving income beneficiary is not entitled to the entire trust income'." Rather, the trial court stated that the court in Stanley was merely "interpreting the language of a specific testamentary document," not "[setting] forth a general rule of testamentary construction...." The court then reasoned that the default rules of construction set forth in the Restatement (Second) of Trusts supported its conclusion, noting that it is "proper for the court to use the Restatement (Second) of Trusts, which was published in 1959, as opposed to the relevant section of the Restatement (Third) of Trusts, which was not published until 2003, because the relevant law is that which was in existence at the time of the drafting of the trust document at issue." On appeal, the plaintiff claims that the trial court erred in rendering summary judgments in favor of the defendants and requests that we reverse those judgments and remand the case with direction to render partial summary judgment in his favor in the declaratory action as to his entitlement to receive his father's share of the trust income following his father's death. The defendants maintain that the trial court properly interpreted the trust to require that Frank Heisinger's share of the trust income be paid to Dillon until her death. The parties agree that a decision interpreting the trust in favor of the defendants in the declaratory judgment action also would be conclusive of the probate action. The plaintiff argues that the language of the trust does not expressly provide for the distribution of trust income upon his father's death. Accordingly, he argues that we should turn to provisions in the Restatement (Third) of Trusts and the Restatement (Third) of Property to supply the default construction rules. The defendants argue, however, that the intent of Francis Bartlett is clear, and that, if we conclude that it is not, we should look to the Restatement (Second) of Trusts and the Restatement (First) of Property, which were in existence closer to the time his will was drafted. "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.... In evaluating the propriety of a summary judgment, we are confined to an examination of the pleadings and affidavits of the parties to determine whether (1) there is no genuine issue as to any material fact, and (2) the moving party is entitled to judgment as a matter of law." (Citation omitted; internal quotation marks omitted.) Miller v. United Technologies Corp ., 233 Conn. 732, 744-45, 660 A.2d 810 (1995). Here, the only determination necessary is whether the moving party is entitled to judgment as a matter of law because "[t]he construction of a will presents a question of law"; (internal quotation marks omitted.) Corcoran v. Dept. of Social Services , 271 Conn. 679, 698, 859 A.2d 533 (2004) ; and there are no disputed material factual issues. Finally, "[s]ummary judgment rulings present questions of law; accordingly, [o]ur review of the . decision to grant [a] . motion for summary judgment is plenary." (Internal quotation marks omitted.) Misiti, LLC v. Travelers Property Casualty Co. of America , 308 Conn. 146, 154, 61 A.3d 485 (2013). We first turn to the language of the will in order to determine the intent of the testator. "It is well settled that in the construction of a testamentary trust, the expressed intent of the testator must control." Gimbel v. Bernard F. & Alva B. Gimbel Foundation, Inc. , 166 Conn. 21, 26, 347 A.2d 81 (1974). "In seeking the intention of the testator, resort must first be had to the will itself." Hoenig v. Lubetkin , 137 Conn. 516, 519, 79 A.2d 278 (1951). We conclude that the intent of Francis Bartlett, as expressed in his will, is clear: if Frank Heisinger predeceased his sister, Dillon, his share of the trust income must be paid to Dillon for her lifetime. Contrary to the plaintiff's reading of the will, it does not evince an overall purpose of providing an income stream to Francis Bartlett's great grandchildren. The will provides that income shall "be paid to the children of [Jane Bartlett Heisinger], in equal shares, until the death of her last surviving child, who was in being at the time of [Francis Bartlett's] death." The condition of "the death of [Jane Bartlett Heisinger's] last surviving child" has not occurred and, regardless, the plaintiff is not a child of Jane Bartlett Heisinger, and thus is not entitled to a distribution of income. Francis Bartlett was aware of how to draft a provision in which a great grandchild would take in place of a deceased grandchild. In distributing the trust principal, the will states, "[T]he children of any deceased grandchild to take the share which the parent would have taken, if living, per stirpes...." The distribution of income, however, is limited to Francis Bartlett's wife, children, and grandchildren. Notably, even the language distributing the trust principal upon the termination of the trust focuses on Francis Bartlett's grandchildren, not his great grandchildren: "I give devise and bequeath one-half of the principal of said trust fund to the children of my said [son/daughter], in equal shares, freed from said trust, the children of any deceased grandchild to take the share which the parent would have taken, if living, per stirpes and not per capita, freed from said trust." The will thus supports the conclusion that Francis Bartlett's intention in creating the trust was to have trust income payable only to his wife, his children and his grandchildren, during their lifetimes, while reserving only per stirpes distributions of the trust's remaining principal, upon its termination, for his great grandchildren. Because we have concluded that the intent of the testator is clear, it is not necessary for us to turn to default rules of construction. We note, however, that if it were necessary to resort to a default rule of construction, the default rule of construction in existence at the time the will was drafted would govern. Hartford National Bank & Trust Co. v. Birge , 159 Conn. 35, 43, 266 A.2d 373 (1970) ("[an attorney] may be assumed to have been familiar with accepted rules of construction as of the time the will was drawn"). Although the Restatement (Second) of Trusts had not yet been published at the time Francis Bartlett's will was drafted, the rules announced therein support our construction of the trust and is an expression of the default rules of construction in existence in 1950. Section 143 (2) of the Restatement (Second) of Trusts provides: "If a trust is created under which the income is payable to two or more beneficiaries and the principal is payable to another on the death of the survivor of the income beneficiaries, and one of them dies, the survivor or survivors are entitled to the income until the death of the last survivor, unless the settlor manifested a different intention." Comment (b) to § 143 (2) provides: "Where the income under a trust is payable to several beneficiaries, and there is a gift over to another on the death of the survivor of the beneficiaries, and one of the beneficiaries dies, the disposition of the share of the income which was payable to the deceased beneficiary depends upon the settlor's manifestation of intention. Where there is no provision in the terms of the trust as to its disposition, the question is what the settlor would probably have intended. Usually the inference is that he intended that the income should be divided among the surviving beneficiaries. This is true even though the beneficiaries are not referred to as a class. It may appear from the circumstances, however, that the settlor would have preferred that the income should be paid to the estate of the deceased beneficiary, until the death of the last surviving beneficiary. Or it may appear that he intended the income to be paid to or accumulated for the beneficiary in remainder. Or it may appear that he did not intend to make any disposition of the share of the income of the deceased beneficiary, in which case the income would be payable to the settlor's estate until the death of the last surviving beneficiary. See Restatement of Property, § 115." 1 Restatement (Second), Trusts § 143 (2), p. 303 (1959). The Restatement (Second) of Trusts is an expression of the rules of construction in existence in 1950, as demonstrated by its citation to cases decided before 1950. See 3 Restatement (Second), Trusts § 143, Appendix, reporter's notes, p. 218 (1959), citing Loring v. Coolidge , 99 Mass. 191, 191 (1868) ; Clarke v. Rathbone , 221 Mass. 574, 109 N.E. 651 (1915) ; Old Colony Trust Co. v. Treadwell , 312 Mass. 214, 43 N.E.2d 777 (1942) ; Camden Safe Deposit & Trust Co. v. Fricke , 99 N.J. Eq. 506, 133 A. 882 (1926) ; Rhode Island Hospital Trust Co. v. Thomas , 73 R.I. 277, 54 A.2d 432 (1947) ; In re Levy 's Will , 234 Wis. 31, 289 N.W. 666 (1940). Finally, the cases relied upon by the plaintiff, Hartford - Connecticut Trust Co. v. Gowdy , 141 Conn. 546, 107 A.2d 409 (1954), and Stanley v. Stanley , supra, 108 Conn. at 100, 142 A. 851, do not set forth a general rule of construction that is different from that in the Restatement (Second) of Trusts. Those cases merely interpret the language of the specific documents at issue. "Indeed, in the construction of a will or trust, precedents are usually inconclusive, since the same or substantially similar expressions seldom occur in different wills or trust agreements. And precedents are entitled to little weight where they do not involve precisely analogous language used by testators or settlors who are surrounded by like circumstances at the execution of the will or trust agreement. In each case, it is the intention expressed by the particular language employed which must be construed." Hartford National Bank & Trust Co. v. Birge , supra, 159 Conn. at 42-43, 266 A.2d 373. The plaintiff urges us to rely on § 49 of the Restatement (Third) of Trusts and § 26.9 of the Restatement (Third) of Property; however, those sections were published in 2003 and 2011, respectively. An attorney drafting a will cannot be expected to be familiar with default rules of construction published more than one-half of a century later. Even so, the plaintiff maintains that the rules promulgated in the Restatement (Third) of Trusts do not conflict with the provisions in the Restatement (Second) of Trusts, but rather describe an exception for multigenerational and multibeneficiary trusts that was not described in the Restatement (Second) of Trusts. The plaintiff, however, has not presented any legal authority upon which we could conclude that such an exception was an accepted rule of construction in 1950. Even if it were the prevailing default rule of construction at that time, it would not override the testator's intent, which we have found to be clear in this case. Accordingly, the trial court did not err in construing Francis Bartlett's will to exclude the plaintiff from receiving income from the trust after his father's death, and thus properly granted summary judgment on that ground. Because we reach that conclusion, the plaintiff's appeal in the probate action is moot. The judgment is affirmed in the declaratory judgment action. The appeal in the probate action is dismissed as moot. In this opinion the other judges concurred. The will directed the trustees "to pay the net income therefrom, quarter-annually, to my wife, Myrtle K. Bartlett, for and during the term of her natural life, and upon her death, or should she predecease me, then I direct that the net income from said trust fund be paid, in equal shares, quarter-annually, to my son, Robert A. Bartlett, and my daughter, Jane Bartlett Heisinger, for and during the term of their respective lives." The will provided: "Upon the death of my son, Robert A. Bartlett, or should he predecease me, and my wife, then upon the death of my wife I direct that one-half of the net income from said trust fund be paid to the children of my said son, in equal shares, until the death of the last surviving child of my son who was in being at the time of death, and upon the death of said last surviving grandchild in being at the time of death, I give devise and bequeath one-half of the principal of said trust fund to the children of my said son, in equal shares, freed from said trust, the children of any deceased grandchild to take the share which the parent would have taken, if living, per stirpes and not per capita, freed from said trust.... "Upon the death of my daughter, Jane Bartlett Heisinger, or should she predecease me, and my wife, then upon the death of my wife, I direct that one-half of the net income from said trust fund be paid to the children of my said daughter, in equal shares, until the death of her last surviving child, who was in being at the time of my death, and upon the death of said last surviving child of my said daughter, in being at the time of my death, I give, devise and bequeath one-half of the principal of said trust fund to the children of my said daughter, in equal shares, freed from said trust, the children of any deceased grandchild to take the share which the parent would have taken, if living, per stirpes and not per capita, freed from said trust." The will also provided for the distribution in the event that Jane Bartlett Heisinger died without leaving any surviving children: "In case my said daughter shall die without leaving her surviving any children, then I direct that all of the net income from said trust fund be paid to my said son, Robert A. Bartlett, as aforesaid, and upon his death, I give devise and bequeath the net income from said trust fund to his children, in equal shares, until the death of his last surviving child who was in being at the date of my death, and upon the death of said last surviving child, in being at the time of my death, I give, devise and bequeath the principal of said trust fund to the children of my said son, in equal shares, freed from said trust, the children of any deceased grandchild to take the shares which the parent would have taken, if living, per stirpes and not per capita, freed from said trust." The trust had a parallel provision in the event that Robert A. Bartlett died without leaving any surviving children. The parties dispute when Frank Heisinger died; Dillon's appellate brief states that he died in 2008. General Statutes § 52-1 provides: "The Superior Court may administer legal and equitable rights and apply legal and equitable remedies in favor of either party in one and the same civil action so that legal and equitable rights of the parties may be enforced and protected in one action. Whenever there is any variance between the rules of equity and the rules of the common law in reference to the same matter, the rules of equity shall prevail." General Statutes § 52-29 (a) provides: "The Superior Court in any action or proceeding may declare rights and other legal relations on request for such a declaration, whether or not further relief is or could be claimed. The declaration shall have the force of a final judgment." Practice Book § 17-54 provides: "The judicial authority will, in cases not herein excepted, render declaratory judgments as to the existence or nonexistence (1) of any right, power, privilege or immunity; or (2) of any fact upon which the existence or nonexistence of such right, power, privilege or immunity does or may depend, whether such right, power, privilege or immunity now exists or will arise in the future." On November 3, 2014, the plaintiff filed a motion for summary judgment in the declaratory judgment action, and on December 9, 2014, the trustee defendants filed a cross motion for summary judgment in the declaratory judgment action and a motion for summary judgment in the probate action. The following day, Dillon filed a cross motion for summary judgment in the declaratory judgment action and a motion for summary judgment in the probate action. On February, 23, 2015, the plaintiff filed a motion for summary judgment against Dillon in the probate action. Although no motion to consolidate was ever filed, the trial court addressed all of the motions for summary judgment in a single memorandum of decision. The parties do not dispute that the "Heisinger portion" of the trust principal will not be distributed until the passing of Dillon, at which point the plaintiff will be entitled to Frank Heisinger's share of the trust principal. Dillon asserted as an alternative ground for affirmance that the first accounting approved by the Probate Court is entitled to full faith and credit under General Statutes § 45a-24. We will not address this alternative ground in light of our conclusion that summary judgment was properly rendered. In the probate action, the plaintiff claims that the Probate Court lacked subject matter jurisdiction to approve the interim trust accounting before final judgment was rendered in the declaratory judgment action. Assuming that jurisdiction existed, the plaintiff also reiterated his claim that he is entitled to his father's share of the trust income. Because we conclude that the plaintiff is not entitled to his father's share of the trust income, his claims in the probate action are moot, and we will not address them. "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). Section 115 of the Restatement (First) of Property provides: "When an otherwise effective conveyance creates concurrent estates for life held as a tenancy in common, and also creates a future estate limited to take effect on the death of the survivor of the expressly designated life tenants, then, in the absence of a manifestation of an inconsistent intent, such conveyance also creates in favor of each such life tenant a remainder estate for life in the share of each other such life tenant, which remainder takes effect in possession only if the first life tenant outlives the life tenant as to whose share such remainder estate is created." 1 Restatement (First), Property § 115, p. 359 (1936). Comment (c) (3) to § 49 of the Restatement (Third) of Trusts provides in relevant part: "Where the terms of the trust make no express provision for the situation, the normal inference is that the settlor intended the income share to be paid to the issue (if any) of the deceased income beneficiary in the typical case of this type in which the remainder is to pass to the descendants of the income beneficiaries upon the survivor's death. This presumed result applies whether or not the beneficiaries are described in class terminology. It may appear from language of the trust or the circumstances, however, that the settlor would have preferred: (i) that the income be paid to or divided among the surviving income beneficiary or beneficiaries (as 'cross remainder'), even if the beneficiaries are not described as a class...." 2 Restatement (Third), Trusts § 49, comment (c) (3), p. 247 (2003). Comment (e) (1) to § 26.9 of the Restatement (Third) of Property provides in relevant part: "A gap potentially arises if the terms of the trust direct that the trust principal is to be distributed on the death of the last living income beneficiary, and if the terms of the trust make no express provision for the distribution of the share income that a deceased income beneficiary other than the last living income beneficiary had been receiving.... "A gap arises if the income beneficiary's income interest is limited to the beneficiary's lifetime. The traditional rule of construction is that the gap is filled by an implied cross remainder to the living income beneficiary or beneficiaries. See Restatement [ (First) ] of Property § 115 ; Illustration 3. An exception, however, arises if the remainder in trust principal is to pass to the issue of the beneficiaries upon the survivor's death. In such a case, filling the gap by implying an income interest in favor of the deceased beneficiary's issue from time to time living would be more consistent with the transferor's overall plan of disposition." 3 Restatement (Third), Property § 26.9, comment (e) (1), p. 541 (2011).

12488054

STATE of Connecticut v. Lisa WHITNUM-BAKER

State v. Whitnum-Baker

2016-11-29

AC 38327

1174

1176

150 A.3d 1174

150

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

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

Fastcase

STATE of Connecticut v. Lisa WHITNUM-BAKER

STATE of Connecticut v. Lisa WHITNUM-BAKER AC 38327 Appellate Court of Connecticut. Argued September 15, 2016 Officially released November 29, 2016 Lisa Whitnum-Baker, self-represented, the appellant (defendant). Nancy L. Walker, deputy assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, Jacob L. McChesney, former special deputy assistant state's attorney, and John R. Whalen, supervisory assistant state's attorney, for the appellee (state). Beach, Sheldon and Gruendel, Js.

1205

7681

PER CURIAM. The defendant, Lisa Whitnum-Baker, appeals from the judgment of conviction, rendered after a trial to the court, of creating a public disturbance in violation of General Statutes § 53a-181a. On appeal, the defendant claims that there was insufficient evidence to convict her of creating a public disturbance. We affirm the judgment of the trial court. The court reasonably could have found the following facts. On April 24, 2014, the defendant entered the Stamford Courthouse Law Library. After an argument ensued between the defendant and another library patron, the librarian requested assistance from a state marshal, Patrick Valcourt, who was posted in the hallway immediately outside of the library. Valcourt entered the library, observed the defendant arguing loudly, and instructed her to stay away from the other patron. Because the defendant was uncooperative, Valcourt, with other marshals then present, began to escort her out of the library. While being escorted, the defendant began yelling loudly and attempted to bite Valcourt's arm. The supervising marshal who observed the attempted bite then ordered that the defendant be handcuffed and detained. Once the defendant was properly restrained, the marshals escorted her out of the library to the detention area, where she was held until she was arrested by state police on the charge of breach of the peace in the second degree, in violation of General Statutes § 53a-181. The state later filed a substitute information charging the defendant with creating a public disturbance in violation of § 53a-181a. On appeal, the defendant claims that there was insufficient evidence to support her conviction for creating a public disturbance in violation of § 53a-181a (a) because the state failed to prove all essential elements of the crime beyond a reasonable doubt. Specifically, the defendant contends that the trial court erred by not crediting her testimony about the events leading up to her arrest, which, she asserts, disproves the state's evidence. We disagree. We first set forth our standard of review and the relevant law. "The appellate standard of review of sufficiency of the evidence claims is well established. In reviewing a sufficiency [of the evidence] claim, we apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.... "The evidence must be construed in a light most favorable to sustaining the [court's] verdict.... Our review is a fact based inquiry limited to determining whether the inferences drawn by the [fact finder] are so unreasonable as to be unjustifiable.... [T]he inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt does not require a court to ask itself whether it believes that the evidence . established guilt beyond a reasonable doubt.... Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.... "We do not sit as a [seventh] juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. We have not had the [fact finder's] opportunity to observe the conduct, demeanor, and attitude of the witnesses and to gauge their credibility. . We are content to rely on the [fact finder's] good sense and judgment." (Internal quotation marks omitted.) State v. Serrano , 91 Conn.App. 227, 241-42, 880 A.2d 183, cert. denied, 276 Conn. 908, 884 A.2d 1029 (2005). General Statutes § 53a-181a (a) provides: "A person is guilty of creating a public disturbance when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he (1) engages in fighting or in violent, tumultuous or threatening behavior, or (2) annoys or interferes with another person by offensive conduct; or (3) makes unreasonable noise." " 'Violent' is defined as 'characterized by extreme force' and 'furious or vehement to the point of being improper, unjust, or illegal.' . 'Threatening' is defined as a 'promise [of] punishment' or, 'to give signs of the approach of (something evil or unpleasant).' . When two or more words are grouped together, it is possible to ascertain the meaning of a particular word by reference to its relationship with other associated words and phrases under the doctrine of noscitur a sociis.... Placed within the context of the other words in the statute, the word 'threatening' takes on a more ominous tone. The statute proscribes 'engaging in fighting or in violent, tumultuous, or threatening behavior.' . [T]he language of subdivision (1) . 'violent, tumultuous or threatening behavior,' evinces a legislative intent to proscribe conduct which actually involves physical violence or portends imminent physical violence." (Citations omitted.) State v. Lo Sacco , 12 Conn.App. 481, 490-91, 531 A.2d 184, cert. denied, 205 Conn. 814, 533 A.2d 568 (1987). In the present case, our review of the record in the light most favorable to sustaining the verdict discloses that sufficient evidence was presented to support beyond a reasonable doubt the court's finding that the defendant created a public disturbance. Evidence in the record reveals that the defendant engaged in violent and threatening behavior toward Valcourt when she attempted to bite his arm. The evidence submitted by the defendant does not disprove that the defendant attempted to bite Valcourt's arm, but merely questions the timing of the events. In essence, the defendant argues that the court erred by failing to credit her testimony over that of the marshals who had witnessed the attempted biting. "Questions of whether to believe or to disbelieve a competent witness are beyond our review." (Internal quotation marks omitted.) State v. Jagat , 111 Conn.App. 173, 178, 958 A.2d 206 (2008). Because the state presented evidence that the defendant engaged in threatening and violent behavior by attempting to bite the arm of a court marshal, the findings made by the court were supported by evidence in the record. Accordingly, we affirm the judgment of the trial court. The judgment is affirmed. Although the police record and information identify the defendant as Whitnum, in her pleadings and brief on appeal, the defendant has referred to herself as Whitnum-Baker, which is the name we use for a consistent record. Although the self-represented defendant did not explicitly state in her brief or at oral argument that she is appealing from her judgment of conviction on the basis of insufficiency of the evidence, the substance of her argument is that the court's verdict was not supported by sufficient evidence. Accordingly, our review of this appeal will focus solely on the issue of whether there was sufficient evidence in the record to convict the defendant.

12488110

CONNECTICUT NATIONAL MORTGAGE COMPANY v. Lise-Lotte KNUDSEN et al.

Conn. Nat'l Mortg. Co. v. Knudsen

2016-12-13

SC 19672

675

678

150 A.3d 675

150

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

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

Fastcase

CONNECTICUT NATIONAL MORTGAGE COMPANY v. Lise-Lotte KNUDSEN et al.

CONNECTICUT NATIONAL MORTGAGE COMPANY v. Lise-Lotte KNUDSEN et al. SC 19672 Supreme Court of Connecticut. Argued November 16, 2016 Officially released December 13, 2016 Lise-Lotte Knudsen, self-represented, the appellant (named defendant). Benjamin T. Staskiewicz, Hartford, for the appellee (plaintiff Wells Fargo Bank, N.A.). Eveleigh, McDonald, Espinosa, Robinson and Lavine, Js.

1563

9449

PER CURIAM. The original plaintiff, Connecticut National Mortgage Company, commenced this action in 1989 seeking to foreclose a mortgage on a parcel of real property that is owned by the named defendant, Lise-Lotte Knudsen, and is located in the town of Redding. Although the trial court had rendered a judgment of foreclosure in 1994, that judgment has been opened and modified several times over the years. Eventually, on August 20, 2012, the plaintiff Wells Fargo Bank, N.A., was substituted as the plaintiff. On June 8, 2015, the trial court rendered a new judgment of strict foreclosure that extended the defendant's law day to August 4, 2015. On June 17, 2015, the defendant filed a motion for permission to file a motion to vacate the new judgment, which was denied on June 18, 2015. The defendant appealed to the Appellate Court on June 26, 2015, within the twenty day appeal periods triggered by both the new judgment and the denial of the defendant's subsequent motion. The Appellate Court, acting on its own motion, then ordered the parties to appear "and give reasons, if any, why [the] appeal should not be dismissed as moot because title vested in the plaintiff by the passing of the law days and the defendant's appeal following the denial of her [motion] on June 18, 2015, did not stay the passing of the law days. See . Practice Book § 61-11(g)." (Citations omitted.) Practice Book § 61-11(g) became effective on October 1, 2013. That provision was enacted to put a stop to the " 'perpetual motion machine' " and accompanying appellate litigation generated when a defendant files serial motions to open a judgment of strict foreclosure and, each time a motion to open is denied, files a new appeal from the judgment denying the motion to open. Citigroup Global Markets Realty Corp. v. Christiansen , 163 Conn.App. 635, 639, 137 A.3d 76 (2016). When no automatic appellate stay is in effect, there is nothing to prevent the law days from passing, rendering a pending appeal from a judgment of strict foreclosure moot. Argent Mortgage Co., LLC v. Huertas , 288 Conn. 568, 574-75, 953 A.2d 868 (2008). It is undisputed that the defendant's June 17, 2015 motion was a "subsequent contested motion" as contemplated by § 61-11(g), and that it was unaccompanied by an affidavit of good cause. The Appellate Court dismissed the defendant's appeal on January 13, 2016, apparently determining that, because no automatic appellate stay was triggered on the denial of that motion, no appellate stay prevented the law day from passing on August 4, 2015, such that title had vested irrevocably in the plaintiff and the defendant's appeal was therefore moot. The plaintiff sought reconsideration of the judgment of dismissal. The Appellate Court dismissed the motion for reconsideration on January 29, 2016. On March 9, 2016, we granted the defendant's petition for certification based on the following question: "Did the Appellate Court properly dismiss the appeal in this matter as moot?" Connecticut National Mortgage Co. v. Knudsen , 320 Conn. 926, 926-27, 133 A.3d 458 (2016). In the present case, the trial court granted the defendant's motion to open the judgment on June 8, 2015, and extended the law day to August 4, 2015. On June 26, 2015, the defendant filed an appeal to the Appellate Court, which was within twenty days of the trial court's June 8, 2015 decision. The defendant's appeal was filed prior to the law day and title never passed to the plaintiff. Moreover, the defendant's appeal was timely because it was filed within the applicable twenty day appeal period. See Practice Book § 63-1(a). The Appellate Court apparently characterized this appeal as one taken from the judgment denying the defendant's June 17, 2015 motion which, pursuant to Practice Book § 61-11(g), did not give rise to an automatic stay. However, this appeal was filed within the twenty day appeal period for both the order denying the defendant's June 17, 2015 motion and the June 8, 2015 judgment that set a new law date. The June 8, 2015 judgment triggered an automatic stay because it was an appealable final judgment, and the defendant's filing of this appeal within twenty days of that judgment continued the stay "until the final determination of [this appeal]." Practice Book § 61-11(a). Both parties have argued that the Appellate Court's order of dismissal should be reversed and that the case should be remanded to that court for further proceedings. We agree. An "automatic" appellate stay of proceedings to enforce the judgment went into effect on June 8, 2015, when the trial court rendered a new judgment of strict foreclosure setting a law date of August 4, 2015. See Practice Book § 61-11(a). Because the defendant appealed within twenty days of that judgment, the automatic stay was in effect on August 4, 2015, and will continue in effect until the "final determination of the [appeal]." Practice Book § 61-11(a). Since the appellate stay prevented title from vesting in the plaintiff by operation of law when the defendant failed to exercise her right of redemption on August 4, 2015, the case should not have been dismissed by the Appellate Court as moot. The judgment of the Appellate Court is reversed and the case is remanded to that court for further proceedings according to law. We note that Knudsen's name has changed during the pendency of this action. See Lind - Larsen v. Fleet National Bank of Connecticut, 84 Conn.App. 1, 3 n.1, 852 A.2d 799, cert. denied, 271 Conn. 940, 861 A.2d 514 (2004). We also note that, although additional parties with interests in the property subordinate to the mortgage at issue have also been named as defendants in the present case, these parties are not relevant to this appeal. In the interest of consistency with the original pleadings, we hereinafter refer to Knudsen as the defendant. We note that, although several other parties have been substituted as the plaintiff in the present action as the result of successive assignments, none of those parties are relevant to the present appeal. In the interest of simplicity, we hereinafter refer to Wells Fargo Bank, N.A., as the plaintiff. Practice Book § 63-1(a) provides in relevant part that "[u]nless a different time period is provided by statute, an appeal must be filed within twenty days of the date notice of the judgment or decision is given. ." This is the defendant's sixth appeal in this foreclosure action. The Appellate Court's order also cited General Statutes § 49-15, which provides in relevant part that a judgment of strict foreclosure shall not be opened "after the title has become absolute in any encumbrancer ." Finally, the order cited Appellate Court precedent establishing that an appeal from a judgment of strict foreclosure is rendered moot when, during the pendency of the appeal, the law days pass and title lawfully vests in the foreclosing party. See Ocwen Federal Bank, FSB v. Charles, 95 Conn.App. 315, 321-25, 898 A.2d 197, cert. denied, 279 Conn. 909, 902 A.2d 1069 (2006) ; Barclays Bank of New York v. Ivler, 20 Conn.App. 163, 166-68, 565 A.2d 252, cert. denied, 213 Conn. 809, 568 A.2d 792 (1989). Supreme Court precedent also establishes that an appeal from a judgment of strict foreclosure is moot when the law days pass, the rights of redemption are cut off, and title becomes " 'unconditional' " in the plaintiff. Argent Mortgage Co., LLC v. Huertas, 288 Conn. 568, 574-75, 953 A.2d 868 (2008). Practice Book § 61-11(g) provides in relevant part: "In any action for foreclosure in which the owner of the equity has filed, and the court has denied, at least two prior motions to open or other similar motion, no automatic stay shall arise upon the court's denial of any subsequent contested motion by that party, unless the party certifies under oath, in an affidavit accompanying the motion, that the motion was filed for good cause arising after the court's ruling on the party's most recent motion. ." "Prior to [the effective date of Practice Book § 61-11(g) ], a defendant in a foreclosure action could employ consecutive motions to open the judgment in tandem with Practice Book § 61-11 and 61-4 'to create almost the perfect perpetual motion machine.' " Citigroup Global Markets Realty Corp. v. Christiansen, 163 Conn.App. 635, 639, 137 A.3d 76 (2016). The denial of a motion to open a judgment of strict foreclosure is an appealable final judgment itself and distinctly appealable from the underlying judgment. See Farmers & Mechanics Savings Bank v. Sullivan, 216 Conn. 341, 356 n.10, 579 A.2d 1054 (1990). A hearing on the Appellate Court's "own motion" was scheduled on January 13, 2016, and the Appellate Court dismissed the appeal after both the defendant and the plaintiff failed to appear. Practice Book § 61-11(a) provides in relevant part that "proceedings to enforce or carry out the judgment or order shall be automatically stayed until the time to file an appeal has expired. If an appeal is filed, such proceedings shall be stayed until the final determination of the cause. ."

12489817

AMERICAN TAX FUNDING, LLC, et. al. v. AAAA LEGAL SERVICES, P.C., et. al.

Am. Tax Funding, LLC v. AAAA Legal Servs., P.C.

2017-03-21

No. 38547

671

671

161 A.3d 671

161

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

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

Fastcase

AMERICAN TAX FUNDING, LLC, et. al. v. AAAA LEGAL SERVICES, P.C., et. al.

AMERICAN TAX FUNDING, LLC, et. al. v. AAAA LEGAL SERVICES, P.C., et. al. No. 38547 Appellate Court of Connecticut. Submitted on briefs March 21, 2017 Officially released April 18, 2017

36

223

Per Curiam. The judgment is affirmed.

12502851

A BETTER WAY WHOLESALE AUTOS, INC. v. Shannon GAUSE

A Better Way Wholesale Autos, Inc. v. Gause

2018-09-11

AC 40033

747

752

195 A.3d 747

195

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

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

Fastcase

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

A BETTER WAY WHOLESALE AUTOS, INC. v. Shannon GAUSE

A BETTER WAY WHOLESALE AUTOS, INC. v. Shannon GAUSE AC 40033 Appellate Court of Connecticut. Argued May 29, 2018 Officially released September 11, 2018 Kenneth A. Votre, New Haven, for the appellant (plaintiff). Richard F. Wareing, Hartford, with whom was Daniel S. Blinn, Rocky Hill, for the appellee (defendant). DiPentima, C.J., and Moll and Harper, Js.

2229

14175

PER CURIAM. The plaintiff, A Better Way Wholesale Autos, Inc., appeals from the judgment of the trial court denying its application to vacate an arbitration award and granting the motion to confirm that award in favor of the defendant, Shannon Gause. The plaintiff claims that the court erred because the arbitrator's award of punitive damages constituted a manifest disregard of the law pursuant to General Statutes § 52-418 (a) (4). We affirm the judgment of the court. The record reveals the following undisputed facts. The arbitration arose from the defendant's March 8, 2014 purchase of a 2004 Cadillac SRX automobile from the plaintiff, an automotive dealer engaged in selling used cars. After purchasing the vehicle, the defendant discovered that the plaintiff had failed to disclose that the vehicle was a manufacturer buyback. Upon this discovery, the defendant requested copies of the purchase order from the plaintiff but was denied. Subsequently, the defendant was forced to spend additional money to repair the vehicle's defects. The defendant brought an arbitration claim against the plaintiff on May 6, 2016, alleging violations of numerous state and federal laws in connection with the sale. In his decision, the arbitrator found that the vehicle did not have a windshield sticker or any other conspicuous display disclosing the vehicle's status as a manufacturer buyback, as required by General Statutes § 42-179 (g) (1) and § 42-179 -9 of the Regulations of Connecticut State Agencies. The arbitrator also found that the purchase order for the vehicle failed to clearly and conspicuously disclose the vehicle's status as a manufacturer buyback, also required by § 42-179 (g) (1) and § 42-179-9 of the Regulations of Connecticut State Agencies. On the basis of these findings, as well as identifying a Federal Trade Commission violation and other defects, the arbitrator concluded that the plaintiff had violated the Connecticut Unfair Trade Practices Act (CUTPA), specifically General Statutes § 42-110b (c). The arbitrator awarded the defendant $1279 in compensatory damages, $5000 in punitive damages, and $10,817.02 in attorney's fees and costs, amounting to a total award of $17,096.02. The plaintiff subsequently filed an application to vacate and the defendant filed a motion to confirm the award with the Superior Court. In a memorandum of decision dated December 30, 2016, the court found that the factual and legal allegations the defendant made in her arbitration submission supported the award. The court determined that the arbitrator's decision did not "represent an egregious misperformance of duty or a patently irrational application of legal principles." Accordingly, the court concluded that there was no manifest disregard of the law and, subsequently, granted the defendant's motion to confirm the arbitration award and denied the plaintiff's application to vacate. This appeal followed. Before turning to the merits of the appeal, we must first address the defendant's claim that this appeal is moot because the plaintiff failed to oppose her motion to confirm the award. We reject this argument. "It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow." (Internal quotation marks omitted.) Shays v. Local Grievance Committee , 197 Conn. 566, 571, 499 A.2d 1158 (1985). " General Statutes § 52-417 provides that in ruling on an application to confirm an arbitration award, the court or judge shall grant such an order confirming the award unless the award is vacated, modified or corrected as prescribed in [ General Statutes § 52-418 and 52-419.... The trial court lacks any discretion in confirming the arbitration award, unless the award suffers from any of the defects described in . § 52-418 and 52-419." (Emphasis omitted; footnotes omitted; internal quotation marks omitted.) Amalgamated Transit Union Local 1588 v. Laidlaw Transit, Inc. , 33 Conn. App. 1, 3-4, 632 A.2d 713 (1993) ; see also General Statutes § 52-418 and 52-419. The plaintiff commenced this special statutory proceeding by filing an application to vacate pursuant to § 52-418 prior to the defendant's filing her motion to confirm. The motion to confirm would have been denied had the application to vacate been granted. Thus, the plaintiff could obtain practical relief through a reversal of the court's decision denying the application to vacate. Accordingly, the plaintiff's claim is not moot. We turn to the plaintiff's claim that the arbitrator's award of punitive damages constituted a manifest disregard of the law pursuant to § 52-418 (a) (4). The arbitration in this case was an unrestricted submission. Of the three grounds that our Supreme Court has recognized for vacating an award based on an unrestricted submission, the plaintiff argues only that "the award contravenes one or more of the statutory proscriptions of § 52-418." Garrity v. McCaskey , 223 Conn. 1, 6, 612 A.2d 742 (1992). "[A] claim that the arbitrators have exceeded their powers may be established under § 52-418 in either one of two ways: (1) the award fails to conform to the submission, or, in other words, falls outside the scope of the submission; or (2) the arbitrators manifestly disregarded the law." (Internal quotation marks omitted.) Harty v. Cantor Fitzgerald & Co. , 275 Conn. 72, 85, 881 A.2d 139 (2005). "A trial court's decision to vacate an arbitrator's award under § 52-418 involves questions of law and, thus, we review them de novo." Bridgeport v. Kasper Group., Inc. , 278 Conn. 466, 475, 899 A.2d 523 (2006). To vacate an arbitration award on the ground that the arbitrator manifestly disregarded the law, three elements must be met: "(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." (Internal quotation marks omitted.) Industrial Risk Insurers v. Hartford Steam Boiler Inspection & Ins. Co. , 273 Conn. 86, 95, 868 A.2d 47 (2005). Applying these elements, we disagree with the plaintiff that the award of punitive damages constituted a manifest disregard of the law. Awarding punitive damages under CUTPA is discretionary. General Statutes § 42-110g (a). The arbitrator found that the plaintiff's failure to display prominently the manufacturer buyback disclosure on the vehicle and in the purchase order constituted a per se violation of CUTPA. The plaintiff conceded that this failure constituted a statutory violation, both in its appellate brief and during oral argument before this court. The arbitrator concluded that such violations, in addition to the plaintiff's actions of restricting the defendant from testing the vehicle, inducing the defendant to execute the purchase documents before inspection, and attempting to deliver a vehicle that failed to meet safety standards, constituted a reckless indifference of the defendant's rights to warrant punitive damages under CUTPA. See Ulbrich v. Groth , 310 Conn. 375, 446, 78 A.3d 76 (2013) (punitive damages under CUTPA warranted where "bank's failure to inform the plaintiffs that . personal property located at the . facility at the time of the auction was not included in the sale . involved a conscious decision to disregard acknowledged business norms"). Furthermore, the arbitrator acted within his discretion in crediting the defendant's evidence of the CUTPA violations against the plaintiff's lack of evidence in rebuttal. Thus, because the arbitrator's conclusions do not indicate an "extraordinary lack of fidelity to established legal principles," we cannot second-guess his conclusions. Garrity v. McCaskey , supra, 223 Conn. at 10, 612 A.2d 742 ; see, e.g., Industrial Risk Insurers v. Hartford Steam Boiler Inspection & Ins. Co. , supra, 273 Conn. at 96, 868 A.2d 47 ("[a]s we have stated . courts do not review the evidence or otherwise second-guess an arbitration panel's factual determinations when the arbitration submission is unrestricted"). We therefore conclude the court properly confirmed the arbitration award and denied the application to vacate the award. The judgment is affirmed. The plaintiff additionally claims that the award of a nearly 4 to 1 punitive to compensatory damages ratio "border[s] on a constitutional deprivation of property." During oral argument before this court, the plaintiff conceded that this ratio claim was not raised before the trial court; accordingly, the claim is unpreserved, and we will not address it. See, e.g., MBNA America Bank, N.A. v. Bailey , 104 Conn. App. 457, 468, 934 A.2d 316 (2007) ("[g]enerally, claims neither addressed nor decided by the trial court are not properly before an appellate tribunal"). General Statutes § 52-418 (a) provides in relevant part: "Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides . shall make an order vacating the award if it finds any of the following defects . (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made." Manufacturer buyback refers to a nonconforming motor vehicle, commonly referred as a "lemon," which is returned to the manufacturer due to a defect. General Statutes § 42-179 ; see Cagiva North America, Inc. v. Schenk , 239 Conn. 1, 6, 680 A.2d 964 (1996) ("The Lemon Law [§ 42-179 et seq. ] is a remedial statute that protects purchasers of new passenger motor vehicles. It was designed to compel manufacturers of passenger motor vehicles to fulfill all express warranties made to consumers, and to facilitate a consumer's recovery against the manufacturer of a defective vehicle should a dispute arise."). The actual award of damages was $5000 in punitive damages and $1279 compensatory damages, which was slightly less than the 4 to 1 ratio that the plaintiff asserts in its appellate brief. The defendant additionally argues that the plaintiff failed to preserve the claim regarding the punitive damages awarded, thus precluding this court from reviewing that claim. We disagree and determine that the plaintiff sufficiently preserved this claim pursuant to Practice Book § 60-5. "[B]ecause our review is limited to matters in the record, we . will not address issues not decided by the trial court." (Internal quotation marks omitted.) Burnham v. Karl & Gelb, P.C. , 252 Conn. 153, 171, 745 A.2d 178 (2000). Although the plaintiff did not discuss the issue of punitive damages in its memorandum of law supporting its application to vacate, it did identify the awarding of punitive damages as an area of concern during oral argument on the application and the motion to confirm. Thus, such arguments are in the record. Furthermore, we can properly review the plaintiff's argument because it is an argument, not a claim. See Michael T. v. Commissioner of Correction , 319 Conn. 623, 635 n.7, 126 A.3d 558 (2015) ("[w]e may . review legal arguments that differ from those raised before the trial court if they are subsumed within or intertwined with arguments related to the legal claim raised at trial" [internal quotation marks omitted] ). In the present case, the plaintiff's argument regarding punitive damages is subsumed within its legal claim raised before the trial court that the arbitrator's award was a manifest disregard of the law. See id. ; see also State v. Fernando A. , 294 Conn. 1, 31 n.26, 981 A.2d 427 (2009) ("[although] the plaintiff did not [previously] raise . all of the theories that he raises in his writ . those theories are related to a single legal claim, and . there is substantial overlap between these theories under the case law" [internal quotation marks omitted] ). As such, this argument is sufficiently intertwined with previous claims and properly preserved for appeal. To the extent that the plaintiff contends that its ratio claim; see footnote 1 of this opinion; is also subsumed or intertwined with its punitive damages claim, we disagree. The ratio claim is of a constitutional due process nature and not an argument within its claim under § 52-418. See, e.g., BMW of North America, Inc. v. Gore , 517 U.S. 559, 580-83, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996). Unrestricted submission refers to the type of arbitration agreement entered into by the parties. "A submission is unrestricted when . the parties' arbitration agreement contains no language restricting the breadth of issues, reserving explicit rights, or conditioning the award on court review." (Internal quotation marks omitted.) Industrial Risk Insurers v. Hartford Steam Boiler Inspection & Ins. Co. , 273 Conn. 86, 89 n.3, 868 A.2d 47 (2005). General Statutes § 42-110g (a) provides: "Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action in the judicial district in which the plaintiff or defendant resides or has his principal place of business or is doing business, to recover actual damages. Proof of public interest or public injury shall not be required in any action brought under this section. The court may, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper."

12486146

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

Cefaratti v. Aranow

2016-06-14

No. 19443.

752

778

141 A.3d 752

141

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

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

Fastcase

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

Lisa J. CEFARATTI v. Jonathan S. ARANOW et al. No. 19443. Supreme Court of Connecticut. Argued Jan. 21, 2016. Decided June 14, 2016. Kelly E. Reardon, with whom, on the brief, was Robert I. Reardon, Jr., New London, for the appellant. S. Peter Sachner, Middlebury, with whom, on the brief, was Amy F. Goodusky, Hartford, for the appellee. Jennifer L. Cox and Jennifer A. Osowiecki, Hartford, filed a brief for the Connecticut Hospital Association as amicus curiae. Alinor C. Sterling, Cynthia C. Bott, Bridgeport, and Kathryn Calibey, Hartford, filed a brief for the Connecticut Trial Lawyers Association as amicus curiae. ROGERS, C.J., and PALMER, ZARELLA, McDONALD, ESPINOSA, ROBINSON and VERTEFEUILLE, Js.

15549

96999

ROGERS, C.J. The primary issue that we must resolve in this certified appeal is whether this court should recognize the doctrine of apparent agency in tort actions, under which a principal may be held vicariously liable for the negligence of a person whom the principal has held out as its agent or employee. The plaintiff, Lisa J. Cefaratti, brought a medical malpractice 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 during the surgery and vicariously liable for Aranow's negligence, because Middlesex had held Aranow out to the public as its agent or employee. Thereafter, Middlesex filed a motion for summary judgment claiming, among other things, 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). We answer that question in the negative. We also conclude that, because we are adopting a new standard for establishing an apparent agency in tort actions, the case must be remanded to the trial court to provide the plaintiff with an opportunity to establish that there is a genuine issue of material fact as to each element of the doctrine. 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. At some point prior to December, 2003, the plaintiff decided that she wanted to undergo gastric bypass surgery. The plaintiff knew that Aranow performed this type of surgery because he had performed the procedure on her partner's mother, with very good results. The plaintiff researched the matter and determined that Aranow was considered to be the best gastric bypass surgeon in the state. Before Aranow would accept the plaintiff as a patient and perform the surgery, the plaintiff was required to attend a seminar that Aranow conducted at Middlesex. In addition, she attended a number of informational sessions at Middlesex that were conducted by Aranow's staff. The plaintiff received a pamphlet at one of the informational sessions that had been prepared by Middlesex and that stated that "the health care team who will be caring for you has developed an education program that is full of important information." In addition, the pamphlet stated that "[t]he team will go over every aspect of your stay with us. We will discuss what you should do at home before your operation, what to bring with you, and events on the day of surgery." The plaintiff assumed that Aranow was an employee of Middlesex because he had privileges there, and she relied on this belief when she chose to undergo surgery at Middlesex. On December 8, 2003, Aranow performed gastric bypass surgery on the plaintiff at Middlesex. 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. Thereafter, the plaintiff brought a medical malpractice action alleging, among other things, that Aranow had negligently failed to remove the surgical sponge from her abdominal cavity during the gastric bypass surgery and that Middlesex was vicariously liable for Aranow's negligence because it had held Aranow out as its agent or employee. Middlesex then filed a motion for summary judgment in which it contended that the plaintiff's claim of vicarious liability was barred because Middlesex was not Aranow's employer and the doctrine of apparent authority is not recognized as a basis for tort liability in this state as a matter of law. The plaintiff objected to Middlesex' motion for summary judgment claiming that, contrary to its contention, the doctrine of apparent agency has been recognized in this state. The plaintiff also contended that there was a genuine issue of material fact as to whether Middlesex had held out Aranow as its agent or employee and whether the plaintiff had acted in reliance on her belief that that was the case. Relying on the Appellate Court's decision in L & V Contractors, LLC v. Heritage Warranty Ins. Risk Retention Group, Inc., 136 Conn.App. 662, 47 A.3d 887 (2012), the trial court concluded that the doctrine of apparent agency has not been recognized in this state. See id., at 670, 47 A.3d 887 ("this court has held that the doctrine of apparent authority cannot be used to hold a principal liable for the tortious actions of its alleged agent"). Accordingly, the trial court concluded that the plaintiff's claim of vicarious liability against Middlesex was barred as a matter of law and it rendered summary judgment for Middlesex on that claim. The plaintiff appealed to the Appellate Court, which affirmed the judgment of the trial court. Cefaratti v. Aranow, supra, 154 Conn.App. at 45, 105 A.3d 265. This certified appeal followed. The plaintiff claims on appeal that the Appellate Court improperly concluded that the doctrine of apparent agency has not been recognized in the state as a basis for vicarious liability in actions sounding in tort. Middlesex contends that, to the contrary, the plaintiff has confused the doctrine of apparent authority, which expands the authority of an actual agent, with the doctrine of apparent agency, which creates an agency relationship that would not otherwise exist, and the Appellate Court properly held that the doctrine of apparent agency has been expressly rejected as a basis for tort liability in this state. Middlesex further contends that, even if the doctrine of apparent agency is generally applicable in tort actions, hospitals may not be held vicariously liable for the medical malpractice of their agents or apparent agents. Finally, Middlesex contends that, even if hospitals may be held vicariously liable for medical malpractice, the plaintiff has failed to establish the elements of the doctrine in the present case. "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). We begin our analysis with a review of our cases involving the doctrines of apparent agency and apparent authority. The first case to come before this court involving the application of the doctrine of apparent authority in a tort action was Fireman's Fund Indemnity Co. v. Longshore Beach & Country Club, Inc., 127 Conn. 493, 18 A.2d 347 (1941). In that case, the named defendant, Longshore Beach and Country Club, Inc. (country club), employed certain persons to park club members' cars upon their arrival and to retrieve the cars when the members departed. Id., at 494, 18 A.2d 347. The country club also employed James Plant as a watchman. Id., at 495, 18 A.2d 347. The parking attendants wore green uniforms, while Plant wore a blue one. Id. A club member, Fred Giorchino, was about to leave the club and asked Plant if he could drive. When Plant replied that he could, Giorchino offered Plant a tip to retrieve his car for him. Id. Plant agreed, but never returned with the car. Ultimately, the car was found submerged in nearby waters, with Plant in the driver's seat, drowned. Id. The plaintiff, which had insured Giorchino's car, brought a subrogation action against the country club and its operators contending that they were liable for Plant's negligence because he was "acting either within the scope of [the country club's] implied or [its] apparent authority." Id., at 496, 18 A.2d 347. The trial court concluded that, to the contrary, Plant was acting as Giorchino's agent and, accordingly, it rendered judgment for the defendants. Id. On appeal, this court stated that "[a]pparent and ostensible authority is such authority as a principal intentionally, or by want of ordinary care, causes or allows a third person to believe that the agent possesses. This authority to act as agent may be conferred if the principal affirmatively or intentionally, or by lack of ordinary care, causes or allows third persons to act on an apparent agency. It is essential to the application of the above general rule that two important facts be clearly established: (1) that the principal held the agent out to the public as possessing sufficient authority to embrace the particular act in question, or knowingly permitted him to act as having such authority; and (2) that the person dealing with the agent knew of the facts and acting in good faith had reason to believe and did believe that the agent possessed the necessary authority. The apparent power of an agent is to be determined by the acts of the principal and not by the acts of the agent; a principal is responsible for the acts of an agent within his apparent authority only where the principal himself by his acts or conduct has clothed the agent with the appearance of authority, and not where the agent's own conduct has created the apparent authority. The liability of the principal is determined in any particular case, however, not merely by what was the apparent authority of the agent, but by what authority the third person, exercising reasonable care and prudence, was justified in believing that the principal had by his acts under the circumstances conferred upon his agent." (Internal quotation marks omitted.) Id., at 496-97, 18 A.2d 347. After setting forth these legal principles, this court concluded that, under the specific facts of the case, "Plant was not acting . even in the apparent or ostensible scope of his authority. The plaintiff failed to establish that the defendants held Plant out to the [country club] members as possessing sufficient authority to embrace the particular act in question, or knowingly permitted him to act as having such authority; or that Giorchino acting in good faith had reason to believe and did believe that Plant possessed the necessary authority. The defendants' liability is determined by what authority Giorchino, exercising reasonable care and prudence, was justified in believing that the defendants had by their acts under the circumstances conferred upon Plant. Giorchino's question whether Plant could drive a car, and his bargain with him are among the significant facts." Id., at 497-98, 18 A.2d 347. Accordingly, this court concluded that the defendants were not liable for Plant's negligence. Id., at 498, 18 A.2d 347. Despite the clear language of Fireman's Fund Indemnity Co., in which this court recognized the doctrine of apparent authority but rejected the plaintiff's claim because it had failed to establish the factual elements of that claim, the Appellate Court has subsequently suggested in a series of cases that that doctrine and the related doctrine of apparent agency have been rejected in this state as a matter of law. It was not until its decision in the present case that the Appellate Court finally recognized that this conflict exists. We agree that L & V Contractors, LLC v. Heritage Warranty Ins. Risk Retention Group, Inc., supra, 136 Conn.App. at 662, 47 A.3d 887, Davies v. General Tours, Inc., 63 Conn.App. 17, 774 A.2d 1063, cert. granted, 256 Conn. 926, 776 A.2d 1143 (2001) (appeal withdrawn October 18, 2001), and Mullen v. Horton, 46 Conn.App. 759, 700 A.2d 1377 (1997), cannot be reconciled with Fireman's Fund Indemnity Co., and must, therefore, be overruled. Although this court in Fireman's Fund Indemnity Co. did not expressly analyze the issue of whether the doctrine of apparent authority should apply, it clearly believed that the doctrine did apply in tort cases. Nothing in the language of this court's decision suggests that this court had merely assumed, without deciding, that the defendants could be held vicariously liable for the tortfeasor's negligence. Moreover, this court has characterized its decision in Fireman's Fund Indemnity Co. as "applying " the doctrine of apparent authority in a tort case. (Emphasis added.) Hanson v. Transportation General, Inc., 245 Conn. 613, 617 n. 5, 716 A.2d 857 (1998). Indeed, in the present case, Middlesex does not dispute that Fireman's Fund Indemnity Co. stands for the proposition that the doctrine of apparent authority may be applied in tort cases in this state. Rather, it contends that there is a distinction between the doctrine of apparent authority and the doctrine of apparent agency, and that Fireman's Fund Indemnity Co. recognized only the former. We agree with Middlesex that Fireman's Fund Indemnity Co. involved the doctrine of apparent authority, not the doctrine of apparent agency, and that there is a useful semantic distinction between the two doctrines. Specifically, the doctrine of apparent authority expands the authority of an actual agent, while the doctrine of apparent agency creates an agency relationship that would not otherwise exist. See footnote 6 of this opinion. We do not agree, however, that this distinction between the two doctrines justifies recognizing one, but not the other. As in many other jurisdictions, it has been the rule in this state for courts to use the terms apparent agency and apparent authority interchangeably. For example, in Fireman's Fund Indemnity Co. v. Longshore Beach & Country Club, Inc., supra, 127 Conn. at 496-97, 18 A.2d 347, a case in which an actual employment relationship existed between the defendants and the tortfeasor, this court first referred to the law governing "apparent authority" and then immediately noted that apparent authority may be found when the principal "causes or allows third persons to act on an apparent agency. " (Emphasis added.) In Davies v. General Tours, Inc., 63 Conn.App. 17, 31, 774 A.2d 1063, cert. granted, 256 Conn. 926, 776 A.2d 1143 (2001) (appeal withdrawn October 18, 2001), a case in which no actual agency relationship was established between the defendant and the tortfeasor, the Appellate Court referred to the "doctrine of agency by estoppel, or apparent authority ." (Emphasis added; internal quotation marks omitted.) Similarly, in L & V Contractors, LLC v. Heritage Warranty Ins. Risk Retention Group, Inc., supra, 136 Conn.App. at 669, 47 A.3d 887, the Appellate Court concluded that there was no actual agency relationship, but then referred to the plaintiff's claim under the doctrine of "apparent authority. " (Emphasis added.) See also City Bank of New Haven v. Throp, 78 Conn. 211, 217, 61 A. 428 (1905) (in contract case, "[w]hether the subject is treated as an agency by estoppel or as one of apparent or ostensible authority, the principle is the same, and the law is well settled" [emphasis added] ). Thus, the cases assume that the same policy considerations underlie both doctrines. Moreover, the Restatement (Third) of Agency now sets forth a single doctrine that expressly applies both to actual agents and to apparent agents. 1 Restatement (Third), Agency § 2.03 (2006). That Restatement (Third) provides: "Apparent authority is the power held by an agent or other actor to affect a principal's legal relations with third parties when a third party reasonably believes the actor has authority to act on behalf of the principal and that belief is traceable to the principal's manifestations." (Emphasis added.) Id.; see also id., comment (a), p. 113 ("[t]he definition in this section does not presuppose the present or prior existence of an agency relationship"); id., comment (b), p. 114 ("The doctrine stated in this section applies to agents and other actors who purport to act as agents on a principal's behalf. The doctrine also applies to the 'apparent authority' of actors who are agents but whose actions exceed their actual authority. Many judicial opinions use the terms 'apparent agency' and 'apparent authority' interchangeably." [Emphasis added.] ); 2 Restatement (Third), Agency § 7.08 (2006) (providing that principal is vicariously liable for tort committed by person with apparent authority as defined by § 2.03 ). Indeed, Middlesex has not identified a single case from any other jurisdiction in which the court has recognized the applicability of the doctrine of apparent authority in tort actions, but has refused to recognize the doctrine of apparent agency, and we decline to follow such a course here. As this court stated more than 100 years ago in the context of a contract case, regardless of whether there is an actual agency relationship between the defendant and the direct tortfeasor or only an apparent agency, if the defendant "has justified the belief of a third party that the person assuming to be his agent was authorized to do what was done, it is no answer for [the defendant] to say that no authority had been given, or that it did not reach so far, and that the third party had acted upon a mistaken conclusion.... If a loss is to be borne, the author of the error must bear it." (Internal quotation marks omitted.) City Bank of New Haven v. Throp, supra, 78 Conn. at 217, 61 A. 428 ; see also Alvarez v. New Haven Register, Inc., 249 Conn. 709, 720, 735 A.2d 306 (1999) ("The rules of vicarious liability . respond to a specific need in the law of torts: how to fully compensate an injury caused by the act of a single tortfeasor. Upon a showing of agency, vicarious liability increases the likelihood that an injury will be compensated, by providing two funds from which a plaintiff may recover. If the ultimately responsible agent is unavailable or lacks the ability to pay, the innocent victim has recourse against the principal." [Emphasis omitted; internal quotation marks omitted.] ); Mendillo v. Board of Education, 246 Conn. 456, 482, 717 A.2d 1177 (1998) ("the fundamental policy purposes of the tort compensation system [are] compensation of innocent parties, shifting the loss to responsible parties or distributing it among appropriate entities, and deterrence of wrongful conduct"), overruled on other grounds by Campos v. Coleman, 319 Conn. 36, 57, 123 A.3d 854 (2015). "Whether the subject is treated as an agency by estoppel or as one of apparent or ostensible authority, the principle is the same, and the law is well settled." City Bank of New Haven v. Throp, supra, at 217, 61 A. 428 ; see also Baptist Memorial Hospital System v. Sampson, 969 S.W.2d 945, 948 n. 2 (Tex.1998) ("[r]egardless of the term used, the purpose of the [various doctrines under which a principal who has held out a person as an agent may be held vicariously liable for the person's negligence] is to prevent injustice and protect those who have been misled"). Accordingly, we conclude that both the doctrine of apparent authority and the doctrine of apparent agency may be applied in tort actions. Middlesex claims, however, that a principal should not be held liable for the negligence of a person who was not an actual agent under the doctrine of apparent agency because "[a] necessary element of demonstrating that there is a principal and agent relationship is to show that the principal is in control." L & V Contractors, LLC v. Heritage Warranty Ins. Risk Retention Group, Inc., supra, 136 Conn.App. at 668, 47 A.3d 887 ; see also Tianti v. William Raveis Real Estate Inc., 231 Conn. 690, 696-97, 651 A.2d 1286 (1995) ("[i]t has long been established that [t]he fundamental distinction between an employee and an independent contractor depends upon the existence or nonexistence of the right to control the means and methods of work" [internal quotation marks omitted] ). Middlesex contends that it would be unfair to hold an entity responsible for conduct that it had no ability to prevent. Middlesex does not dispute, however, that a principal may be held liable under the doctrine of apparent authority for the acts of an actual agent who is acting beyond his or her authority, i.e., who is not acting under the control of the principal, when the principal's conduct has led the plaintiff reasonably to believe that the agent was acting within his or her authority and the plaintiff has detrimentally relied on that belief. We see no reason why a different rule should apply when the principal lacks control over an apparent agent. See D. Janulis & A. Hornstein, "Damned If You Do, Damned If You Don't: Hospitals' Liability For Physicians' Malpractice," 64 Neb. L.Rev. 689, 702 (1985) (requiring plaintiff to prove that principal controlled apparent agent in order to establish apparent agency blurs theories of respondeat superior and apparent agency). Middlesex also contends that, even if the doctrine of apparent agency may be applied in tort actions, "[a] hospital cannot practice medicine and therefore cannot be held directly liable for any acts or omissions that constitute medical functions." Reed v. Granbury Hospital Corp., 117 S.W.3d 404, 415 (Tex.App.2003) ; id. (when decision that resulted in plaintiff's injury "was one that only a physician could have made," hospital employer could not be held liable for it); see also Browning v. Burt, 66 Ohio St.3d 544, 556, 613 N.E.2d 993 (1993) ("[a] hospital does not practice medicine and is incapable of committing malpractice"). We again disagree. First, it appears that, to the extent that Reed stands for the proposition that a hospital cannot be held liable for the medical malpractice of its agents and employees, that case is inconsistent with the decision of the Texas Supreme Court in Baptist Memorial Hospital System v. Sampson, supra, 969 S.W.2d at 948 ; see id. ("[h]ospitals are subject to the principles of agency law which apply to others . [therefore] a hospital may be vicariously liable for the medical malpractice of independent contractor physicians when plaintiffs can establish the elements of ostensible agency" [citations omitted; internal quotation marks omitted] ); and Browning held only that hospitals cannot commit medical malpractice directly, not that they cannot be held vicariously liable for the medical malpractice of their agents, employees and apparent agents. See Comer v. Risko, 106 Ohio St.3d 185, 187, 833 N.E.2d 712 (2005) (hospital may be held liable for torts of employees under doctrine of respondeat superior and for torts of apparent agents under doctrine of agency by estoppel). Second, regardless of the rule in Texas and Ohio, it has never been the rule in this state that hospitals cannot be held vicariously liable for the medical malpractice of their agents and employees. To the contrary, this court, the Appellate Court and the Superior Courts have consistently assumed that the doctrine of respondeat superior may be applied to hold hospitals vicariously liable for the medical malpractice of their agents and employees. Because a hospital may be held vicariously liable for the medical malpractice of its agents and employees under the doctrine of respondeat superior, it may also be held vicariously liable under the doctrine of apparent agency. We next address Middlesex' claim that, even if hospitals may be held liable for the negligence of their agents and employees under the doctrine of apparent agency, the plaintiff in the present case cannot prevail on her claim because she has not established a genuine issue of material fact as to each element of the doctrine. Specifically, Middlesex contends that the plaintiff is required to, and cannot, prove that she detrimentally relied on Middlesex' representations that Aranow was its agent or employee. Cf. Menzie v. Windham Community Memorial Hospital, 774 F.Supp. 91, 97 (D.Conn.1991) (observing that application of doctrine of apparent authority to tort action is "rife with speculation, suggesting the need for a more definitive reading of Connecticut laws," but concluding that plaintiff failed to demonstrate genuine issue of material fact as to whether doctrine applied because he presented no evidence of reliance), vacated on other grounds, United States Court of Appeals, Docket No. 92-7350, 1993 WL 13754826 (2d Cir. February 8, 1993). The plaintiff contends that, to the contrary, our cases have consistently held that all that is required to establish apparent agency is proof: "(1) that the principal held the agent out to the public as possessing sufficient authority to embrace the particular act in question, or knowingly permitted him to act has having such authority; and (2) that the person dealing with the agent knew of the facts and acting in good faith had reason to believe, and did believe, that the agent possessed the necessary authority." (Internal quotation marks omitted.) Fireman's Fund Indemnity Co. v. Longshore Beach & Country Club, Inc., supra, 127 Conn. at 497, 18 A.2d 347 ; see also Beckenstein v. Potter & Carrier, Inc., 191 Conn. 120, 140-41, 464 A.2d 6 (1983) ("Apparent authority . must be determined by the acts of the principal rather than by the acts of the agent.... Furthermore, the party seeking to impose liability upon the principal must demonstrate that it acted in good faith based upon the actions or inadvertences of the principal." [Citations omitted; internal quotation marks omitted.] ). At oral argument before this court, the plaintiff further contended that there is a difference between the doctrine of apparent agency, on which she relies, and the doctrine of agency by estoppel, and that only agency by estoppel requires proof of detrimental reliance. Thus, the plaintiff contends, all that she is required to prove to establish apparent agency is that Middlesex held out Aranow as its employee or agent and that she actually, reasonably, and in good faith believed that to be the case. Although we agree with the plaintiff that our cases involving the doctrine of apparent agency have not required a showing of detrimental reliance, we note that all of the cases except Fireman's Fund Indemnity Co. involved contract actions, and Fireman's Fund Indemnity Co. adopted its standard from cases involving contract actions. It may be that proof of detrimental reliance has not been required to establish apparent agency in contract actions because such reliance is generally implicit in the conduct at issue. No such presumption of reliance arises in tort actions pursuant to the doctrine of apparent agency. See Fernander v. Thigpen, 278 S.C. 140, 148, 293 S.E.2d 424 (1982) ("[i]n the ordinary personal injury case the injured person does not rely upon authority of any kind in getting hurt"); D. Janulis & A. Hornstein, supra, at 64 Neb. L.Rev. 697 ("the required change of position suggests that the estoppel doctrine will generally be inapplicable in the typical personal injury case"), citing Stewart v. Midani, 525 F.Supp. 843, 851 (N.D.Ga.1981) ; Stewart v. Midani, supra, at 851 ("it cannot reasonably be contended that a motorist would be more likely to wish to collide with a truck bearing the insignia of [Texaco] than with one bearing any other insignia"). Accordingly, we believe that it is appropriate for us to consider as a matter of first impression whether the Fireman's Fund Indemnity Co. standard, which derives from contract actions, should apply in tort actions or, instead, proof of detrimental reliance is a required element of the doctrine of apparent agency in such cases. Unfortunately, as our inconsistent use of terminology in these contract cases suggests, this area of the law is rife with confusion. As one commentator has observed, "[a]lthough the doctrine of apparent agency [as applied in tort actions] is steeped in principles of estoppel, apparent agency and estoppel to deny agency are not theoretically identical. In practice, however, commentators and courts often use these terms as if they were interchangeable, causing confusion and possible misapplication of the law." (Footnotes omitted; internal quotation marks omitted.) D. Janulis & A. Hornstein, supra, at 64 Neb. L.Rev. 696. Indeed, having reviewed the relevant case law; see footnote 26 of this opinion; we are compelled to agree with these commentators that "it is difficult at times to discern whether a court is basing its finding of liability on estoppel, apparent agency, or on respondeat superior. It may be nigh impossible to decide which theory of agency a court is using to impose liability even when it discusses its rationale at length." D. Janulis & A. Hornstein, supra, at 697. The relevant portions of the various Restatements do not clarify the issue. See 1 Restatement (Second), Agency § 8 (1958) ; id., § 8B; id., § 267 ; 1 Restatement (Third), supra, § 2.03 ; 2 Restatement (Third), supra, § 7.08 ; 2 Restatement (Second), Torts § 429 (1965). Indeed, the conflicting terminology and standards set forth in these authorities, and the lack of clarity as to whether the provisions that are not tort specific were intended to or logically may be applied in tort actions, appear to be the source of much of the confusion in the cases applying the doctrine of apparent agency in that context. See footnote 26 of this opinion. Nevertheless, although their doctrinal underpinnings are not entirely clear, we ultimately are persuaded by the cases that have concluded that, under certain circumstances, proof of detrimental reliance is not required to establish an apparent agency in tort actions. Specifically, many courts, especially in cases seeking to hold a hospital vicariously liable for a physician's malpractice, have concluded that an apparent agency is established when the plaintiff proves that he or she looked to the principal to provide services and the principal, not the plaintiff, selected the specific person who actually provided the services and caused the plaintiff's injury. These courts have not required the plaintiff to establish detrimental reliance on the principal's representations that the tortfeasor was the principal's agent or employee, i.e., that the plaintiff would not have accepted the tortfeasor's services if the plaintiff had known that the tortfeasor was not the principal's agent. Indeed, many cases have held that the plaintiff is not even required to present affirmative evidence that he or she actually and reasonably believed that the tortfeasor was the principal's agent or employee. Rather, the cases appear to hold that such belief may be presumed from the fact that the plaintiff chose the principal and the principal chose the specific person who provided the services, and the fact the principal was the actual cause of the relationship between the plaintiff and the tortfeasor that resulted in injury is sufficient justification to apply the doctrine. See, e.g., Sword v. NKC Hospitals, Inc., 714 N.E.2d 142, 152 (Ind.1999) ("if the hospital has failed to give meaningful notice [that the provider of care was an independent contractor], if the patient has no special knowledge regarding the arrangement the hospital has made with its physicians, and if there is no reason that the patient should have known of these employment relationships, then reliance is presumed"). We find these cases persuasive for a number of reasons. First, cases in which the plaintiff accepted a principal's offer of services and the principal then chose the specific person who would provide the services have contractual overtones, and detrimental reliance is implicit in a contractual relationship. See 1 Restatement (Second), Torts, supra, § 8, comment (d), p. 33 ("it is not irrational to hold that merely entering into a contract is a change of position which would enable the third person to bring an action against the principal" for negligence of independent contractor employed by principal). Second, when an entity has held itself out as providing certain services to the public-and, indeed, may have made great efforts to persuade members of the public to avail themselves of those services, and benefited from doing so -and has selected the specific individual who will provide those services to particular members of the public, we do not believe that it is unfair to hold that entity liable for the individual's negligence. Third, and relatedly, holding principals liable under these circumstances is consistent with the fundamental purposes of the tort compensation system of deterring wrongful conduct and shifting the blame to the party who is in the best position to prevent the injury. See Mendillo v. Board of Education, supra, 246 Conn. at 482, 717 A.2d 1177 ; see also Kashishian v. Port, 167 Wis.2d 24, 45, 481 N.W.2d 277 (1992) (The court determined that holding a hospital liable under these circumstances "provides a stronger incentive to the hospital to monitor and control physicians. This will result in higher quality medical care since the hospital is in the best position to enforce strict adherence to policies regarding patient safety...."). We further conclude, however, that, when the plaintiff selected the specific person who provided the services and caused the injury on the basis of the plaintiff's knowledge of the person's skills and reputation, the plaintiff must demonstrate an actual and reasonable belief in the principal's representations that the person was its agent, and also detrimental reliance on those representations to establish apparent agency. See Orlando Executive Park, Inc. v. Robbins, 433 So.2d 491, 494 (Fla.1983) (elements of apparent agency in tort action are: "[1] a representation by the principal; [2] reliance on that representation by a third person; and [3] a change of position by the third person in reliance upon such representation to his detriment" [internal quotation marks omitted] ); Deal v. North Carolina State University, 114 N.C.App. 643, 647, 442 S.E.2d 360 (1994) ("[t]he common thread in the [tort] cases upholding the assertion of apparent agency is the plaintiff's desire to deal with the estopped party for some particular reason and the plaintiff acting because he believed he was dealing with the estopped party's agent" [internal quotation marks omitted] ); Watkins v. Mobil Oil Corp., 291 S.C. 62, 67, 352 S.E.2d 284 (App.1986) (To prove apparent agency in a tort action, "it is not enough simply to prove that the purported principal by either affirmative conduct or conscious and voluntary inaction has represented another to be his agent or servant. A party must also prove reliance upon the representation and a change of position to his detriment in reliance on the representation."); 1 Restatement (Second), Agency, supra, § 267 ("[o]ne who represents that another is his servant or other agent and thereby causes a third person justifiably to rely upon the care or skill of such apparent agent is subject to liability to the third person for harm caused by the lack of care or skill of the one appearing to be a servant or other agent as if he were such"). It would make little sense to hold a principal vicariously liable for the negligence of a person who was not an agent or an employee of the principal when the plaintiff would have dealt with the apparent agent regardless of the principal's representations. Accordingly, we adopt the following alternative standards for establishing apparent agency in tort cases. First, the plaintiff may establish apparent agency by proving that: (1) the principal held itself out as providing certain services; (2) the plaintiff selected the principal on the basis of its representations; and (3) the plaintiff relied on the principal to select the specific person who performed the services that resulted in the harm complained of by the plaintiff. Second, the plaintiff may establish apparent agency in a tort action by proving the traditional elements of the doctrine of apparent agency, as set forth in our cases involving contract claims, plus detrimental reliance. Specifically, the plaintiff may prevail by establishing that: (1) the principal held the apparent agent or employee out to the public as possessing the authority to engage in the conduct at issue, or knowingly permitted the apparent agent or employee to act as having such authority; (2) the plaintiff knew of these acts by the principal, and actually and reasonably believed that the agent or employee or apparent agent or employee possessed the necessary authority; see Fireman's Fund Indemnity Co. v. Longshore Beach & Country Club, Inc., supra, 127 Conn. at 496-97, 18 A.2d 347 ; and (3) the plaintiff detrimentally relied on the principal's acts, i.e., the plaintiff would not have dealt with the tortfeasor if the plaintiff had known that the tortfeasor was not the principal's agent or employee. We emphasize that this standard is narrow, and we anticipate that it will be only in the rare tort action that the plaintiff will be able to establish the elements of apparent agency by proving detrimental reliance. See Fernander v. Thigpen, supra, 278 S.C. at 148, 293 S.E.2d 424 ("[i]n the ordinary personal injury case the injured person does not rely upon authority of any kind in getting hurt"); D. Janulis & A. Hornstein, supra, at 64 Neb. L.Rev. 697 ("the required change of position suggests that the estoppel doctrine will generally be inapplicable in the typical personal injury case"), citing Stewart v. Midani, supra, 525 F.Supp. at 851 ; Stewart v. Midani, supra, at 851 ("it cannot reasonably be contended that a motorist would be more likely to wish to collide with a truck bearing the insignia of [Texaco] than with one bearing any other insignia"). There is no real dispute that the plaintiff in the present case cannot meet the first standard, and Middlesex claims that the plaintiff has not established detrimental reliance on its representations. Because we have adopted the detrimental reliance standard for the first time in this opinion, however, we believe that fairness requires us to remand the case to the trial court so that the plaintiff may have an opportunity to present evidence that she detrimentally relied on her belief that Aranow was Middlesex' agent or employee. We emphasize that, to meet this burden, the plaintiff must set forth facts and evidence capable of raising a reasonable inference that she would not have allowed Aranow to perform the surgery if she had known that he was not Middlesex' agent or employee. The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to remand the case to the trial court for further proceedings in accordance with this opinion. In this opinion PALMER, McDONALD and VERTEFEUILLE, Js., concurred. ZARELLA, J., with whom ESPINOSA and ROBINSON, Js., join, dissenting. In elementary school history, we are all taught that the legislature makes the law, the judiciary interprets the law, and the executive enforces the law. Those who are learned in the law, however, understand that this is an oversimplification of our constitutional order. Since before the founding, judges in England, from whom the judiciary takes many of its traditions, and this country, acting as stewards of the common law, have engaged in lawmaking. As such, judges, not legislators, at least in the early years of our republic, tended to the development of the law in such areas as property, contract, and tort. Thus, a disconnect exists between our elementary understanding of the separation and delegation of the powers and duties of government, on the one hand, and the actual allocation of work among the branches, on the other. In addition, there is a small area over which both the judiciary and the legislature have the authority to enact policy. In the beginning, such dual authority was relatively unproblematic. Legislatures largely dealt with public law, and the courts tended to private law. See, e.g., D. Farber & P. Frickey, "In the Shadow of the Legislature: The Common Law in the Age of the New Public Law," 89 Mich. L.Rev. 875, 876 (1991). In the age of the regulatory state and statutory proliferation, however, the legislature has become increasingly involved with private law; see, e.g., General Statutes § 30-102 (abrogating common-law negligence cause of action against purveyors of alcohol for injuries caused by intoxicated persons); General Statutes § 52-557d (abolishing common-law defense of charitable immunity); General Statutes § 52-572h (b), (c) and (l ) (eliminating, in certain cases, doctrine of contributory negligence, providing for proportionate, rather than joint and several, liability in cases involving multiple tortfeasors, and abolishing doctrines of last clear chance and assumption of risk); raising this pragmatic question: What is the role of the common-law judge in the era of the ever engaged legislature? The present case brings this question to the forefront. Before I reach that question, however, I must attend to a preliminary matter. The plaintiff in the present case, Lisa J. Cefaratti, claims that the Appellate Court incorrectly concluded that the doctrine of apparent agency does not extend to tort actions, thereby preventing her from holding the defendant Middlesex Hospital (hospital) vicariously liable for the alleged negligence of the named defendant, Jonathan S. Aranow, a surgeon who is not an employee of the hospital but who has privileges to and does perform surgeries at the hospital. The plaintiff argues that such conclusion is contrary to our holdings in Fireman's Fund Indemnity Co. v. Longshore Beach & Country Club, Inc., 127 Conn. 493, 496-97, 18 A.2d 347 (1941), which, she contends, recognized that the apparent agency doctrine is applicable to tort actions, and Hanson v. Transportation General, Inc., 245 Conn. 613, 617 n. 5, 716 A.2d 857 (1998), which, she argues, implicitly affirmed the doctrine's availability in tort cases. In response to the hospital's argument that this court has extended apparent authority to tort actions but has not, and should not, extend apparent agency to such cases, the plaintiff contends that this court's jurisprudence does not distinguish between the two doctrines. I need not decide whether our case law recognizes a difference between apparent agency and apparent authority or, if it does, whether such distinction provides a principled reason for applying one doctrine to tort actions but not the other. Instead, I conclude that this court has never decided whether either doctrine should be available to plaintiffs seeking to hold individuals or entities vicariously liable for the tortious conduct of another. I must, therefore, consider that question as a matter of first impression. In Fireman's Fund Indemnity Co., the plaintiff insurer brought a subrogation action against the defendant country club (club), among others, to recover for amounts the insurer had paid to its insured for damages caused to the insured's vehicle by an employee of the club. Fireman's Fund Indemnity Co. v. Longshore Beach & Country Club, Inc., supra, 127 Conn. at 493-94, 18 A.2d 347. The insurer claimed, among other things, that the club's employee was acting within his implied or apparent authority and, therefore, that the club could be held liable for the employee's negligence. See id., at 496, 18 A.2d 347. In addressing the insurer's argument, this court did not decide, or even discuss, whether the club could be held vicariously liable for the negligence of the employee under a theory of apparent authority. Instead, relying on two contract cases, namely, Quint v. O'Connell, 89 Conn. 353, 94 A. 288 (1915), and Zazzaro v. Universal Motors, Inc., 124 Conn. 105, 197 A. 884 (1938), the court in Fireman's Fund Indemnity Co. merely concluded that the insurer had not established that the employee was, in fact, acting within his apparent authority. Fireman's Fund Indemnity Co. v. Longshore Beach & Country Club, Inc., supra, at 496-97, 18 A.2d 347. The plaintiff claims that implicit in this holding is that the doctrines of apparent authority and apparent agency do apply to tort actions because, in the plaintiff's view, we would not have decided whether the employee had acted within his apparent authority if the doctrine did not apply. In a similar vein, and despite its acknowledgment that the court in Fireman's Fund Indemnity Co. "did not expressly analyze the issue," the majority in the present case concludes that Fireman's Fund Indemnity Co. applied the doctrine of apparent authority to tort actions. The majority reasons that the there is no language in Fireman's Fund Indemnity Co. to suggest that the court was simply assuming, without deciding, that the club could be held vicariously liable for the employee's negligence under that doctrine. In addition, the court in Hanson, the majority and the plaintiff argue, recognized Fireman's Fund Indemnity Co. as applying apparent authority in tort actions. Finally, the majority cites the hospital's acknowledgment that Fireman's Fund Indemnity Co. extended the doctrine of apparent authority to tort actions. I respectfully disagree with the plaintiff's and the majority's reading of Fireman's Fund Indemnity Co., and their rationales for such a reading. First, I doubt that this court adopted a liability expanding doctrine without some consideration and discussion. Generally, this court weighs the relevant policy considerations when deciding whether to expand or limit tort liability by adopting new doctrines or creating new causes of action. See, e.g., Campos v. Coleman, 319 Conn. 36, 57, 123 A.3d 854 (2015) (recognizing new cause of action for loss of parental consortium after evaluating relevant public policy factors and concluding that factors weigh in favor of recognizing such claim); Sic v. Nunan, 307 Conn. 399, 401, 412, 54 A.3d 553 (2012) (declining to recognize duty of driver to position wheels of vehicle straight while waiting to make left turn, noting that there were no "public policy concerns that would justify the imposition of new liability"); Craig v. Driscoll, 262 Conn. 312, 328-29, 813 A.2d 1003 (2003) (recognizing "a common-law negligence action for injuries caused by an intoxicated adult patron against purveyors of alcoholic liquor" because such action would supplement and further state's public policy goals as expressed through enactment of Dram Shop Act); Hamon v. Digliani, 148 Conn. 710, 716-18, 174 A.2d 294 (1961) (abolishing privity of contract requirement in breach of warranty cases, thereby laying foundation for strict product liability, noting that other jurisdictions have done so "on [the basis of] the public policy of protecting an innocent buyer from harm," and observing change in how products are delivered from manufacture to end consumer). In the absence of any indication that the court in Fireman's Fund Indemnity Co. gave any thought to the policy considerations implicated by a decision to extend liability to purported principals by adopting the doctrine of apparent authority in tort actions, I will not so readily assume that it did. Second, neither the plaintiff insurer nor the defendant club in Fireman's Fund Indemnity Co. briefed the issue of whether apparent authority should apply in tort actions; see generally Fireman's Fund Indemnity Co. v. Longshore Beach & Country Club, Inc., Conn. Supreme Court Records & Briefs, December Term, 1940, Pt. 1, Plaintiff's and Defendants' Briefs; and it is the policy of this court to refrain from addressing issues not raised by the parties. See, e.g., Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., 311 Conn. 123, 142, 84 A.3d 840 (2014) ("It is well settled that [o]ur case law and rules of practice generally limit [an appellate] court's review to issues that are distinctly raised at trial.... [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." [Citations omitted; internal quotation marks omitted.] ); see also id., at 128, 84 A.3d 840 (holding, "with respect to the propriety of a reviewing court raising and deciding an issue that the parties themselves have not raised, that the reviewing court [1] must do so when that issue implicates the court's subject matter jurisdiction, and [2] has the discretion to do so if [a] exceptional circumstances exist that would justify review of such an issue if raised by a party, [b] the parties are given an opportunity to be heard on the issue, and [c] there is no unfair prejudice to the party against whom the issue is to be decided"). Third, it is not uncommon for this court to avoid answering legal questions that do not affect the outcome of a case. See, e.g., State v. Bacon Construction Co., 300 Conn. 476, 480, 482, 15 A.3d 147 (2011) (assuming without deciding that Convalescent Center of Bloomfield, Inc. v. Dept. of Income Maintenance, 208 Conn. 187, 194-95, 544 A.2d 604 [ (1988) ], which allows immediate appeal from denial of collateral estoppel defense in context of administrative proceedings, should not be overruled because that case did not extend to prejudgment remedy proceeding). Thus, the plaintiff assumes too much in her assertion that the court in Fireman's Fund Indemnity Co. must have decided that the doctrine of apparent authority applies in tort cases because it decided that the plaintiff insurer had not established that the employee was acting within his apparent authority. Fourth, this court's cursory statement in Hanson, in a parenthetical in a footnote, that Fireman's Fund Indemnity Co. "appl [ied] similar [actual, implied, or apparent] agency principles in [a] tort action"; Hanson v. Transportation General, Inc., supra, 245 Conn. at 617 n. 5, 716 A.2d 857 ; does not transform Fireman's Fund Indemnity Co. into something it is not. As I have already explained, the court in Fireman's Fund Indemnity Co. merely decided that the plaintiff insurer had not established, as a factual matter, that the club employee was acting within his apparent authority. Fireman's Fund Indemnity Co. v. Longshore Beach & Country Club, Inc., supra, 127 Conn. at 496-97, 18 A.2d 347. It did not decide to apply that doctrine in a tort action. See id. Finally, we are not confined by the parties' mistaken readings of our case law, and, therefore, I find it irrelevant that the hospital in the present case also reads Fireman's Fund Indemnity Co. to hold that the doctrine of apparent authority applies in tort actions. Because Fireman's Fund Indemnity Co. does not apply the doctrine of apparent authority or apparent agency to tort actions, this court must decide in the present case, as a matter of first impression, whether such doctrine should be available to tort plaintiffs. Thus, I return to the question that I previously raised: What is the role of a common-law judge in the era of the ever engaged legislature? In this particular case, which involves the allocation of liability among the different functionaries in a complex and highly regulated industry, I believe it is wise to defer to the legislature to address this issue in the first instance. Of course, I do not dispute that this court has the authority to decide the issue presented, as I have framed it. Instead, I simply suggest that we should refrain from doing so, as a matter of prudence. This court has long espoused the principle that the legislature, and not this institution, shall set the policy of the state. See, e.g., Sic v. Nunan, supra, 307 Conn. at 410, 54 A.3d 553 (declining to recognize duty of "drivers to keep their wheels pointed in a particular direction when stopped at an intersection waiting to turn," in part because "it is undisputed that the legislature, which has the primary responsibility for formulating public policy . has not seen fit to enact any statutes requiring [such conduct]" [citation omitted; internal quotation marks omitted] ); see also General Motors Corp. v. Mulquin, 134 Conn. 118, 132, 55 A.2d 732 (1947) ("it is for the legislature, which is the arbiter of public policy, to determine what [public policy] shall be"); New Haven Metal & Heating Supply Co. v. Danaher, 128 Conn. 213, 222, 21 A.2d 383 (1941) ("the legislature determines the public policy of the state"); State v. Gilletto, 98 Conn. 702, 714, 120 A. 567 (1923) ("[t]he legislature is the arbiter of public policy"). I acknowledge, as I must, that many of these cases involved statutory law rather than the common law and, therefore, are different from the present case, which falls within the common-law sphere of torts. Nevertheless, we have also recognized, in a slightly different context, that "[i]t is not the role of this court to strike precise balances among the fluctuating interests of competing private groups"; Cologne v. Westfarms Associates, 192 Conn. 48, 65, 469 A.2d 1201 (1984) ; such as, on the one hand, people who are similarly situated to the plaintiff in the present case and, on the other hand, hospitals and other health-care institutions. "That function has traditionally been performed by the legislature, which has far greater competence and flexibility to deal with the myriad complications [that] may arise from" the assignment of liability. Id. Striking a balance between competing private interests and public policy considerations undoubtedly has been a function of the Legislative Branch due to its institutional aptitude to address such issues. There are a variety of questions that arise in the context of considering whether to expand liability and, relatedly, who should bear the burden for such liability. For example, in the present case, in determining whether hospitals should be vicariously liable for the malpractice of non-employee physicians and surgeons, a policy maker might desire a comprehensive understanding of general staffing arrangements at area hospitals, gather data regarding the number and outcomes of malpractice actions, and query the current remedies available to malpractice victims and the inadequacy, if any, of such remedies. Prior to making a determination, the decision maker might also consider General Statutes § 20-11b (a), which requires certain medical providers to maintain minimum liability insurance, and collect cases, if any exist, in which such minimum coverage was insufficient to adequately compensate patients who had been victims of medical malpractice. Additional factors ripe for consideration are (1) the impact such expansion of liability has had in other jurisdictions, on both hospital financing and medical malpractice actions, and (2) the myriad regulations that currently govern the health-care industry and health-care providers. Through public hearings, the legislature can collect data and receive testimony in regard to such matters from industry leaders and affected members of society, including the plaintiff's bar. The legislature may also consult outside experts and elicit input from state regulators. Moreover, the legislature can enact comprehensive reform, establishing the boundaries of liability and providing predictability to health-care institutions and their insurers. Finally, determining who should bear the burden for harm caused by medical malpractice is a value judgment, and the legislature, as an elected body, may be held accountable if the allocation it makes is not in line with societal values. In contrast, the Judicial Branch is ill equipped to methodically address questions of liability expansion with potentially far-reaching societal consequences. In answering such a question, courts are limited to the record created and the evidence introduced by the parties. See, e.g., West Farms Mall, LLC v. West Hartford, 279 Conn. 1, 27, 901 A.2d 649 (2006) (observing that appellate "review is limited to matters in the record"). Moreover, courts, unlike the legislature, are not free to consult outside sources and to collect their own data. Instead, they are confined by rules of judicial notice. See, e.g., Moore v. Moore, 173 Conn. 120, 121-22, 376 A.2d 1085 (1977) ("[o]ur own cases have attempted to draw a line between matters susceptible of explanation or contradiction, of which notice should not be taken without giving the affected party an opportunity to be heard . and matters of established fact, the accuracy of which cannot be questioned . which may be judicially noticed without affording a hearing" [citations omitted] ). In addition, courts are limited to deciding the cases and questions before them. Consequently, they develop policy on an ad hoc basis and on the basis of the facts presented in each case, which creates uncertainty. The present case provides an example. Despite holding that hospitals, in some cases, may be vicariously liable for the negligence of nonemployee physicians and surgeons, the majority does not decide whether an exception for such liability should exist when the hospital informs patients that certain physicians or surgeons are not employed by the hospital. See footnote 27 of the majority opinion. Instead, the majority simply states that that question is not before the court in this case, and, therefore, it must be left for another day. Id. Finally, members of this court, unlike the elected bodies of government, cannot be held accountable for the value judgments they reach. Additionally, deference to the legislature seems to be a particularly prudent course of action in the present case because hospitals are highly regulated institutions within a highly regulated industry. Hospitals are subject to certificate of need requirements, limiting their ability, for example, to purchase certain equipment or to add and discontinue certain services without first receiving approval from the Department of Public Health. See General Statutes § 19a-638 (a). In addition, hospitals are licensed by the Department of Public Health and must comply with regulations regarding, among other things, physical plant, medical staffing, medical records, and emergency planning. See, e.g., Regs., Conn. State Agencies § 19-13-D3, 19-13-D4a and 19-13-D5. As a payor of health-care services, the state also has a large impact on hospital financing. See, e.g., General Statutes § 17b-239 (a)(2) ( "Medicaid rates paid to acute care and children's hospitals shall be based on diagnosis-related groups established and periodically rebased by the Commissioner of Social Services"). Due to the complex regulatory scheme governing health-care facilities, it is my view that this court should not disturb the careful balance that the legislature has achieved by exposing hospitals to vicarious liability for injuries caused by nonemployees. Instead, I would defer to the judgment of the legislature. In sum, the arrival of any new era is necessarily accompanied by the end of another. Thus, the modern age of growing complexity and rapid change, in my view, brings to an end the period in which this court should make sweeping, common-law jurisprudential changes. Instead, the legislature, which has become ever engaged in the common-law sphere, is institutionally better equipped to continue the development of the common law. Moreover, the legislature, an elected body with public processes, is designed to reflect the morality and experience of our time. Law giving by the legislature is more democratic, and it also is less likely to do serious harm. Accordingly, I conclude that this court should refrain from recognizing the doctrine of apparent agency in tort actions and, instead, defer to the judgment of the legislature regarding whether hospitals should be subject to vicarious liability for the malpractice of nonemployee health-care providers. Therefore, I respectfully dissent. The plaintiff alleged that Shoreline was Aranow's employer and that Shoreline was directly liable to her for its own negligence. Shoreline has admitted that Aranow is its employee and the claim against Shoreline is not at issue in this appeal. Middlesex also claimed in its motion for summary judgment that both the direct and the derivative claims against it were barred by the statute of limitations. 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. The plaintiff appealed from the trial court's ruling with respect to her claims against Aranow and Shoreline and the claim of vicarious liability against Middlesex 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). In the companion case of Cefaratti v. Aranow, 321 Conn. 637, 138 A.3d 837 (2016), released on the same date as this opinion, we answer that question in the affirmative. The following exchange took place between Aranow's attorney and the plaintiff at the plaintiff's deposition: "Q. Okay, so can you tell me how it came about that you made a decision that you wanted to have gastric bypass surgery? Did some doctor recommend that to you? "A. It was around the time that [the plaintiff's treating physician] said that I was borderline diabetic and I started taking stock of my health very seriously. My partner's mother had had bariatric surgery and she had a really good result and that's when I decided that that's what I wanted to do. "Q. And do you know who did your partner's mother's surgery? "A. Dr. Aranow. "Q. So is that where you got his name from? "A. That's where I got his name and then I did my own research and I found that he was the best in the state at that time. "Q. And so at that point you made a decision, I think I want to do this procedure? "A. Yes. "Q. And when you did your research, were you just researching doctors who did the procedure or were you actually researching the procedure itself? "A. Both." In support of her opposition to Middlesex' motion for summary judgment, the plaintiff provided the trial court with the affidavit of Sarah A. McNeely, an associate at the law firm that represented the plaintiff, in which McNeely stated that she had visited Middlesex' website and found information that would support a reasonable belief that Aranow was employed by Middlesex. McNeely printed out the materials and attached them to her affidavit. The plaintiff has pointed to no evidence in the record, however, that would support a finding that the plaintiff saw these materials before undergoing the surgery. After we granted the plaintiff's petition for certification to appeal, we granted permission to the Connecticut Trial Lawyers Association to file an amicus curiae brief in support of the plaintiff's position and to the Connecticut Hospital Association to file an amicus curiae brief in support of Middlesex' position. The doctrine of apparent authority expands the authority of an actual agent, while the doctrine of apparent agency creates an agency relationship that would not otherwise exist. See Miller v. McDonald's Corp., 150 Or.App. 274, 282 n. 4, 945 P.2d 1107 (1997) ("Apparent agency is a distinct concept from apparent authority. Apparent agency creates an agency relationship that does not otherwise exist, while apparent authority expands the authority of an actual agent."); see also Crinkley v. Holiday Inns, Inc., 844 F.2d 156, 166 (4th Cir.1988) ("apparent authority presupposes actual agency, and only operates to extend the scope of an actual agent's authority," while, under doctrine of apparent agency, "no actual agency exists, [but] a party may be held to be the agent of another on the basis that he has been held out by the other to be so in a way that reasonably induces reliance on the appearances"); but see Fletcher v. South Peninsula Hospital, 71 P.3d 833, 840-41 (Alaska 2003) (concluding that apparent agency is based on § 429 of Restatement [Second] of Torts, while apparent authority is based on § 8 of Restatement [Second] of Agency, and, "[e]xcept for apparent authority's more explicit focus on the principal's conduct, apparent authority and apparent agency are not markedly different theories of liability; in fact, other courts often use them interchangeably"); Daly v. Aspen Center for Women's Health, Inc., 134 P.3d 450, 454 (Colo.App.2005) (when plaintiff "seeks to establish vicarious liability for a physical tort, she is asserting apparent agency, not apparent authority"). It is an understatement to say that courts have been inconsistent in their use of the terminology relating to the doctrines of apparent agency and apparent authority. The court in Fireman's Fund Indemnity Co. derived these principles from two contract cases involving the doctrine of apparent authority. Fireman's Fund Indemnity Co. v. Longshore Beach & Country Club, Inc., supra, 127 Conn. at 497, 18 A.2d 347, citing Zazzaro v. Universal Motors, Inc., 124 Conn. 105, 111, 197 A. 884 (1938), and Quint v. O'Connell, 89 Conn. 353, 357, 94 A. 288 (1915). See L & V Contractors, LLC v. Heritage Warranty Ins. Risk Retention Group, Inc., supra, 136 Conn.App. at 670, 47 A.3d 887 ("the doctrine of apparent authority cannot be used to hold a principal liable for the tortious actions of its alleged agent"); Davies v. General Tours, Inc., 63 Conn.App. 17, 31, 774 A.2d 1063 ("the doctrine of agency by estoppel, or apparent authority . is not a viable ground on which to premise liability against a defendant sued for the torts of an alleged agent" [internal quotation marks omitted] ), cert. granted, 256 Conn. 926, 776 A.2d 1143 (2001) (appeal withdrawn October 18, 2001); Mullen v. Horton, 46 Conn.App. 759, 771-72, 700 A.2d 1377 (1997) (trial court properly had held that defendants in tort action were entitled to judgment as matter of law on claim pursuant to doctrine of apparent authority because doctrine had never been "used in such a manner" in this state). Specifically, the Appellate Court concluded in the present case that Mullen v. Horton, 46 Conn.App. 759, 771, 700 A.2d 1377 (1997), and Davies v. General Tours, Inc., 63 Conn.App. 17, 31, 774 A.2d 1063, cert. granted, 256 Conn. 926, 776 A.2d 1143 (2001) (appeal withdrawn October 18, 2001), must be interpreted as having "held that the facts of those cases did not justify the imposition of vicarious liability" under the doctrine of apparent authority, thereby implying that this court has recognized the doctrine. (Emphasis added.) Cefaratti v. Aranow, supra, 154 Conn.App. at 40-41, 105 A.3d 265 ; see also id., at 45, 105 A.3d 265 (affirming L & V Contractors, LLC, on sole ground that panel of Appellate Court cannot overrule precedent established by previous panel). Numerous Superior Court decisions have applied Fireman's Fund Indemnity Co. in tort actions. See Beamon v. Petersen, Superior Court, judicial district of New Haven, Docket No. CV-10-6010085-S, 2014 WL 1876951 (April 9, 2014) (57 Conn. L. Rptr. 920 ) ("it is illogical to conclude that Fireman's Fund [Indemnity Co. ] cannot be invoked for the proposition that the doctrine of apparent authority applies to tort liability" [internal quotation marks omitted] ); id., at 923 (citing Superior Court cases that have concluded that L & V Contractors, LLC, is not binding because it conflicts with Fireman's Fund Indemnity Co. ); but see Weiss v. Surgical Associates, P.C., Superior Court, judicial district of Fairfield, Docket No. CV-11-6022546-S, 2015 WL 3516842 (April 30, 2015) (following L & V Contractors, LLC, and citing other Superior Court cases that have done so). See Baptist Memorial Hospital System v. Sampson, 969 S.W.2d 945, 947 n. 2 (Tex.1998) ("Many courts use the terms ostensible agency, apparent agency, apparent authority, and agency by estoppel interchangeably. As a practical matter, there is no distinction among them.... Regardless of the term used, the purpose of the doctrine is to prevent injustice and protect those who have been misled." [Citations omitted.] ); id. (citing cases). We further note that, in Mullen v. Horton, 46 Conn.App. 759, 771, 700 A.2d 1377 (1997), the plaintiff sought to hold the defendants liable for the acts of an employee under the doctrine of "apparent authority," thus using the correct terminology. As we have indicated, the Appellate Court concluded that "the doctrine of apparent authority has never been used in such a manner." Id., at 772, 700 A.2d 1377. This conclusion could not have been based on the distinction between apparent authority and apparent agency, however, because, under Fireman's Fund Indemnity Co., the doctrine of apparent authority may be applied to hold the tortfeasor's employer vicariously liable. Although hospitals were once exempt from claims of vicarious liability for the medical malpractice of their agents and employees under the doctrine of charitable immunity; see McDermott v. St. Mary's Hospital Corp., 144 Conn. 417, 422, 133 A.2d 608 (1957) ; that doctrine has been legislatively abolished. See General Statutes § 52-557d. See Sherwood v. Danbury Hospital, 278 Conn. 163, 184 n. 19, 896 A.2d 777 (2006) (hospital may be held vicariously liable when employee physician fails to fulfill duty of care to patient); Mather v. Griffin Hospital, 207 Conn. 125, 136, 540 A.2d 666 (1988) ("any negligence the jury ascribed to [a nurse employed by the defendant hospital] would have been attributable to the hospital under the doctrine of respondeat superior"); see also Wilkins v. Connecticut Childbirth & Women's Center, 314 Conn. 709, 104 A.3d 671 (2014) ("the plaintiff filed this medical malpractice action [against the corporate defendants] based on alleged negligence on the part of employees or agents of the defendants during the . delivery of [the plaintiff's] child"); Morgan v. Hartford Hospital, 301 Conn. 388, 392, 21 A.3d 451 (2011) (corporate defendant was sued pursuant to doctrine of respondeat superior); Rivera v. St. Francis Hospital & Medical Center, 55 Conn.App. 460, 464, 738 A.2d 1151 (1999) (hospital was sued pursuant to doctrine of respondeat superior); Shenefield v. Greenwich Hospital Assn., 10 Conn.App. 239, 249, 522 A.2d 829 (1987) ( "[t]he failure of the doctor, while acting as an agent of the hospital, to fulfill his duty supported the jury's finding of negligence on the part of both the doctor and the hospital"); see footnote 9 of this opinion (citing Superior Court cases that have held hospitals vicariously liable for medical practice). The amicus Connecticut Hospital Association contends that holding hospitals vicariously liable for medical malpractice under the doctrine of apparent agency would "transmute hospitals into excess insurers of those physicians who are neither employees nor actual agents of the hospital." To the extent that the amicus is claiming that it is simply unfair to hold an entity vicariously liable for the negligence of a nonagent, we reject this argument for the reasons set forth in this opinion. Moreover, although the issue is not before us, we note that a principal that is held vicariously liable for another's negligence under the doctrine of apparent agency may be able to seek indemnification from the tortfeasor, an option that is not available to an insurer. See Kyrtatas v. Stop & Shop, Inc., 205 Conn. 694, 698, 535 A.2d 357 (1988) ( "[a] plaintiff in an action for indemnification not based on statute or express contract . can recover indemnity from [the active tortfeasor] . by establishing four separate elements: [1] that the . tortfeasor was negligent; [2] that his negligence, rather than [the negligence of the party seeking indemnification], was the direct, immediate cause of the accident and injuries; [3] that [the tortfeasor] was in control of the situation to the exclusion of the [party seeking indemnification]; and [4] that the [party seeking indemnification] did not know of such negligence, had no reason to anticipate it, and could reasonably rely on the . tortfeasor not to be negligent"). The amicus further contends that liability insurers will be unable "to rate, review, and collect premiums" for this risk. The amicus has not explained, however, why liability insurers will lack this ability. Insurance companies regularly insure large and immensely complex enterprises. Indeed, the doctrine of apparent authority has been widely adopted; see footnote 26 of this opinion; and the amicus has pointed to no evidence of an insurance crisis in the states where it is recognized. Many of these cases use the phrases "apparent authority" and "apparent agency" interchangeably. Because, as we have explained, the underlying rationale for both doctrines is the same, and because the present case involves a claim of apparent agency, we use that term. See also Cohen v. Holloways', Inc., 158 Conn. 395, 407, 260 A.2d 573 (1969) ("the acts of the principal must be such that [1] the principal held the agent out as possessing sufficient authority to embrace the act in question, or knowingly permitted him to act as having such authority, and [2] in consequence thereof the person dealing with the agent, acting in good faith, reasonably believed, under all the circumstances, that the agent had the necessary authority" [internal quotation marks omitted] ); Nowak v. Capitol Motors, Inc., 158 Conn. 65, 69, 255 A.2d 845 (1969) (same); Lewis v. Michigan Millers Mutual Ins. Co., 154 Conn. 660, 665-66, 228 A.2d 803 (1967) ("To fix the principal's liability for the agent's act, it must be shown either that the principal, by his own acts, causes the mistaken belief that the agent had the requisite authority or that the principal knowingly permitted the agent to engender that belief.... Also, of course, the third party must have acted in good faith on the false appearance created by the principal." [Citation omitted.] ); Zazzaro v. Universal Motors, Inc., 124 Conn. 105, 110-11, 197 A. 884 (1938) ("This claim apparently overlooks the elements essential to apparent authority.... One is that the principal must have held the agent out to the public as possessing the requisite authority, and the other that the one dealing with the agent and knowing of the facts, must have believed in good faith and upon reasonable grounds that the agent had the necessary authority."). See 1 Restatement (Third), supra, § 2.03, comment (b), p. 114 (" '[o]stensible authority,' as the term is defined in some jurisdictions, is not identical in meaning to 'apparent authority' when it requires elements requisite to estoppel"); id., § 2.05, p. 145 ("[a] person who has not made a manifestation that an actor has authority as an agent . is subject to liability to a third party who justifiably is induced to make a detrimental change in position"); see also D. Janulis & A. Hornstein, supra, at 64 Neb. L.Rev. 701 ("confusion abounds . in the areas of apparent agency versus estoppel to deny agency"). For example, if A agrees to pay B $1000 for a car, and A gives the $1000 to C, reasonably believing B's representations that C was his agent, it reasonably may be presumed that A would not have given the money to C but for B's representations. We also note that some of the language in the cases on which the plaintiff relies is equivocal. For example, in Beckenstein v. Potter & Carrier, Inc., supra, 191 Conn. at 140-41, 464 A.2d 6, this court stated that the party seeking to impose liability must prove that "it acted in good faith based upon the actions . of the principal"; (emphasis added); not simply that the party must have believed the principal's manifestations of agency in good faith. See also Lewis v. Michigan Millers Mutual Ins. Co., 154 Conn. 660, 666, 228 A.2d 803 (1967) ("the third party must have acted in good faith on the false appearance created by the principal" [emphasis added] ). In addition, although this court in Nowak v. Capitol Motors, Inc., 158 Conn. 65, 69, 255 A.2d 845 (1969), set forth the test for apparent agency that this court adopted in Fireman's Fund Indemnity Co., this court also stated that "the plaintiff is bound by [the apparent agent's] statements . if they were justifiably relied upon by the defendants." (Emphasis added.) Id., at 70, 255 A.2d 845. Section 8 of the Restatement (Second), supra, provides: "Apparent authority is the power to affect the legal relations of another person by transactions with third persons, professedly as agent for the other, arising from and in accordance with the other's manifestations to such third persons." Section 8 B of the Restatement (Second), supra, provides in relevant part: "(1) A person who is not otherwise liable as a party to a transaction purported to be done on his account, is nevertheless subject to liability to persons who have changed their positions because of their belief that the transaction was entered into by or for him, if "(a) he intentionally or carelessly caused such belief, or "(b) knowing of such belief and that others might change their positions because of it, he did not take reasonable steps to notify them of the facts.... "(3) Change of position, as the phrase is used in the restatement of this subject, indicates payment of money, expenditure of labor, suffering a loss or subjection to legal liability." Section 267 of the Restatement (Second), supra, provides: "One who represents that another is his servant or other agent and thereby causes a third person justifiably to rely upon the care or skill of such apparent agent is subject to liability to the third person for harm caused by the lack of care or skill of the one appearing to be a servant or other agent as if he were such." Section 2.03 of the Restatement (Third), supra, provides: "Apparent authority is the power held by an agent or other actor to affect a principal's legal relations with third parties when a third party reasonably believes the actor has authority to act on behalf of the principal and that belief is traceable to the principal's manifestations." Section 7.08 of the Restatement (Third), supra, provides: "A principal is subject to vicarious liability for a tort committed by an agent in dealing or communicating with a third party on or purportedly on behalf of the principal when actions taken by the agent with apparent authority constitute the tort or enable the agent to conceal its commission." Section 429 of the Restatement (Second) of Torts, supra, provides: "One who employs an independent contractor to perform services for another which are accepted in the reasonable belief that the services are being rendered by the employer or by his servants, is subject to liability for physical harm caused by the negligence of the contractor in supplying such services, to the same extent as though the employer were supplying them himself or by his servants." See Fletcher v. South Peninsula Hospital, 71 P.3d 833, 840 (Alaska 2003) (apparent agency may be found when "the patient looks to the institution, rather than the individual physician, for care"), legislatively overruled in part as stated in Evans ex rel. Kutch v. State, 56 P.3d 1046, 1067 (Alaska 2002) (under state statute, hospital is not liable for negligence of physicians who are independent contractors if hospital provides notice that physicians are not agents or employees and physicians have required levels of malpractice insurance); York v. Rush-Presbyterian-St. Luke's Medical Center, 222 Ill.2d 147, 194, 305 Ill.Dec. 43, 854 N.E.2d 635 (2006) ("the reliance element of a plaintiff's apparent agency claim is satisfied if the plaintiff reasonably relies upon a hospital to provide medical care, rather than upon a specific physician"); Paintsville Hospital Co. v. Rose, 683 S.W.2d 255, 257 (Ky.1985) (apparent agency applies when physician is "supplied through the hospital rather than being selected by the patient"); Grewe v. Mt. Clemens General Hospital, 404 Mich. 240, 251, 273 N.W.2d 429 (1978) ("the critical question is whether the plaintiff, at the time of his admission to the hospital, was looking to the hospital for treatment of his physical ailments or merely viewed the hospital as the situs where his physician would treat him for this problems"); Hardy v. Brantley, 471 So.2d 358, 371 (Miss.1985) ("[w]here a hospital holds itself out to the public as providing a given service . and where the hospital enters into a contractual arrangement with [independent contractor] physicians to direct and provide the service, and where the patient engages the services of the hospital without regard to the identity of a particular physician and where as a matter of fact the patient is relying upon the hospital to deliver the desired health care and treatment, the doctrine of respondeat superior applies and the hospital is vicariously liable for damages proximately resulting from the neglect, if any, of such physicians"), legislatively overruled in part as stated in Brown v. Delta Regional Medical Center, 997 So.2d 195, 197 (Miss.2008) (Hardy was overruled in part by state statute barring claims against state for acts of independent contractors); Butler v. Domin, 302 Mont. 452, 462-63, 15 P.3d 1189 (2000) ("a hospital may be liable if the hospital holds itself out as a provider of medical services and, in the absence of notice or knowledge to the contrary, the patient looks to the hospital, as opposed to the independent practitioner, to provide competent medical care"); Renown Health v. Vanderford, 126 Nev. 221, 227, 235 P.3d 614 (2010) (doctrine of ostensible agency applies "when a patient goes to the hospital and the hospital selects the doctor to treat the patient, such that it is reasonable for the patient to assume the doctor is an agent of the hospital"); Hill v. St. Clare's Hospital, 67 N.Y.2d 72, 80-81, 490 N.E.2d 823, 499 N.Y.S.2d 904 (1986) (doctrine of apparent agency applies "to hold a hospital or clinic responsible to a patient who sought medical care at the hospital or clinic rather than from any particular physician"); Peter v. Vullo, 234 N.C.App. 150, 758 S.E.2d 431, 439 (2014) (apparent agency could be found when plaintiff sought services from hospital and hospital chose anesthesiologist); Comer v. Risko, supra, 106 Ohio St.3d at 188, 833 N.E.2d 712 (doctrine of agency by estoppel applies when "the hospital holds itself out to the public as a provider of medical services and . the patient looks to the hospital, not a particular doctor, for medical care" [internal quotation marks omitted] ); Roth v. Mercy Health Center, Inc., 246 P.3d 1079, 1090 (Okla.2011) (doctrine of ostensible agency applies when "the patient, at the time of admittance, looks to the hospital solely for treatment of his or her physical ailments, with no belief that the physicians were acting on their own behalf rather than as agents of the hospital"); Eads v. Borman, 351 Or. 729, 744, 277 P.3d 503 (2012) ("[t]he fact that the patient relies on the reputation of the hospital itself as a care provider, and does not make an independent selection as to which physicians the patient will obtain care from, provides the factual basis for the reliance needed for the apparent authority analysis" [internal quotation marks omitted] ); Capan v. Divine Providence Hospital, 287 Pa.Super. 364, 368, 430 A.2d 647 (1980) (hospital may be held liable under doctrine of ostensible agency because "the changing role of the hospital in society creates a likelihood that patients will look to the institution rather than the individual physician for care"), abrogated by 40 Pa. Stat. Ann. § 1303.516 (2014) (hospital may be held liable under principles of ostensible agency when reasonably prudent person would be justified in belief that care in question was being rendered by hospital or its agents or care in question was advertised or represented to patient as care being rendered by hospital or its agents); Simmons v. Tuomey Regional Medical Center, 341 S.C. 32, 52, 533 S.E.2d 312 (2000) (doctrine of ostensible agency "is limited . to those situations in which a patient seeks services at the hospital as an institution, and is treated by a physician who reasonably appears to be a hospital employee"); Boren ex rel. Boren v. Weeks, 251 S.W.3d 426, 436 (Tenn.2008) (doctrine of apparent agency applies when "[1] the hospital held itself out to the public as providing medical services; [2] the plaintiff looked to the hospital rather than to the individual physician to perform those services; and [3] the patient accepted those services in the reasonable belief that the services were provided by the hospital or a hospital employee"); Burless v. West Virginia University Hospitals, Inc., 215 W.Va. 765, 777, 601 S.E.2d 85 (2004) ("[r]eliance . is established when the plaintiff looks to the hospital for services, rather than to an individual physician" [internal quotation marks omitted] ); Pamperin v. Trinity Memorial Hospital, 144 Wis.2d 188, 211, 423 N.W.2d 848 (1988) ("the critical question is whether the plaintiff, at the time of his admission to the hospital, was looking to the hospital for treatment of his physical ailments or merely viewed the hospital as the situs where his physician would treat him for his problems" [internal quotation marks omitted] ); Sharsmith v. Hill, 764 P.2d 667, 672 (Wyo.1988) (doctrine of apparent agency applies "where the patient engages the services of the hospital without regard to the identity of a particular physician and where as a matter of fact the patient is relying upon the hospital to deliver the desired health care and treatment"), overruled in part by Campbell County Memorial Hospital v. Pfeifle, 317 P.3d 573, 581 (Wyo.2014) (public hospitals cannot be held liable under doctrine of apparent agency). Other courts have applied different standards in determining whether a hospital may be found liable for the negligence of a physician under the doctrine of apparent agency. See Ermoian v. Desert Hospital, 152 Cal.App.4th 475, 503, 61 Cal.Rptr.3d 754 (adopting reasonable belief standard), appeal denied, 2007 Cal. LEXIS 10631 (Cal.2007); Vanaman v. Milford Memorial Hospital, Inc., 272 A.2d 718, 722 (Del.1970) (adopting justifiable reliance standard of § 267 of Restatement [Second] of Agency, supra); Stone v. Palms West Hospital, 941 So.2d 514, 519-21 (Fla.App.2006) (recognizing doctrine of apparent agency applies to hold hospital liable for negligence of physician who is not agent, but standard is unclear); Richmond County Hospital Authority v. Brown, 257 Ga. 507, 508-509, 361 S.E.2d 164 (1987) (adopting justifiable reliance standard of § 267 of Restatement [Second] of Agency, supra); Bynum v. Magno, 125 F.Supp.2d 1249, 1266 (D.Haw.2000) (under Hawaii law, plaintiff must show justifiable reliance), rev'd on other grounds, 55 Fed.Appx. 811 (9th Cir.2003) ; Jones v. HealthSouth Treasure Valley Hospital, 147 Idaho 109, 117, 206 P.3d 473 (2009) (adopting reasonable belief standard of § 2.03 of Restatement [Third] of Agency, supra); Sword v. NKC Hospitals, Inc., 714 N.E.2d 142, 152 (Ind.1999) (adopting reasonable belief standard of § 429 of Restatement [Second] of Torts, supra); Bradford v. Jai Medical Systems Managed Care Organizations, Inc., 439 Md. 2, 18-19, 23, 93 A.3d 697 (2014) (plaintiffs must have justifiable or reasonable belief in agency relationship); Hefner v. Dausmann, 996 S.W.2d 660, 667 (Mo.App.1999) (adopting detrimental reliance standard); Dent v. Exeter Hospital, Inc., 155 N.H. 787, 792, 931 A.2d 1203 (2007) (applying reasonable belief standard); Estate of Cordero ex rel. Cordero v. Christ Hospital, 403 N.J.Super. 306, 314-18, 958 A.2d 101 (2008) (applying reasonable belief standard of § 2.03 of Restatement [Third] of Agency, supra, and § 429 of Restatement [Second] of Torts, supra); Basil v. Wolf, 193 N.J. 38, 67, 935 A.2d 1154 (2007) (stating in dictum that standard is reasonable belief); Zamora v. St. Vincent Hospital, 335 P.3d 1243, 1248 (N.M.2014) (applying justifiable reliance standard); Benedict v. St. Luke's Hospitals, 365 N.W.2d 499, 504 (N.D.1985) (doctrine of ostensible agency applies when plaintiff seeks services in emergency room); Rodrigues v. Miriam Hospital, 623 A.2d 456, 462 (R.I.1993) (applying detrimental reliance standard); Baptist Memorial Hospital System v. Sampson, supra, 969 S.W.2d at 948-49 (adopting justifiable reliance standard of § 267 of Restatement [Second] of Agency, supra); Mohr v. Grantham, 172 Wash.2d 844, 860, 262 P.3d 490 (2011) (to establish apparent agency, belief of agency must be objectively reasonable). Courts in a number of cases involving claims against hospitals under the doctrine of apparent authority have held that a hospital can rebut this presumption by posting signs indicating that medical providers are not the agents or employees of the hospital or by requiring patients to sign disclaimers to that effect. See, e.g., Sword v. NKC Hospitals, Inc., 714 N.E.2d 142, 152 (Ind.1999) (citing cases and stating "[a] hospital generally will be able to avoid liability by providing meaningful written notice to the patient, acknowledged at the time of admission"). Some courts have also held, however, that such signs and disclaimers may not always be effective methods of avoiding liability in a hospital setting. Id. ("[u]nder some circumstances, such as in the case of a medical emergency . written notice may not suffice if the patient had an inadequate opportunity to make an informed choice"); compare Menzie v. Windham Community Memorial Hospital, supra, 774 F.Supp. at 97 ("reliance" element of apparent agency claim was not satisfied when plaintiff was brought to hospital under emergency circumstances and did not choose particular hospital). This issue is not before us in the present case, however, and, therefore, we need not resolve it here. Numerous cases that have adopted this standard have relied on the fact that modern hospitals typically engage in extensive publicity campaigns to attract patients. See, e.g., Kashishian v. Port, 167 Wis.2d 24, 38, 481 N.W.2d 277 (1992) ("Modern hospitals have spent billions of dollars marketing themselves, nurturing the image with the consuming public that they are full-care modern health facilities. All of these expenditures have but one purpose: to persuade those in need of medical services to obtain those services at a specific hospital. In essence, hospitals have become big business, competing with each other for health care dollars. As the role of the modern hospital has evolved, and as the image of the modern hospital has evolved [much of it self-induced], so too has the law with respect to the hospital's responsibility and liability towards those it successfully beckons." [Footnote omitted.] ). Middlesex claims that, even if the plaintiff is not required to prove detrimental reliance on the principal's representations that the tortfeasor was its agent or employee when the principal selected the tortfeasor, we should limit the application of that doctrine to cases in which the plaintiff sought treatment in a hospital's emergency room. We disagree. Although a number of courts have held that "[t]he fact of seeking medical treatment in a hospital emergency room and receiving treatment from a physician working there is sufficient to satisfy [the elements of an apparent agency claim]" [internal quotation marks omitted]; Stone v. Palms West Hospital, 941 So.2d 514, 520-21 (Fla.App.2006) ; see also, e.g., Richmond County Hospital Authority v. Brown, 257 Ga. 507, 509, 361 S.E.2d 164 (1987) ("[i]n particular [the doctrine] has been applied to emergency room settings"); Bynum v. Magno, 125 F.Supp.2d 1249, 1266 (D.Haw.2000) (applying Hawaii law and concluding that "[w]here the patient was admitted to the [e]mergency [r]oom . the elements for apparent agency are more likely to be met, whatever test is used"); we see no reason why the doctrine should be limited to that situation. Rather, we conclude that the doctrine should apply whenever its elements have been established. See Kashishian v. Port, 167 Wis.2d 24, 44, 481 N.W.2d 277 (1992) (although three criteria for establishing apparent agency can be satisfied in emergency room setting, "[w]e can discern no reason to conclude, as a matter of law, that the doctrine of apparent authority should not exist in other contexts concerning hospitals and independent physicians when all the elements are present"). Other settings in which the elements might be established might include a hospital operating room, when the hospital chose the anesthetist or nurses, or in a hospital clinic, when the plaintiff chose the clinic and the clinic selected the specific provider of services. It does not appear that the trial court in Fireman's Fund Indemnity Co. considered the applicability of the doctrine of apparent authority to tort actions either. See Fireman's Fund Indemnity Co. v. Longshore Beach & Country Club, 5 Conn.Supp. 165, 166-68 (1937), aff'd, 127 Conn. 493, 18 A.2d 347 (1941). Indeed, it framed the issue of the club's liability as follows: "The first question is whether or not the employee . was [the defendant club's] agent and servant and this, in turn, depends [on] whether, at the time, he was either acting within the scope of his employment in respect of a duty, express or implied, imposed [on] him by [the club]." (Emphasis added.) Id., at 166-67. It is certainly arguable that the enactment of such a requirement reflects the legislature's judgment that individual health-care providers, and not hospitals, should be liable for their own negligence, and that, if the liability insurance required by such statute is inadequate to provide relief to the plaintiff in the present case and those individuals similarly situated, their recourse is to ask the legislature to increase the minimum amount of coverage required. There is a difference, of course, in correcting the common law, on the one hand, and expanding or changing the course of the common law, on the other. In the case of the former, this court should continue to exercise its common-law authority to harmonize common-law rules with "[t]he felt necessities of the time...." O. Holmes, The Common Law (1881) p. 1.

12486169

STATE FARM FIRE AND CASUALTY COMPANY v. Mark TULLY et al.

State Farm Fire & Cas. Co. v. Tully

2016-08-23

No. 19600.

1079

1095

142 A.3d 1079

142

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

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

Fastcase

STATE FARM FIRE AND CASUALTY COMPANY v. Mark TULLY et al.

STATE FARM FIRE AND CASUALTY COMPANY v. Mark TULLY et al. No. 19600. Supreme Court of Connecticut. Argued March 28, 2016. Decided Aug. 23, 2016. Kirk D. Tavtigian, Jr., Farmington, for the appellant-appellee (defendant Child Doe). Ron Murphy, Avon, for the appellee-appellant (named defendant). Jack G. Steigelfest, Hartford, for the appellee in both appeals (plaintiff). ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, McDONALD, ESPINOSA and ROBINSON, Js. This case originally was scheduled to be argued before a panel of this court consisting of Chief Justice Rogers and Justices Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson. Although Justice Eveleigh 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.

9152

57456

ROBINSON, J. The principal issue in these appeals is whether evidence of an insured person's voluntary intoxication may be used, when an insurance policy excludes coverage for intentional acts, to negate intent and thereby establish the insurer's duty to defend the insured person against civil claims arising from sexual misconduct with a minor. The plaintiff, State Farm Fire and Casualty Company, brought this action seeking a declaratory judgment that it owed no duty to defend the named defendant, Mark Tully, under a homeowners insurance policy (policy), in a separate civil action filed on behalf of the defendant Child Doe. The defendants appeal from the judgment of the trial court granting the plaintiff's motion for summary judgment on the ground that, because the policy excluded coverage for acts "intended" by the insured, Tully's actions fell outside the scope of the policy and, thus, the plaintiff had no duty to defend him under the presumption of intent established in United Services Automobile Assn. v. Marburg, 46 Conn.App. 99, 104-105, 698 A.2d 914 (1997). On appeal, the defendants claim that the trial court improperly rendered summary judgment in favor of the plaintiff because evidence that Tully was intoxicated at the time of the incident created a genuine issue of material fact as to whether his actions were intentional. Specifically, the defendants assert that evidence of voluntary intoxication may negate the intent presumed under Marburg and thereby establish an insurer's duty to defend. We disagree and, accordingly, affirm the judgment of the trial court. The record reveals the following undisputed facts and procedural history. On July 2, 2012, Doe and two other girls were in the shower area of Winding Trails Park in Farmington. At that time, Doe was fourteen years old and the two other girls were, respectively, thirteen and eight years old. Tully, who was fifty-six years old and "under the influence of intoxicating liquor," approached the three girls and offered to buy them ice cream. After the girls refused, Tully grabbed Doe's breast, nearly removing her bathing suit top. Tully then fondled the buttocks of the eight year old girl in Doe's view. Doe, by and through her parent as next friend, subsequently filed a civil action against Tully alleging, inter alia, that he "negligen[tly]" sexually assaulted her while he was intoxicated. The plaintiff had previously issued the policy, which provided that the plaintiff would defend Tully against claims resulting from an "occurrence," which is defined in the policy as an "accident," but not from claims resulting from his intentional actions. Tully claimed coverage under the policy, based on his intoxicated state, and requested that the plaintiff defend him in the action. The plaintiff denied coverage, however, on the ground that Doe's claim fell within the intentional act exclusion of the policy. In response to this complaint, the plaintiff initiated the present action seeking a declaratory judgment with regard to its duty to defend Tully. The plaintiff moved for summary judgment on the ground that the complaint in the underlying action alleged an intentional act, which fell within the policy's intentional act exclusion of coverage. In response, Tully submitted two affidavits, one from a physician and one from a psychologist, which opined that he was an alcoholic and so intoxicated on the day of the incident that he could not have formed the requisite intent to harm Doe, as well as his own affidavit attesting that he did-and still does-struggle with alcoholism. The defendants argued that this evidence raised a genuine issue of material fact as to whether Tully's actions were intentional. The trial court rendered summary judgment in favor of the plaintiff, concluding that the plaintiff was entitled to rely on Marburg, which established a presumption of intent in cases involving the sexual assault of a minor. See United Services Automobile Assn. v. Marburg, supra, 46 Conn.App. at 104, 698 A.2d 914. The trial court then stated, more generally, that "voluntary intoxication does not establish a question of intent when defending against an exclusionary clause of an insurance policy." These appeals followed. See footnote 2 of this opinion. On appeal, the defendants reiterate their claim that evidence of Tully's voluntary intoxication raises a genuine issue of material fact as to whether his actions were intentional and, thus, fall within the intentional act exclusion of the policy. The defendants first claim that the trial court improperly applied the presumption established in Marburg because this court overruled that presumption in Allstate Ins. Co. v. Barron, 269 Conn. 394, 409, 848 A.2d 1165 (2004), which held that the standard for determining whether an insured's intent may be negated for the purposes of an intentional act exclusion is whether the insured was able to understand the wrongfulness of his conduct. Thus, the defendants claim that there was a genuine issue of material fact as to whether Tully was able to understand the wrongfulness of his conduct as a result of his intoxication. Alternatively, should this court apply the Marburg presumption, the defendants argue that this court should, as a policy matter, allow evidence of voluntary intoxication to be used to negate that intent. Lastly, the defendants claim that the trial court improperly decided "that an insured's intoxication can never, as a matter of law, negate the intent required to invoke the intentional acts exclusion." (Emphasis in original.) In response, the plaintiff contends that the trial court properly applied the Marburg presumption and, thus, there is no genuine issue of material fact that Tully's acts fell within the intentional acts exclusion. The plaintiff also argues that Barron clarified the Marburg presumption, rather than overruled it, given that the two cases are factually distinguishable. Finally, the plaintiff argues that this court should not allow evidence of Tully's voluntary intoxication to rebut the Marburg presumption, as it would be against public policy to allow evidence of voluntary intoxication to negate intent for the purposes of an intentional exclusion act in an insurance policy. We agree with the plaintiff and conclude that: (1) the Marburg presumption of intentional conduct based on an insured's sexual misconduct with a minor remains good law after Barron ; (2) the trial court properly applied the Marburg presumption in the present case; and (3) evidence of voluntary intoxication may not be used to negate intent in duty to defend cases in which the insured's intent is inferred from the underlying complaint that alleges that the insured committed sexual misconduct with a minor. We, therefore, conclude that the plaintiff satisfied its burden of demonstrating that no genuine issue of material fact exists insofar as the complaint in the underlying civil action alleges intentional acts and, thus, the plaintiff has no duty to defend Tully. "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 nonmoving party has no obligation to submit documents establishing the existence of such an issue.... Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue.... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book [§ 17-45 ].... Our review of the trial court's decision to grant [a] motion for summary judgment is plenary." (Citations omitted; footnote omitted; internal quotation marks omitted.) Allstate Ins. Co. v. Barron, supra, 269 Conn. at 405-406, 848 A.2d 1165. "The principles governing our determination of [whether an insurer has a duty to defend] are well settled. [A]n insurer's duty to defend . is determined by reference to the allegations contained in the [underlying] complaint.... The obligation of the insurer to defend does not depend on whether the injured party will successfully maintain a cause of action against the insured but on whether he has, in his complaint, stated facts which bring the injury within the coverage. If the latter situation prevails, the policy requires the insurer to defend, irrespective of the insured's ultimate liability.... It necessarily follows that the insurer's duty to defend is measured by the allegations of the complaint.... Hence, if the complaint sets forth a cause of action within the coverage of the policy, the insurer must defend.... Indeed, [i]f an allegation of the complaint falls even possibly within the coverage, then the insurance company must defend the insured.... On the other hand, if the complaint alleges a liability which the policy does not cover, the insurer is not required to defend." (Citations omitted; internal quotation marks omitted.) Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co., 254 Conn. 387, 398-99, 757 A.2d 1074 (2000). Specifically, "[w]here . the policy excludes coverage for damages resulting from intentional acts, the court examines the factual allegations to decide whether both intentional acts and intended results are present." Middlesex Ins. Co. v. Mara, 699 F.Supp.2d 439, 449 (D.Conn.2010). "Moreover . Connecticut courts have long eschewed the notion that pleadings should be read in a hypertechnical manner.... They thus read the complaint in a manner that advances substantial justice, construing it reasonably to contain all that it may fairly mean." (Citation omitted; internal quotation marks omitted.) Id., at 450. "The result is that even when an action is [pleaded] as an unintentional tort [such as negligence], the court examines the alleged activities in the complaint to determine whether the insured intended to commit both the acts and the injuries that resulted. If so, regardless of the title of the action, the court holds the action to be outside the coverage of the policy." Id. "Furthermore, harmful intent may be inferred at law in circumstances where the alleged behavior in the underlying action is so inherently harmful that the resulting damage is unarguably foreseeable." Id. "Case law is clear that where the provisions in the insurance policy expressly exempt intentional acts of an insured from coverage, the court will grant summary judgment in favor of the insurer who relies upon such exemption." Id., at 450-51 ; see also United Services Automobile Assn. v. Marburg, supra, 46 Conn.App. at 104, 698 A.2d 914. When an insurer relies on an exclusionary clause to deny coverage, the initial burden is on the insurer to demonstrate that all the allegations within the complaint fall completely within the exclusion. Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co., supra, 254 Conn. at 398-99, 757 A.2d 1074. If the complaint alleges liability that falls completely within the exclusion, the insurer is not required to defend. Id., at 399, 757 A.2d 1074. The plaintiff argues that Tully's intent may be presumed in this case as a matter of law under Marburg because the complaint in the underlying civil action alleged sexual misconduct with a minor. This requires us to consider the defendants' argument that intent may not be presumed because Allstate Ins. Co. v. Barron, supra, 269 Conn. 394, 848 A.2d 1165, overruled the Marburg presumption. In United Services Automobile Assn. v. Marburg, supra, 46 Conn.App. at 100-101, 698 A.2d 914, our Appellate Court considered whether an insurer had a duty to defend the defendant, Bonita Marburg, a woman accused of sexually abusing a minor during tutoring sessions. In its motion for summary judgment, the insurer argued that no genuine issue of material fact existed as to whether the allegations fell within the homeowners insurance policy's " 'expected-or-intended injury' " exclusion. Id., at 102, 698 A.2d 914. The minor and his mother alleged, however, that Marburg's sexual misconduct was a result of a mental disease or defect that negated her intent to harm the minor. Id., at 103, 698 A.2d 914. The Appellate Court, following an American Law Reports annotation, recognized a presumption of intent for acts of sexual molestation of minors because that act itself is "so heinous that intent to cause harm is presumed as a matter of law." Id., at 104, 698 A.2d 914, citing annot., 31 A.L.R.4th 957, § 5(b) (1984); see, e.g., Gearing v. Nationwide Ins. Co., 76 Ohio St.3d 34, 37, 665 N.E.2d 1115 (1996) (observing that, by "1993, the inferred intent standard in cases of sexual molestation of a minor was characterized as the unanimous rule," and that minority approach of considering subjective intent has "largely been abandoned, having been criticized as logically untenable" [internal quotation marks omitted] ); see also Twin City Fire Ins. Co. v. Doe, 163 Ariz. 388, 390, 788 P.2d 121 (App.1989) (concluding that public policy supports presuming intent to injure with respect to sexual abuse of minors because such acts are not performed under any claim of right or privilege under law, and are in fact crimes); Horace Mann Ins. Co. v. Leeber, 180 W.Va. 375, 380-81, 376 S.E.2d 581 (1988) (observing that presumption of intent was supported by doctrine of reasonable expectations with respect to policyholder and homeowners insurance carrier). Applying this presumption and relying on the standard set out in Home Ins. Co. v. Aetna Life & Casualty Co., 35 Conn.App. 94, 644 A.2d 933 (1994), rev'd on other grounds, 235 Conn. 185, 663 A.2d 1001 (1995), the Appellate Court then reasoned that, "[a]n insured's conduct can be considered unintentional in situations such as those here only if the insured can produce evidence to show that she did not intend to cause the damage.... If the insured cannot show that her behavior was unintentional, the presumption of intent remains intact, and the exclusion of the homeowners policy precludes coverage." (Citation omitted.) United Services Automobile Assn. v. Marburg, supra, 46 Conn.App. at 104-105, 698 A.2d 914. The Appellate Court then analyzed the evidence that Marburg provided to rebut the presumption-namely, an affidavit and letter from two physicians describing her mental condition-to determine whether a material issue of fact was in dispute regarding Marburg's ability to form intent. Id., at 106-107, 698 A.2d 914. Ultimately, the Appellate Court held that the affidavits demonstrated that no genuine issue of material fact existed and, thus, summary judgment was appropriate. Id., at 110-11, 698 A.2d 914. Several years later, we decided Allstate Ins. Co. v. Barron, supra, 269 Conn. at 407, 848 A.2d 1165, a case in which the underlying complaint leading to the insurance coverage dispute alleged, inter alia, that a mother stabbed her husband and one of her children, poured gasoline on herself and the child, and then set fire to the house. The underlying complaint also alleged that, "at the time of these events, [the mother] was suffering from a mental illness or impairment that rendered her incapable either of appreciating the nature, consequences and wrongfulness of her conduct or controlling her actions or both." Id. Specifically, the mother had been diagnosed with postpartum depression, recurrent major depression, and bipolar disorder. Id., at 411, 848 A.2d 1165. In Barron, this court adopted the holding from Home Ins. Co. v. Aetna Life & Casualty Co., supra, 35 Conn.App. 94, 644 A.2d 933, which was also applied in United Services Automobile Assn. v. Marburg, supra, 46 Conn.App. at 104-107, 698 A.2d 914, namely, that "an insured's intent to commit an act may be negated for purposes of an intentional conduct exclusion clause when the insured did not understand the nature or wrongfulness of his conduct, or was deprived of the capacity to control his actions regardless of his understanding of the nature or wrongfulness of his action." (Internal quotation marks omitted.) Allstate Ins. Co. v. Barron, supra, 269 Conn. at 407, 848 A.2d 1165. We, therefore, determined that the dispositive issue was "not whether [the mother's] actions were intentional in the narrow sense that they were deliberate, but whether her intent was negated by her inability to understand the wrongfulness of her conduct or to control her conduct." Id., at 409, 848 A.2d 1165. Ultimately, this court concluded that, "[t]he documents submitted by the plaintiff in support of its motion for summary judgment simply did not address that issue." Id. We conclude that Barron is inapposite to the present case and does not affect the continuing vitality of the Marburg presumption. First, the allegations in the underlying complaint in Barron did not concern sexual misconduct with a minor child. Second, the legal propriety of the Marburg presumption was not at question in Barron. Rather, Marburg and Barron are both cases in which our courts have adopted and applied the standard set forth in Home Ins. Co. v. Aetna Life & Casualty Co., supra, 35 Conn.App. 94, 644 A.2d 933, to determine whether an insured adduced evidence sufficient to defeat summary judgment as to whether mental incapacity rendered the relevant actions unintentional under the intentional acts exclusion clause of an insurance policy. Barron cited to Marburg as a situation in which an insurer had satisfied its burden of demonstrating that no genuine issue of material fact existed with regard to whether the underlying allegations fell completely within the insurance policy's intentional acts exclusion clause, and the insured subsequently failed to proffer sufficient evidence to allow for an inference that the insured was incapable of forming the intent necessary to result in her acts being intentional. Allstate Ins. Co. v. Barron, supra, 269 Conn. at 412, 848 A.2d 1165. In Barron, because there was no claim that the allegations gave rise to a presumption of intent as a matter of law, the insurer had an initially greater burden to demonstrate that there was no genuine issue of material fact on summary judgment than in cases, such as the present one, in which an insurer may rely on a presumption of intent to satisfy its burden on summary judgment. The insurer in Barron ultimately had to demonstrate that, despite the allegations within the complaint that the mother suffered from mental disease at the time of the incident, she nevertheless formed the requisite intent to commit the acts, that her acts were intentional, and that the allegations fell completely within the intentional acts exclusion of the policy. Thus, Barron did not overrule the Marburg presumption; rather, Barron clarified the standard for determining whether an insured sufficiently has negated intent in order to defeat summary judgment in favor of the insurer. Tully also argues in his brief that the Marburg presumption should not apply in the present case because the underlying facts in that case are too dissimilar, insofar as Marburg concerned allegations of sexual assault, including penetrative intercourse, on at least seventy-three occasions. See United Services Automobile Assn. v. Marburg, supra, 46 Conn.App. at 101, 698 A.2d 914. We disagree. In Marburg, our Appellate Court, in presuming intent to harm as a matter of law when an insured has engaged in sexual misconduct with a minor, did not consider any restrictions on the type or manner of sexual assault of a minor by an adult. Id., at 104-106, 698 A.2d 914. This was for good reason. As the Maryland Court of Appeals observed in rejecting an argument that the presumption is inapplicable in a case without a " 'violent' " sexual assault, minor victims of sexual abuse are unable to consent as matter of law, and "[c]hild sexual abuse is an affront to the dignity of the child-an invasion of the child's autonomy-because a child cannot appreciate or comprehend the full nature of the sexual acts.... While it is undoubtedly worse to couple sexual molestation of a child with physical injury, such a distinction differs in degree, not in kind. The essence of child sexual abuse is the violation of the dignitary interest, whether there is physical injury or not." (Citation omitted.) Pettit v. Erie Ins. Exchange, 349 Md. 777, 783-84, 709 A.2d 1287 (1998). Put differently, the very nature of the act of sexual abuse of minors, "inevitabl [y]" causes injury extending to "emotional harm to minors from sexual abuse in all forms"; Maryland Casualty Co. v. Havey, 887 F.Supp. 195, 198 (C.D.Ill.1995) ; regardless of whether the abuser subjectively meant no harm from his actions, and the abuse was not violent in nature. See, e.g., Allstate Ins. Co. v. Troelstrup, 789 P.2d 415, 419-20 (Colo.1990) (rejecting claim that inference should not apply because abuse was not " 'extreme' enough to warrant such a result"); Scudder v. Hanover Ins. Co., 201 Ill.App.3d 921, 929, 147 Ill.Dec. 386, 559 N.E.2d 559 (1990) (presumption of intent applies to fondling of minor's genitals because of emotional harm, despite lack of force); Pettit v. Erie Ins. Exchange, supra, at 783-87, 709 A.2d 1287 (presumption applies in case of fondling of minors' genitalia by diagnosed pedophile who subjectively meant no harm and believed his acts were expression of love); Gearing v. Nationwide Ins. Co., supra, 76 Ohio St.3d at 40, 665 N.E.2d 1115 (concluding that presumption applied in cases of "criminal sexual touching" of children and holding that "[b]ecause harm is inherent in the act of sexual molestation, [insured's] representations that he was subjectively ignorant of the fact that his actions would harm his victims were insufficient to raise a genuine issue of material fact"); Horace Mann Ins. Co. v. Leeber, supra, 180 W.Va. at 379-81, 376 S.E.2d 581 (rejecting insured's reliance on " 'negligent' seduction" in holding presumption applicable to nonviolent fondling of minor's genitalia). Accordingly, we conclude that the Marburg presumption is applicable in the present case, despite the fact that the sexual abuse in Marburg was far more severe than that alleged in the underlying complaint. Because we conclude that the Marburg presumption remains good law and is applicable in the present case, we now consider the terms of the policy, which excluded coverage for "bodily injury . which is either expected or intended by the insured," in light of the allegations contained within the complaint in the underlying civil action. Specifically, we seek to determine whether the allegations of Tully's sexual misconduct with a minor trigger the Marburg presumption and, as a result, fall completely within the policy's intentional acts exclusion. The complaint in the underlying civil action alleges that Tully, in an intoxicated state, grabbed Doe's breast and fondled the buttocks of an eight year old child. The complaint then characterizes these allegations as negligence. The complaint alleges that Doe's injuries "were caused by [Tully's] negligence . in that [he] was under the influence of intoxicating liquor when he committed these actions." The complaint further alleges that "[a]s a result of [Tully's] negligence and carelessness, [Doe] has suffered bodily and emotional injuries, and has been severely and permanently injured." Construing the relevant pleadings "broadly," "realistically" and "reasonably, to contain all that it fairly means," but not "contorted in such a way so as to strain the bounds of rational comprehension"; Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 778, 905 A.2d 623 (2006) ; we conclude that the complaint in the underlying civil action alleged that Tully engaged in sexual misconduct with a minor. That complaint, therefore, alleges presumptively intentional conduct on the part of Tully. First, the complaint alleges that Tully attempted to lure the minor girls by offering to buy them ice cream. The complaint then alleges that Tully grabbed Doe's breast, almost removing her bathing suit top, and fondled the buttocks of an eight year old girl. Marburg aside, to read these allegations as anything other than sexual misconduct with a minor would be to "strain the bounds of rational comprehension." Id. Although the defendants contend that the allegations arise from negligence, rather than deliberate sexual misconduct with a minor, we are not persuaded. "[E]ven when an action is [pleaded] as an unintentional tort [such as negligence], the court examines the alleged activities in the complaint to determine whether the insured intended to commit both the acts and the injuries that resulted. If so, regardless of the title of the action, the court holds the action to be outside the coverage of the policy." (Internal quotations marks omitted.) Middlesex Ins. Co. v. Mara, supra, 699 F.Supp.2d at 450. Nothing about the allegations in the underlying civil action involve a negligent act. That complaint does not, for example, allege that Tully was so intoxicated that he drunkenly fell down and accidentally touched Doe's breast. Rather, the complaint alleges that Tully "proceeded to grab [Doe's] breast, almost completely removing her bathing suit in the process" and "then proceeded to fondle the buttocks of the [eight] year old girl...." Because the complaint in the underlying civil action alleges deliberate sexual misconduct with a minor, we, therefore, conclude that the trial court properly allowed the plaintiff to rely on the Marburg presumption of intent in satisfying its initial burden on summary judgment. Because the Marburg presumption of intent is rebuttable, next we turn to the question of whether the defendants have adduced evidence sufficient to raise a genuine issue of material fact as to Tully's intent. See United Services Automobile Assn. v. Marburg, supra, 46 Conn.App. at 104-106, 698 A.2d 914. To rebut the Marburg presumption, the defendants claim that this court should consider evidence of voluntary intoxication, such as affidavits from physicians or Tully himself, to negate intent. See footnote 6 of this opinion. The plaintiff argues in response that evidence of voluntary intoxication should not be considered to negate Tully's intent. We agree with the plaintiff, and conclude that evidence of voluntary intoxication may not be used to negate intent in situations, as here, in which the defendants seek insurance coverage for a claim arising out of Tully's sexual misconduct with a minor. This court has not considered previously whether evidence of voluntary intoxication may negate intent in the context of insurance claims arising from sexual misconduct with a minor. This also is a relatively novel issue for the country as a whole. In Wiley v. State Farm Fire & Casualty Co., 995 F.2d 457, 465-66 (3d Cir.1993), the United States Court of Appeals for the Third Circuit described, generally, the three approaches courts across the country have taken to resolve this policy issue. Under the first approach, intent is inferred based on the nature and character of the act, and the insured's subjective intent to harm is "wholly irrelevant." Id., at 465. Under this approach, "any question of the inability to form the intent to harm, whether it arises out of alleged mental disease or defect or voluntary intoxication, is immaterial in resolving the insurer's obligation to provide coverage." (Emphasis added.) Id. Put another way, in cases in which intent is inferred, the inference is conclusive, and an insured may not rebut that presumption with evidence of lack of capacity to form the requisite intent for the acts to be considered "intentional." See, e.g., State Farm Fire & Casualty Co. v. Estate of Jenner, 874 F.2d 604, 606-607 (9th Cir.1989) ; Mutual Fire Ins. Co. v. Hancock, 634 A.2d 1312, 1313 (Me.1993) ; American Family Mutual Ins. Co. v. Peterson, 405 N.W.2d 418, 422 (Minn.1987) ; Public Employees Mutual Ins. Co. v. Rash, 48 Wash.App. 701, 705, 740 P.2d 370 (1987) ; N.N. v. Moraine Mutual Ins. Co., 153 Wis.2d 84, 96, 450 N.W.2d 445 (1990). Under the second approach, regardless of the character of the act, an insured is precluded entirely from asserting voluntary intoxication as a defense to an intentional acts exclusion in an insurance policy in any duty to defend case. Wiley v. State Farm Fire & Casualty Co., supra, 995 F.2d at 465-66. The reasoning is that "evidence establishing that the insured was under the influence of intoxicants is of no consequence, for the law must not permit the use of such stimuli to become a defense for one's actions." (Internal quotation marks omitted.) Id., at 465 Essentially, voluntarily becoming intoxicated should not excuse poor behavior or judgment exercised while intoxicated under any set of facts. See, e.g., Capitol Indemnity Corp. v. Evolution, Inc., 293 F.Supp.2d 1067, 1074 (D.N.D.2003) ; Allstate Ins. Co. v. Sherrill, 566 F.Supp. 1286, 1288 (E.D.Mich.1983), aff'd, 735 F.2d 1363 (6th Cir.1984) ; Prasad v. Allstate Ins. Co., 644 So.2d 992, 994-95 (Fla.1994) ; Dolan v. State Farm Fire & Casualty Co., 573 N.W.2d 254, 257 (Iowa 1998) ; Group Ins. Co. of Michigan v. Czopek, 440 Mich. 590, 600-601, 489 N.W.2d 444 (1992) ; Hanover Ins. Co. v. Newcomer, 585 S.W.2d 285, 289 (Mo.App.1979) ; Beckwith v. State Farm Fire & Casualty Co., 120 Nev. 23, 27, 83 P.3d 275 (2007). The third approach deems it appropriate for only a fact finder to consider and determine the insured's intent when an insured claims incapacity to form the requisite intent. Wiley v. State Farm Fire & Casualty Co., supra, 995 F.2d at 466. Importantly, under this approach, even in situations in which intent is otherwise presumed, "this factual inquiry in effect supersedes scrutiny of the nature and character of the act committed and renders application of the inferred intent rule inappropriate." Id.; see, e.g., Globe American Casualty Co. v. Lyons, 131 Ariz. 337, 339-40, 641 P.2d 251 (App.1981) ; State Farm Fire & Casualty Co. v. Morgan, 258 Ga. 276, 276-77, 368 S.E.2d 509 (1988) ; Hanover Ins. Co. v. Talhouni, 413 Mass. 781, 785-86, 604 N.E.2d 689 (1992) ; Burd v. Sussex, 56 N.J. 383, 398-99, 267 A.2d 7 (1970). We adopt the second approach, and conclude that, as a matter of law, evidence of voluntary intoxication may not be used to negate intent for the purposes of determining whether an insurer owes a duty to defend an insured in cases in which the insured's intent is presumed because the conduct in question involved sexual misconduct with a minor. Under the second approach, evidence of voluntary intoxication may never, in any case, serve to negate intent for insurance purposes. Wiley v. State Farm Fire & Casualty Co., supra, 995 F.2d at 465. For a variety of public policy considerations, we conclude the second approach is persuasive in the context of sexual misconduct with a minor, even without considering whether it extends to other acts. The first policy consideration for holding that voluntary intoxication should not operate to negate intent is not to relieve the insured of responsibility, financial and otherwise, for his otherwise intentional actions. One federal court, applying Michigan state law, stated that, "public policy demands that a voluntary departure of one's good judgment and rational decision-making abilities should not permit the insured to abrogate his financial responsibility to those he brutally injures." Allstate Ins. Co. v. Sherrill, supra, 566 F.Supp. at 1288. Further, permitting voluntary intoxication to negate intent "would allow commission of a crime without the requisite responsibility" and would "create the ability to act unwisely without the requisite financial responsibility." Group Ins. Co. of Michigan v. Czopek, supra, 440 Mich. at 601, 489 N.W.2d 444. Another policy consideration in support of our conclusion that evidence of voluntary intoxication may not negate intent is that, even though a person is intoxicated at the time, the conduct is such that a reasonable insured would not expect it to fall within his policy coverage. See American Family Mutual Ins. Co. v. Peterson, supra, 405 N.W.2d at 422 (voluntary intoxication did not negate intent when man struck woman on head with hammer because reasonable insured would not expect that type of assault to be covered); see also Dolan v. State Farm Fire & Casualty Co., supra, 573 N.W.2d at 257 (insured cannot claim that intentional assault was unexpected or unintended for purpose of insurance coverage). Finally, in determining whether evidence of voluntary intoxication should negate intent, some state courts have looked to their state's criminal statutes to determine, as an expression of public policy, whether the legislature would have intended for evidence of voluntary intoxication to negate intent in duty to defend cases. For example, in Michigan, the state's legislators had "distinguishe[d] between a lack of mental capacity due to mental illness and that which results from acute voluntary alcohol or drug intoxication. In the latter situation, even though a criminal defendant's freedom and liberty [were] at stake, a defense of voluntary intoxication [could] not be tendered. To allow such a defense would create an intolerable precedent of self-immunity." Allstate Ins. Co. v. Sherrill, supra, 566 F.Supp. at 1288. The court then applied that distinction to the insurance context, holding that, "where an insured voluntarily ingests alcohol or drugs he may not assert a defense to an exclusionary clause . based on his lack of capacity to form the intent to act or harm, where that defense is based solely on the effects of the alcohol and/or drugs." Id. We find these policy rationales that hold the insured responsible for his intentional actions to be consistent with existing Connecticut statutes and case law. Turning first to our own criminal statutes, we find support in General Statutes § 53a-7. That statute expressly provides that, "[i]ntoxication shall not be a defense to a criminal charge . if the actor, due to self-induced intoxication, is unaware . such unawareness, disregard or failure to perceive shall be immaterial." (Emphasis added.) General Statutes § 53a-7. Further, the official comment following § 53a-7 states that, "where the [criminal] offense is based on recklessness or criminal negligence, unawareness of the actor due to self-induced intoxication does not excuse him. For example, a defendant charged with criminally negligent homicide cannot argue that he was too intoxicated to be aware of the risks involved in his conduct and therefore should not be held liable for his unawareness." Commission to Revise the Criminal Statutes, Penal Code Comments, Conn. Gen.Stat. Ann. § 53a-7 (West 2012), commission comment. Thus, the statutory language expressly provides that voluntary intoxication does not excuse a defendant from liability for criminal negligence. We find further legislative support for precluding evidence of voluntary intoxication from negating intent in the insurance context in situations involving the insured's sexual misconduct with a minor within General Statutes § 53a-13, the mental capacity affirmative defense statute. Section 53a-13 expressly precludes voluntary intoxication as a lack of mental capacity defense. Because our legislature specifically precluded voluntary intoxication as a lack of mental capacity defense in the criminal context, we extend that statement of public policy to the insurance context, in which the insured's money, rather than his freedom, is at stake. See Allstate Ins. Co. v. Sherrill, supra, 566 F.Supp. at 1288 (extending legislature's distinction between lack of mental capacity and acute voluntary intoxication in criminal context to civil insurance context). Finally, the second approach set forth in Wiley is consistent with our holding and analysis in Barron. Unlike the first approach, which serves as a total bar precluding an insured from presenting any evidence of any lack of capacity defenses, including evidence of mental disease or defect, in cases in which intent is inferred based on the nature of the act, the second approach allows an insured to present evidence of mental disease or defect, aside from evidence of voluntary intoxication, to negate intent in the insurance context. Thus, we conclude that the second approach is consistent with our case law that allows evidence of mental disease or defect to negate intent. See, e.g., Allstate Ins. Co. v. Barron, supra, 269 Conn. at 408-13, 848 A.2d 1165 (considering extrinsic evidence to determine whether insured lacked mental capacity to negate intent); United Services Automobile Assn. v. Marburg, supra, 46 Conn.App. at 107-10, 698 A.2d 914 (allowing insured to provide affidavits to demonstrate lack of capacity to negate intent, but ultimately finding that evidence was insufficient). The defendants, however, claim that precluding voluntary intoxication from negating intent would undermine the ability of victims to receive compensation from an insurance company in an automobile accident involving driving under the influence. We disagree. Comparing the situation at hand to an accident involving an intoxicated driver is akin to comparing apples and oranges. In such an accident, a driver voluntarily consumes alcohol, gets behind the wheel of a vehicle, and then accidentally injures another driver or pedestrian on the road. In that situation, an insurance company would have a duty to defend the intoxicated driver because the injury of the other person was unintentional, however foreseeable. Here, however, Tully voluntarily consumed alcohol, went to a local park, attempted to lure children, grabbed one child's breast, and fondled the buttocks of another. The act of sexual molestation of minors was not unintentional or accidental. The situation at hand is more similar to a scenario in which a driver voluntarily consumes alcohol, gets behind the wheel of a car, sees a pedestrian in the road and then intentionally hits the person with his vehicle. In that situation, the driver's act of injuring the pedestrian was intentional, despite the driver's voluntary intoxication, which lowered his inhibition. Accordingly, we conclude that evidence of voluntary intoxication may not negate intent in duty to defend cases in which the insured's intent is inferred from an underlying complaint that alleges the insured committed sexual misconduct with a minor. Applying this rule to the present case, the trial court properly granted the plaintiff's motion for summary judgment because the defendants failed, as a matter of law, to rebut the presumption of intent based on Tully's sexual misconduct with a minor. The judgment is affirmed. In this opinion the other justices concurred. In accordance with our policy of protecting the privacy interests of the victims of sexual assault and the crime of risk of injury to a child, we decline to identify the victims or others through whom the victims' identities may be ascertained. See General Statutes § 54-86e. Doe appealed, and Tully cross appealed, from the judgment of the trial court to the Appellate Court, and we transferred the appeal and the cross appeal to this court pursuant to General Statutes § 51-199(c) and Practice Book § 65-2. Tully also was arrested and charged with various criminal offenses. He entered a plea of nolo contendere to sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a)(2), unlawful restraint in the second degree in violation of General Statutes § 53a-96, and risk of injury to a child in violation of General Statutes § 53-21(a)(1). He was sentenced to ten years imprisonment, execution suspended after thirty months, and five years of probation. The complaint in the underlying civil action was later amended to allege a single negligence claim against Tully. The plaintiff also sought a determination as to whether it owed a duty to indemnify Tully. The trial court did not decide that issue, however, as it determined that the plaintiff did not have a duty to defend Tully. See DaCruz v. State Farm Fire & Casualty Co., 268 Conn. 675, 688, 846 A.2d 849 (2004) ("[b]ecause the duty to defend is significantly broader than the duty to indemnify, where there is no duty to defend, there is no duty to indemnify" [internal quotation marks omitted] ). To rebut the presumption of intent, Tully offered affidavits from a licensed physician and a licensed psychologist describing his intoxication at the time of the incident and his alcoholism. First, Tully attached an affidavit from a licensed physician, who averred that "Tully's level of intoxication at the time of the incident was such that it is unlikely he would have maintained the capacity to form intent or to act with an expectation to cause harm or bodily injury." Second, Tully attached the affidavit of a licensed psychologist who conducted a psychological evaluation and sex offender risk assessment on Tully and stated that his "conduct on [July 2, 2012] was the result of excessive alcohol consumption due to his alcohol dependence and . that it is unlikely he would have had the intent or expectation to cause harm or bodily injury . before or during the incident at issue." Finally, Tully provided his own affidavit in which he stated that he is an alcoholic and was one at the time of the incident. He also attested that he did not "recall the events of [July 2, 2012] other than drinking alcohol before going to Winding Trails [Park], drinking alcohol while at Winding Trails [Park], and then being arrested." Tully also stated that he did not intend to cause harm to anyone. We note that, six days before we transferred the appeal to this court, the trial court, Peck, J., rendered judgment by stipulation in the underlying civil action in favor of Doe in the amount of $90,000. This stipulation was entered pursuant to an agreement between the parties in that case. Although the underlying civil action has settled, the defendants are not precluded from pursuing the present appeals. "If the insurer declines to provide its insured with a defense and is subsequently found to have breached its duty to do so, it bears the consequences of its decision, including the payment of any reasonable settlement agreed to by the plaintiff and the insured, and the costs incurred effectuating the settlement up to the limits of the policy." Capstone Building Corp. v. American Motorists Ins. Co., 308 Conn. 760, 806, 67 A.3d 961 (2013). The plaintiff also denied coverage on the ground that Doe's complaint failed to allege an " 'occurrence' " under the policy, defined as an " 'accident,' " claiming that it had no duty to defend Tully because his actions did not fall within the scope of the policy. "A typical definition of the term 'accident' is 'a lack of intention or necessity, often opposed to design; an unforeseen unplanned event; [a] sudden event or change occurring without intent or volition . and producing an unfortunate result.' . In short, the relevant inquiry in determining whether an accident has occurred is whether the injuries at issue were caused by the intentional design of the insured, or rather, by a sudden, unforeseen event." (Citations omitted.) Vermont Mutual Ins. Co. v. Walukiewicz, 290 Conn. 582, 594, 966 A.2d 672 (2009). Although this court has sometimes treated the analyses of whether an act constitutes an "occurrence," defined as an "accident," and whether the act falls within the intentional act exclusion separately; see, e.g., id., at 597, 966 A.2d 672 ; the ultimate inquiry-whether the act was intentional-is the same. We therefore need not conduct a separate analysis as to whether Tully's actions constitute an "occurrence." See also Allstate Ins. Co. v. Suchecki, United States District Court, Docket No. 3:12CV01566 (VLB), 2014 WL 655354 (D.Conn. February 20, 2014) (concluding that act did not meet definition of " 'occurrence' " under insurance policy, and also that act fell within intentional act exclusion of policy "for the same reasons"). We note that neither of the defendants has asked us to overrule Marburg on the ground that the presumption of intent established in that case is doctrinally unsound as a general proposition. Although there was, at one point, a split of authority as to whether a presumption of intent to harm could be inferred as a matter of law in cases concerning the sexual abuse of minors by adults, with the vast majority of state courts adopting the inference, we note that "the supreme courts of the other four states that previously followed the minority approach have all now adopted the majority approach." State Farm Fire & Casualty Co. v. Davis, 612 So.2d 458, 464 (Ala.1993) ; see Gearing v. Nationwide Ins. Co., supra, 76 Ohio St.3d at 37, 665 N.E.2d 1115 (describing inferred intent in cases concerning sexual abuse of minors as "unanimous rule" by 1993); see also Pettit v. Erie Ins. Exchange, supra, 349 Md. at 788 and n. 5, 709 A.2d 1287 (discussing resolution of split). Similarly, neither of the defendants claim that the inferred intent rule is inapplicable on the ground that the girls were not minors, or even that Tully was subjectively unaware of their ages, when he acted in this case. See Allstate Ins. Co. v. Patterson, 904 F.Supp. 1270, 1282 n. 11 (D.Utah 1995) (discussing split of authority with respect to whether inferred intent rule applies when victim is adult); see also Northern Security Ins. Co. v. Perron, 172 Vt. 204, 214-15, 777 A.2d 151 (2001) (discussing split of authority with respect to whether inferred intent rule should apply when perpetrator is minor, rather than adult). The defendants also argue that the initial burden was on the plaintiff, as the party seeking summary judgment, to establish the absence of any genuine issue as to Tully's mental condition. We disagree. The initial burden is on the plaintiff to establish that there are no genuine issues of material fact as to whether the allegations fall entirely within the policy exclusion. See, e.g., Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co., supra, 254 Conn. at 398-99, 757 A.2d 1074. Because the complaint in the underlying civil action alleges sexual misconduct with a minor, thus triggering the Marburg presumption, the plaintiff satisfied its burden, and the burden then shifted to the defendants to establish that his actions were not intentional, based on the standard set forth in Allstate Ins. Co. v. Barron, supra, 269 Conn. at 407-406, 848 A.2d 1165. See United Services Automobile Assn. v. Marburg, supra, 46 Conn.App. at 106, 698 A.2d 914. The defendants claim that the plaintiff failed to establish that Tully's intoxication was voluntary rather than involuntary and, thus, there was a genuine issue of material fact that should have defeated the plaintiff's motion for summary judgment as to whether the plaintiff had a duty to defend him. They further claim that the affidavits they submitted support the proposition that his intoxication was involuntary because of his alcoholism. We disagree. First, the insurer's burden of proof on a motion for summary judgment is to establish that no genuine issue of material fact exists as to its duty to defend. Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co., supra, 254 Conn. at 397-98, 757 A.2d 1074. To do so, the insurer must compare the policy terms with the four corners of the complaint. Id., at 398-99, 757 A.2d 1074. Involuntary intoxication is "a very rare thing, and can never exist where the person intoxicated knows what he or she is drinking, and drinks the intoxicant voluntarily, and without being made to do so by force or coercion." 2 Criminal Practice Manual § 40:2 (West 2016). The complaint in the underlying civil action did not allege that Tully's intoxication was involuntary. Rather, it alleged that Tully "approached [Doe] and her friends while he was in an intoxicated state," and that Tully "was under the influence of intoxicating liquor when he committed these actions." On the basis of a reasonable reading of the allegations in a manner not to distort rational comprehension; see, e.g., Deming v. Nationwide Mutual Ins. Co., supra, 279 Conn. at 778, 905 A.2d 623 ; we do not read the complaint in the underlying civil action to give rise to a genuine issue of material fact as to whether Tully's intoxication was voluntary or involuntary. On the other hand, the most common policy rationale for allowing evidence of voluntary intoxication to negate intent-and leaving that question for the fact finder to decide-is the public interest in compensating victims. See, e.g., Hanover Ins. Co. v. Talhouni, supra, 413 Mass. at 786, 604 N.E.2d 689 (citing "public interest that the victim be compensated, and the view that the victim is aided by the narrowest view of the policy exclusion" [internal quotation marks omitted] ); Burd v. Sussex, supra, 56 N.J. at 398-99, 267 A.2d 7 (citing public interest "that the victim be compensated, and the victim's rights being derivative from the insured's, the victim is aided by the narrowest view of the policy exclusion consistent with the purpose of not encouraging an intentional attack"). Although a policy interest in compensating victims exists, that interest must be balanced by the fact that insurance policyholders share a risk, as reflected by the cost of premiums. As the Ohio Supreme Court has aptly observed, "requiring an insurer to indemnify an insured who has engaged in sexual abuse of a child subsidizes the episodes of child sexual abuse of which its victims complain, at the ultimate expense of other insureds to whom the added costs of indemnifying child molesters will be passed," and "the average person purchasing homeowners insurance would cringe at the very suggestion that he was paying for such coverage . [a]nd certainly . would not want to share that type of risk with other homeowners [policyholders]." (Internal quotation marks omitted.) Gearing v. Nationwide Ins. Co., supra, 76 Ohio St.3d at 39, 665 N.E.2d 1115. General Statutes § 53a-7 provides: "Intoxication shall not be a defense to a criminal charge, but in any prosecution for an offense evidence of intoxication of the defendant may be offered by the defendant whenever it is relevant to negate an element of the crime charged, provided when recklessness or criminal negligence is an element of the crime charged, if the actor, due to self-induced intoxication, is unaware of or disregards or fails to perceive a risk which he would have been aware of had he not been intoxicated, such unawareness, disregard or failure to perceive shall be immaterial. As used in this section, 'intoxication' means a substantial disturbance of mental or physical capacities resulting from the introduction of substances into the body." (Emphasis added.) General Statutes § 53a-13 provides in relevant part: "(a) In any prosecution for an offense, it shall be an affirmative defense that the defendant, at the time he committed the proscribed act or acts, lacked substantial capacity, as a result of mental disease or defect, either to appreciate the wrongfulness of his conduct or to control his conduct within the requirements of the law. "(b) It shall not be a defense under this section if such mental disease or defect was proximately caused by the voluntary ingestion, inhalation or injection of intoxicating liquor or any drug or substance, or any combination thereof, unless such drug was prescribed for the defendant by a prescribing practitioner, as defined in subdivision (22) of section 20-571, and was used in accordance with the directions of such prescription...." We acknowledge the defendants' reliance on evidence establishing that Tully is alcohol-dependent, and that the actions at issue resulted from excessive intoxication stemming from his alcoholism. To this end, Tully himself claims that his alcoholism was " 'out of control,' " precluding him from forming the intent to harm anyone when he committed the acts at issue in this case. See footnote 6 of this opinion. Consistent with our legislature's pronouncement on this issue, we acknowledge that alcohol dependency, or alcoholism, is itself a recognized mental disease or disorder. See General Statutes § 17a-680 (1) (" '[a]lcohol-dependent person' means a person who meets the criteria for moderate or severe alcohol use disorder, as described in the most recent edition of the American Psychiatric Association's 'Diagnostic and Statistical Manual of Mental Disorders' "); see also Skakel v. Benedict, 54 Conn.App. 663, 677, 738 A.2d 170 (1999) (statutory privilege for psychiatric records under General Statutes § 52-146d [2] applicable to alcoholism treatment). The defendants do not, however, cite any authorities suggesting that intoxication is any less voluntary as a matter of law when it is spurred by an alcoholic's substance dependency, and, as observed by the plaintiff, the case law on this point holds expressly to the contrary. See American Family Mutual Ins. Co. v. Peterson, supra, 405 N.W.2d at 422 (holding, in hammer attack committed by diagnosed alcoholic, that "voluntary intoxication may not be used to deny an intent to injure one's victim where the circumstances of the assault otherwise compel an inference of intent to injure" and observing that "[n]or do we think that other kinds of assaults, such as rape, if committed in an alcoholic blackout, are within an insured's reasonable expectations of insurance coverage"); see also State v. Johnson, 327 N.W.2d 580, 582-83 (Minn.1982) (describing as "weak," and "not . accepted in any jurisdiction," defendant's claim "that a chronic alcoholic's intoxication is really involuntary intoxication and that therefore the defense of involuntary intoxication, which applies to all crimes, even general intent crimes, can be raised whenever a chronic alcoholic commits a crime while intoxicated"); Commonwealth v. Kuhn, 327 Pa.Super. 72, 82, 475 A.2d 103 (1984) ("involuntary intoxication cannot, as a matter of law, be established through evidence showing that the criminal defendant was a chronic alcoholic incapable of voluntarily refraining from ingestion of alcohol"); State v. Allert, 117 Wash.2d 156, 167-68, 815 P.2d 752 (1991) (holding that, in absence of statutory direction to consider alcoholism or other addictive diseases in sentencing, "voluntary use of alcohol is an improper factor to consider in deciding whether to impose an exceptionally low sentence"); State ex rel. Jacobus v. State, 208 Wis.2d 39, 51-54, 559 N.W.2d 900 (1997) (statute prohibiting prosecution of alcoholic for public drunkenness or consumption of alcohol did not preclude prosecution for violation of bail condition precluding consumption of alcohol); cf. In the Matter of Moulton, 198 App.Div.2d 595, 603 N.Y.S.2d 240 (1993) (rejecting unemployment insurance claim because "[i]t was not claimant's alcoholism but his voluntary disregard of a legitimate condition of employment, the maintenance of an operator's license, which mandated his termination"). We need not, however, consider whether voluntary intoxication may negate intent in cases in which intent is not inferred, as a matter of law, or in cases in which intent is inferred for acts other than sexual misconduct with minors. Because we hold that evidence of voluntary intoxication may not, as a matter of law, negate intent for purposes of insurance coverage arising out of a claim against the insured for sexual misconduct with a minor, we need not reach the question of whether the evidence presented by the defendants was sufficient to create a genuine issue of material fact.

12486175

Charles ILL v. Ellen MANZO-ILL.

Ill v. Manzo-Ill

2016-07-12

No. 37070.

1176

1190

142 A.3d 1176

142

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

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

Fastcase

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

Charles ILL v. Ellen MANZO-ILL.

Charles ILL v. Ellen MANZO-ILL. No. 37070. Appellate Court of Connecticut. Argued April 14, 2016. Decided July 12, 2016. James H. Lee, Fairfield, for the appellant (defendant). Paul T. Tusch, with whom was Danielle J.B. Edwards, Stamford, for the appellee (plaintiff). DiPENTIMA, C.J., and KELLER and BISHOP, Js.

6865

41930

KELLER, J. The defendant, Ellen Manzo-Ill, appeals from the judgment of the trial court dismissing her postdissolution motion to modify her alimony award. On appeal, the defendant claims that the trial court erred in concluding that (1) Practice Book § 25-34(e) authorized it to dismiss her motion for modification, and (2) she failed to show good cause for her failure to reclaim her motion within three months of the date it was filed and failed to prosecute the motion with reasonable diligence. We affirm the judgment of the trial court. The following facts and procedural history are relevant to this appeal. On August 19, 2008, following a five day trial, the court, Shay, J., dissolved the marriage of the plaintiff, Charles Ill, and the defendant. As set forth in the memorandum of decision rendering the judgment of dissolution, the court found that the defendant was fifty-two years old and "employed throughout the marriage, first by IBM and then by AT & T, up through 1998 when the family moved to Paris, France, after which [time] she became a full time homemaker and has not worked outside of the home since. Her sole reported net income of approximately $1300 per month is derived from interest and dividends. For much of the marriage, her annual earnings, well into six figures, matched or exceeded those of the [plaintiff].... The [plaintiff] is fifty-four years old.... He has a BS in mechanical engineering, as well as an MBA.... He has been employed throughout the marriage reaching the top rungs of the corporate ladder." The court further noted that the plaintiff's last employment prior to the dissolution was at Avaya as a senior vice president of global sales. The court found: "His annual compensation there was $750,000 including incentive pay. At some point, the company was acquired by venture capitalists and went private. He left in May of this year, and he is currently looking for work." In that portion of the judgment addressing alimony, the dissolution court ordered each of the parties to pay nominal alimony of $1 per year to one another until the death of either party or the remarriage of the other party, whichever shall sooner occur, and stated: "It is the intention of the court that any future alimony order be based solely upon the earned income from employment, and not upon investment or other passive income." (Emphasis omitted.) The court also indicated: "[I]n making its award of nominal periodic alimony . the court . finds . that each party has a demonstrable and substantial earning capacity and an ability to support himself or herself without the financial assistance of the other; that the wife's medical condition is treatable with medication and does not adversely limit her ability to maintain gainful employment in any significant manner; and that the court has particularly considered the length of the marriage, the ages of the parties, their education and past employment history, the ages of the children and the diminished caretaker role for each parent, and the award of property . including income-producing assets, as well as the division of the [plaintiff's] pension and other retirement assets of the parties." Neither party was satisfied with the terms of the dissolution judgment. After the judgment of dissolution was rendered, on October 3, 2008, in response to the plaintiff's motion for reargument and reconsideration, the court filed a corrected memorandum of decision, but it did not alter the terms of the alimony order. Subsequently, on October 23, 2008, the plaintiff filed an appeal that was withdrawn on June 8, 2010. On September 19, 2008, the defendant filed a motion to open the judgment, which the court denied on April 20, 2010. Later, on May 24, 2010, the court denied the defendant's motion to reargue her motion to open the judgment, noting that the motion to open had been reclaimed more than three months after the date of its filing in derogation of Practice Book § 25-34(e). Although the defendant filed a motion for extension of time to file an appeal from this denial on June 14, 2010, she withdrew her motion for extension of time on June 24, 2010 and did not appeal from the court's denial of the motion to open. On April 6, 2010, shortly before the court denied the defendant's motion to open the judgment, she filed the motion for modification of alimony that is the subject of the present appeal. The defendant sought a modification on the basis of a substantial change in the parties' circumstances. Specifically, her motion alleged in relevant part as follows: "Since the date of the [decision dissolving the parties' marriage], the circumstances concerning this case have changed substantially in that the plaintiff is currently employed and earning an income, while the defendant is not currently employed, and that a substantial amount of time has elapsed since the judgment was entered and that as a result of the plaintiff's appeal of the judgment, the defendant has been denied access to the funds necessary to support herself." The funds to which the defendant claimed she had been denied access would have been derived from the property distribution ordered by the court in the judgment of dissolution. After filing her motion for modification, the defendant initiated discovery, which she pursued throughout 2010 by serving the plaintiff with requests for production, to which the plaintiff objected; noticing a deposition of the plaintiff, for which he sought a protective order because he was unavailable on the date scheduled for the deposition; and issuing numerous subpoenas to various entities associated with the plaintiff's earnings and investments, all of which the plaintiff moved to quash. On December 20, 2010, the court, Wenzel, J., overruled all of the plaintiff's objections to the defendant's requests for production. As a result, the plaintiff's motions to quash were marked off as moot by the court on that same date. Six months later, on July 20, 2011, the defendant filed a motion for contempt claiming that the plaintiff had failed to comply fully with her discovery requests. The July 20, 2011 motion for contempt was marked off on August 1, 2011. On October 26, 2011, the plaintiff filed a motion for order of compliance with discovery pursuant to Practice Book § 13-14. No action has ever been taken on that motion. On February 22, 2012, almost two years after the defendant had filed her motion for modification, the plaintiff moved to dismiss it on the grounds that the defendant had not prosecuted her motion with reasonable diligence and had failed to reclaim it within three months from its filing date pursuant to Practice Book § 25-34(e). The plaintiff claimed that, in an attempt to circumvent the prohibition against reclaiming a motion after a period of three months from its filing date, the defendant had contacted the family caseflow coordinator unilaterally and had requested that her motion for modification be placed on the calendar. Further, the plaintiff argued that he had provided his last supplemental document production in response to the defendant's discovery requests in August, 2011, that the defendant had taken no action in court on her motion since that date, and that she also had failed to comply with his requests for production. The defendant responded by filing another motion for contempt against the plaintiff on February 24, 2012, in which she claimed that the plaintiff still had failed to comply with discovery. The motion for contempt was marked off on March 19, 2012. The defendant renoticed the deposition of the plaintiff for April 3, 2012, but it did not take place. On April 16, 2012, the defendant filed an objection to the plaintiff's motion to dismiss, arguing that an exception to Practice Book § 25-34(e) existed because her motion for modification twice had been scheduled for a hearing on a date certain. On May 21, 2012, the court, Schofield, J., sustained the defendant's objection to the plaintiff's motion to dismiss the defendant's motion for modification. Subsequent to Judge Schofield's ruling, the defendant renewed and expanded her discovery efforts. Between April 18, 2012, and November 14, 2012, she filed motions for commissions to take out-of-state depositions of various business entities connected to the plaintiff, but none of the depositions occurred either because the defendant did not pursue them as scheduled or the defendant failed to respond to and seek resolution of motions to quash and for protective orders sought by the plaintiff. For nearly a year, between November 14, 2012, and November 21, 2013, the defendant did not make further filings. On November 21, 2013, without filing a motion for a commission, she issued a subpoena to IBM for a deposition, which the plaintiff moved to quash. The plaintiff also sought a protective order. Despite initiating efforts to take numerous depositions throughout the pendency of her motion to modify, the defendant admits she never took a single deposition. At no time after Judge Wenzel's decision overruling the plaintiff's objection to the defendant's requests for production on May 20, 2010, did the defendant obtain a ruling by the court that moved forward the discovery impasse she alleged to exist or that found that the plaintiff was noncompliant with the rules of discovery. On December 26, 2013, the plaintiff filed a second motion to dismiss the defendant's motion for modification, which is the subject of this appeal. The plaintiff's motion to dismiss sought dismissal pursuant to Practice Book § 14-3, 25-34(e), and 25-48. In his motion, the plaintiff alleged that the defendant's delay in pursuing her motion for modification had not been reasonable and that to permit the defendant to continue to intermittently resurrect and then abandon her discovery efforts, or to pursue her motion after ignoring it for a significant period of time, worked a prejudice on the plaintiff by virtue of: (a) his being subjected to a new round of discovery after previously providing extensive documentation several years earlier; (b) his having to incur legal fees to defend himself against a motion and discovery attempts previously abandoned by the defendant; and (c) his having to stand ready for trial for several years while the defendant continued to decide whether to proceed with her motion. The defendant responded by issuing another subpoena, dated January 3, 2014, to the Dowling Group, the plaintiff's accounting firm, to which the plaintiff responded by filing a motion to quash and a motion for a protective order. The defendant filed an objection to the plaintiff's motion to dismiss on February 19, 2014. In her objection, she claimed that she had obtained documents pursuant to subpoenas from multiple entities but still needed time to serve additional subpoenas upon several other entities, and that she had not obtained the plaintiff's tax records. She also complained that, with respect to her discovery efforts, the plaintiff had engaged in obstructionist behavior. The court heard oral argument on the motion to dismiss on February 24, 2014. On May 14, 2014, the court granted the plaintiff's motion to dismiss. In its memorandum of decision, the court set forth the protracted procedural history leading to the plaintiff's motion to dismiss the defendant's motion for modification of alimony. In its analysis, the court stated in relevant part: "Upon a review of the court file, it appears that much of the defendant's third party discovery was initiated well before February, 2013. While the defendant's counsel may have had follow-up discussions in 2013 to secure compliance with the subpoenas that were served, and likely spent time in 2013 reviewing the material that was produced, these activities do not show sufficient good cause to excuse the delay in prosecuting the defendant's motion.... There is also nothing in the court file to indicate that the plaintiff was engaging in 'obstructionism and bad faith delay tactics' during this time that would excuse the defendant's delay in prosecuting her motion. Between May 24, 2012, and February 6, 2014, the defendant filed only two motions, both of which were for commissions to take out-of-state depositions . and the parties were before the court just three times, again, in connection with motions for commissions.... The defendant has failed to show good cause for her delay in prosecuting a four year old motion for modification.... Under Practice Book § 25-34(e), the defendant's motion for modification is stale, it has not been diligently prosecuted, and it will not be considered by the court." The court granted the plaintiff's motion to dismiss. Thereafter, the court denied the defendant's motion for reargument and reconsideration. This appeal followed. I We first address the defendant's claim that the court erroneously concluded that Practice Book § 25-34(e) authorized it to dismiss her motion for modification of alimony. Because the propriety of the court's imposition of the sanction of dismissal necessarily depends on the propriety of its legal construction of the rule, our review is plenary. See Wexler v. DeMaio, 280 Conn. 168, 181-82, 905 A.2d 1196 (2006). "[T]he interpretive construction of the rules of practice is to be governed by the same principles as those regulating statutory interpretation." (Internal quotation marks omitted.) In re Shanaira C., 297 Conn. 737, 758, 1 A.3d 5 (2010). "When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply.... In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.... When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter...." (Internal quotation marks omitted.) Id., at 757-58, 1 A.3d 5. We begin with an examination of the language of Practice Book § 25-34(e), which provides in relevant part: "Unless for good cause shown, no motion may be reclaimed after a period of three months from the date of filing." The rule neither expressly provides for the sanction of dismissal nor expressly forbids the imposition of such sanction. The rule, however, plainly authorizes a sanction in that, absent a showing of good cause, "no motion may be reclaimed" after three months of its filing. Practice Book § 25-34(e). Reclaiming a motion is the only way to have it presented to the court for a hearing, for in the absence of a party's reclaiming the motion, it would not be placed on the calendar. Thus, the unmistakable effect of precluding a party from reclaiming a motion is to preclude a party from obtaining a hearing on such motion. The consequence of failing to secure a hearing on a motion is tantamount to losing the right to have it considered at all. Insofar as there is no practical difference between precluding a party from obtaining a hearing on a motion and a dismissal of such motion, we are not persuaded that the rule does not permit a court to clear its docket by dismissing a motion that, by operation of the rule, it is unable to entertain. Furthermore, it is a logical consequence of the operation of Practice Book § 25-34(e) for a court to grant a motion to dismiss a motion to which the rule applies because a motion that is not reclaimed or withdrawn might remain pending indefinitely if never acted upon. The defendant argues that, procedurally, § 25-34(e) is best addressed as a part of a final hearing on the merits, as opposed to being used to dismiss or deny a motion before any such hearing commences. This position defies common sense, and would eviscerate the provisions of § 25-34(e). It would require the court unnecessarily to conduct a full hearing on the motion in order to determine whether to dismiss it or render a decision on its merits. If a court, for docket management purposes, chooses to confer absolute finality to the issue of whether a party has lost the right to have the motion considered by ordering its dismissal, such an action does not, for all practical purposes, alter the intended consequence of the rule. A dismissal appropriately lays any issue as to the motion's viability, finally, to rest. Otherwise, the result is an unworkable situation in which a court could be faced with repeated attempts by the movant to reclaim the motion, subject to repeated objections from the nonmovant that the rule prohibits the court from considering it. This situation would place the nonmovant in the untenable position of having to be perpetually poised to defend the stale motion. To the extent that there is any ambiguity as to whether Practice Book § 25-34(e) authorizes a dismissal, we are guided by the relationship of that rule to other rules of practice and common-law principles governing the efficient disposition of litigation. We note that the court, faced with a case that had been languishing on its docket for years, also had other, similar, means to control the pace of litigation before it. In the present case, the plaintiff based his motion to dismiss not only on Practice Book § 25-34(e), but on the failure "to prosecute an action with reasonable diligence" ground of Practice Book § 14-3. Although the defendant urges us to conclude that the court dismissed the motion solely on the basis of its reliance on § 25-34(e), the court's memorandum of decision reflects that it relied on § 14-3, which is incorporated into the Practice Book chapter governing family matters by Practice Book § 25-48, as well. In addition to finding that the defendant failed to establish good cause for the delay in the pursuit of her motion to modify under § 25-34(e), the court also found that the motion "has not been diligently prosecuted," thereby making a finding that was unmistakably related to the plaintiff's reliance on § 14-3. Section 14-3, when applicable, specifically authorizes the court to "render a judgment dismissing the action...." The omission of a specific citation to § 14-3 in the court's decision does not diminish or invalidate the court's specific finding, which is required under that rule, that the defendant had failed to diligently prosecute her motion. Such an interpretation of the court's opinion would elevate form over substance. It is clear that the court relied on the precepts of § 14-3, even though it did not expressly cite that rule. With respect to the court's authority under Practice Book § 14-3, we observe that the plaintiff's second motion to dismiss was filed on December 26, 2013 and was argued on February 24, 2014. Thus, the two week notice requirement of § 14-3 was satisfied in the present case. The parties do not dispute that the defendant's motion for modification of alimony, postjudgment, is an "action." The definition of an "action" was discussed in In re Investigation of the Grand Juror, 188 Conn. 601, 452 A.2d 935 (1982). "In a general sense, the word action means the lawful demand of one's right in a court of justice; and in this sense it may be said to include any proceeding in such a court for the purpose of obtaining such redress as the law provides.... It includes not only the usual civil action instituted by process but also proceedings initiated by petition . stipulation . or motion." (Citations omitted; internal quotation marks omitted.) Id., at 606, 452 A.2d 935. Finally, we note that "[t]he power of a court to manage its dockets and cases by the imposition of sanctions to prevent undue delays in the disposition of pending cases is of ancient origin, having its roots in judgments . entered at common law . and dismissals.... That power may be expressly recognized by rule or statute, but it exists independently of either and arises because of the control that must necessarily be vested in courts in order for them to be able to manage their own affairs so as to achieve an orderly and expeditious disposition of cases.... Simply stated, [t]he inherent powers of . courts are those which are necessary to the exercise of all others." (Internal quotation marks omitted.) Feuerman v. Feuerman, 39 Conn.App. 775, 777, 667 A.2d 802 (1995). Regardless of the authority contained in the Practice Book provisions, the court had the inherent authority to sanction a party who had failed to pursue a motion with reasonable diligence. In light of the foregoing authority, we conclude that the defendant's claim that the court lacked the authority to dismiss her motion for modification is without merit. II As we perceive it, the defendant's second claim is that the court erred in concluding that she (1) failed to show good cause for her failure to reclaim her motion within three months of the date on which it was filed and (2) failed to diligently prosecute it. This discussion requires a two part analysis, because the standard for reviewing a trial court's decision on whether a motion is stale under Practice Book § 25-34(e) is the clearly erroneous standard; see Larson v. Larson, 89 Conn.App. 57, 69, 872 A.2d 912, cert. denied, 274 Conn. 915, 879 A.2d 892 (2005) ; and the standard for reviewing whether a trial court's dismissal of an action under Practice Book § 14-3 is whether the trial court abused its discretion. See Krevis v. Bridgeport, 262 Conn. 813, 818-19, 817 A.2d 628 (2003). A In Larson v. Larson, supra, 89 Conn.App. at 69, 872 A.2d 912, this court indicated, as follows: "Whether a party has shown good cause in not pursuing a motion within the three month limitation is a question of fact for the trial court. [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.... When employing this standard of review, this court cannot retry the facts...." (Citation omitted; internal quotation marks omitted.) "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.) ATC Partnership v. Windham, 268 Conn. 463, 479, 845 A.2d 389 (2004). The defendant argues that, in considering whether she acted with good cause, the court should have offset the duration of the defendant's delay by the interval when an appellate stay incident to the plaintiff's appeal was in effect, and those intervals when each of his two motions to dismiss were pending. As to the discovery delays, the defendant argues that she should not be faulted for hesitating to proceed to a hearing on her motion without access to full and complete discovery. Finally, she argues that, at the February 24, 2014 hearing, she advised the court she was ready to proceed to a hearing on her motion at anytime. In response to the arguments raised by the defendant, the plaintiff argues that the court noted lengthy periods of inaction by the defendant and set forth a chronology of that inactivity. The court also noted that the defendant had failed to pursue her 2011 motion for contempt regarding discovery, and had noticed numerous depositions, none of which occurred. More importantly, there was no record of any activity in the case for the period from November, 2012, until November, 2013. We agree with the plaintiff that the court's finding as to lack of good cause was not clearly erroneous in light of the defendant's inactivity for extended time periods and her repeated lack of follow-through in a series of noticed depositions. The plaintiff's appeal was withdrawn in 2010, only a few months after the defendant's motion for modification was filed, so how it would have affected her ability to proceed efficiently for the next three and one-half years is not evident. The court also rejected the defendant's claim that the plaintiff had engaged in bad faith delay tactics by raising appropriate and timely objections to her discovery requests, and our review of the grounds set forth in the plaintiff's motions to quash and for protective orders support, rather than undermine, the court's findings that the plaintiff's objections were not merely frivolous. In addition, the defendant admitted that the plaintiff had provided documentation in response to her discovery requests, but focused on the need for signed tax returns or release authorizations to obtain the plaintiff's tax returns herself. We do not consider the inability to obtain tax returns a valid excuse for such an inordinate delay when the defendant's primary stated ground for a modification was the plaintiff's increased earnings. Tax returns are a prime source for information as to earnings, yet once the court had overruled the plaintiff's objections to her requests for production, the defendant failed to pursue a motion to compel the production of the tax returns or releases, failed to follow through with depositions, noticed in 2010 and 2012, of either the plaintiff or his accountant, and failed to seek a scheduling order. Most significantly, the plaintiff filed his first motion to dismiss in 2012, which Judge Schofield denied. This afforded the defendant a reprieve, giving her additional time to pursue the motion to modify the alimony award. Judge Schofield ordered her to obtain a hearing date and cease using lack of discovery as an excuse. At that hearing, or immediately thereafter, she did not press for any findings that the plaintiff had been noncompliant with discovery or any orders directed to the plaintiff to produce any specified documents prior to the hearing, which the court indicated was to be scheduled expeditiously. It is unrefuted in the record that the defendant did not follow the court's direction to obtain a hearing date. Not only was no hearing ever scheduled, but the defendant persisted in ineffectually pursuing more discovery without much involvement from the court until the plaintiff's second motion to dismiss was heard in February, 2014. Although the defendant claims she told the court during that hearing that she was ready to proceed, that was not the case. She in fact complained, in her written objection and at the hearing, of an inability to proceed due to the lack of sufficient disclosure of the plaintiff's tax returns. She also indicated that she wanted to take the plaintiff's deposition and get responses to subpoenas that were outstanding. We conclude that the factual findings of the court support its conclusion that the defendant failed to show good cause to avoid a dismissal under Practice Book § 25-34(e). B As we have determined previously in this opinion, the court's dismissal of the defendant's motion was based, in part, on its determination that she had failed to prosecute it with reasonable diligence under Practice Book § 14-3. "We review case management decisions for abuse of discretion, giving [trial] courts wide latitude.... A party adversely affected by a [trial] court's case management decision thus bears a formidable burden in seeking reversal.... A trial court has the authority to manage cases before it as is necessary.... Deference is afforded to the trial court in making case management decisions because it is in a much better position to determine the effect that a particular procedure will have on both parties.... The case management authority is an inherent power necessarily vested in trial courts to manage their own affairs in order to achieve the expeditious disposition of cases.... The ability of trial judges to manage cases is essential to judicial economy and justice.... We will not disturb a trial court's decision regarding case management unless after carefully examining the factual circumstances of the case, we determine that there was an abuse of discretion." (Citations omitted; internal quotation marks omitted.) Krevis v. Bridgeport, supra, 262 Conn. at 818-19, 817 A.2d 628. Although courts must be mindful of the policy favoring a trial on the merits of any dispute whenever possible, a court may still determine, in its sound discretion, that a party's diligence does not fall "within the reasonable section of the diligence spectrum.... A trial court properly exercises its discretion to dismiss for failure to prosecute if the case has been on the docket for an unduly protracted period or the court is satisfied from the record or otherwise that there is no real intent to prosecute...." (Internal quotation marks omitted.) Brochu v. Aesys Technologies, 159 Conn.App. 584, 594, 123 A.3d 1236 (2015). "[T]he unquestioned rule is that great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness." (Internal quotation marks omitted.) Bobbin v. Sail the Sounds, LLC, 153 Conn.App. 716, 727, 107 A.3d 414 (2014), cert. denied, 315 Conn. 918, 107 A.3d 961 (2015). In part II A of this opinion, we set forth facts that support the court's finding of a lack of good cause. We conclude that those facts also support the court's finding that the defendant failed to prosecute her motion with reasonable diligence. The defendant's motion had been filed almost four years prior to the hearing on the motion to dismiss. The court reasonably construed four years to be an unduly protracted period for the pendency of a motion to modify alimony. The defendant's inaction for extended periods and her failure to take unequivocal, productive steps to obtain the discovery necessary and germane to the substantial change she alleged in her motion-an increase in the plaintiff's income-established that there was insufficient good cause for her delay in prosecuting her motion. A motion to increase an alimony order ostensibly should have as a primary purpose a serious need for immediate, increased financial support. Even when the defendant was reminded, at the time Judge Schofield denied the plaintiff's first motion of dismiss, of her urgent duty to ensure the forward progress of her motion to modify, the defendant did not accelerate or streamline her scattered and imprecise discovery efforts. She ignored the court's direction to obtain a hearing date and never sought a scheduling order, either of which would have provided her with protection from dismissal under Practice Book § 25-34(e). We find no abuse of discretion in the court's decision to dismiss the defendant's motion for modification. The judgment is affirmed. In this opinion the other judges concurred. Practice Book § 25-34(e) states in relevant part: "Unless for good cause shown, no motion may be reclaimed after a period of three months from the date of filing. This subsection shall not apply to those motions where counsel appeared on the date set by the judicial authority and entered into a scheduling order for discovery, depositions and a date certain for hearing." The plaintiff's motions to quash that were filed in 2010 alleged that the defendant was seeking to subpoena the same documents to which the plaintiff had objected to producing in response to her requests for production, and that his objection had yet to be resolved. The hearing dates, May 30 and May 31, 2012, were eventually cancelled by the court. The record reflects that Judge Schofield ordered the parties "to proceed immediately downstairs and get a date" to have the motion heard on the merits. She advised the parties: "I do not want to hear any excuses from either side that you are not prepared to go forward on this date. I do not want to hear that there's outstanding discovery at all." At that hearing, the defendant maintained that the plaintiff had not fully complied with discovery, but she did not request any specific compliance orders from the court on that date. Although she requested a scheduling order for discovery at that time, one was never issued, and given the tenor of the court's order, that it did not want "to hear that there's outstanding discovery at all," it appears the court perhaps would not have countenanced further delay had a hearing actually been scheduled. Notwithstanding the court's specific directive, a new hearing date was not obtained, a fact which the defendant admitted in her motion to reargue before Judge Heller. In eight motions to quash filed between August 9, 2012, and December 26, 2013, the plaintiff claimed that the defendant either was failing to attach a Schedule A denoting what documents were being requested pursuant to her deposition subpoenas, or she was trying to take out-of-state depositions without first seeking the appointment of a commission from the court. In fact, the defendant admitted to serving subpoenas for documents on out-of-state entities prior to the proposed date of the depositions, obtaining the documents, which the plaintiff claimed were never shared with him, and then cancelling the actual depositions, a procedure the plaintiff claimed was in violation of General Statutes § 52-148a and 52-148c, and Practice Book § 13-28. In one instance, the plaintiff claimed that the defendant was seeking to depose an entity with which he had never been associated. Practice Book § 14-3, made applicable to family matters by Practice Book § 25-48, states in pertinent part: "(a) If a party shall fail to prosecute an action with reasonable diligence, the judicial authority may, after hearing, on motion by any party to the action . or on its own motion, render a judgment dismissing the action with costs. At least two weeks' notice shall be required except in cases appearing on an assignment list for final adjudication. Judgment files shall not be drawn except where an appeal is taken or where any party so requests." At the hearing on the motion to dismiss, the plaintiff argued that because the dissolution judgment limited an alimony increase to an increase in a party's wages, it was difficult to discern why the defendant's discovery efforts were related to information concerning the plaintiff's assets, as well as information concerning employment income and tax returns that predated the judgment of dissolution. The defendant countered that some of her discovery was in regard to a motion for compliance with property distribution orders contained in the dissolution judgment. The court correctly noted that there was no motion pending before it concerning compliance pertaining to property distribution. On appeal, the defendant has not raised any claim with respect to this issue and has not identified the motion for compliance to which she had referred during the hearing before Judge Heller. As previously noted, the defendant may have sought to avoid the rule's effect at one point by unilaterally requesting that the caseflow coordinator schedule her motion for a hearing rather than filing a notice of reclaim. In accordance with Practice Book § 25-34(e), trial courts have imposed a variety of sanctions in response to a party's failure to reclaim a motion within three months after it has been filed. The plaintiff draws our attention to a number of decisions in which trial courts have dismissed motions that were determined to be stale. See, e.g., Montgomery v. Shipman, Superior Court, judicial district of Tolland, Docket No. FA-98-0067662-S, 2008 WL 4308205 (September 5, 2008) (appeal from family support magistrate dismissed when not reclaimed for over one year after filing without good cause shown for delay in pursuing appeal); Miller v. Miller, Superior Court, judicial district of Hartford, Docket No. FA-87-0327052, 2002 WL 845749 (April 2, 2002) (motion to modify alimony dismissed after court concludes that Practice Book § 25-34 [c] does not permit party to reclaim motion after period of three months and no good cause shown); Hill v. Hill, Superior Court, judicial district of Fairfield, Docket No. FA-91-0374254-S, 2001 WL 179781 (January 8, 2001), (vast majority of motions filed by plaintiff dismissed as stale and in violation of § 25-34 [e] when plaintiff's noncompliance with case management order established lack of good cause shown), aff'd, 75 Conn.App. 902, 818 A.2d 901, cert. denied, 264 Conn. 911, 826 A.2d 1155 (2003) ; Lang v. Rufleth, Superior Court, judicial district of Hartford, Docket No. FA-95-0710971, 2000 WL 1168932 (July 26, 2000) (unreclaimed motions filed two years earlier, requesting division of marital property pursuant to agreement to permit court to reserve jurisdiction six months after dissolution for such division, dismissed absent showing of good cause). The plaintiff has drawn our attention to the decisions of other trial courts that have denied the motions that were determined to be stale. See, e.g., Nuzzi v. Nuzzi, Superior Court, judicial district of Stamford-Norwalk, Docket No. FA-06-4008282, 2014 WL 279597 (January 2, 2014), (nearly five year old motion to modify alimony denied under Practice Book § 25-34 [e] when no good cause shown for delay), rev'd on other grounds, 164 Conn.App. 751, 138 A.3d 979 (2016) ; Vallas v. Vallas, Superior Court, judicial district of Stamford-Norwalk, Docket No. FA-90-0112609-S, 1998 WL 285861 (May 20, 1998) (family support magistrate's denial of motion not reclaimed for period of four years without good cause affirmed). As the plaintiff points out, several trial courts have declined to act on stale pendente lite motions, thereby denying retroactivity to support orders entered at the time of dissolution of the marriage. See, e.g., O'Donnell v. Johnson, Superior Court, judicial district of New London, Docket No. FA-12-4119469, 2015 WL 2036030 (April 6, 2015) (claim for retroactive support order at time of final custody determination denied because court determined that, under § 25-34 [e], motion for pendente lite child support that was not reclaimed after three months under rule cannot be treated as still pending by operation of law); Sudol v. Sudol, Superior Court, judicial district of Stamford-Norwalk, Docket No. FA-12-4023333-S, 2014 WL 5138001 (September 8, 2014) (in absence of evidence that child's needs unmet or that plaintiff had suffered financial detriment, court, pursuant to § 25-34 [e], declined to enter retroactive child support order pursuant to plaintiff's pendente lite motion filed two years before date of dissolution but never reclaimed). Also, the plaintiff draws our attention to the decision of one trial court that, after finding good cause shown, overruled an objection to the docketing of a pendent lite motion reclaimed more than three months after its date of filing. See Mendoza v. Scott, Superior Court, judicial district of New London, Docket No. FA-06-4006691-S, 2007 WL 2363111 (July 11, 2007). We suggest that a dismissal is a more appropriate sanction than a denial or the sustaining of an objection to redocketing the motion because a dismissal reflects a determination, made in accordance with Practice Book § 25-34(e), that the motion procedurally cannot proceed further. In addition, a dismissal is a more common sanction when a party has failed to prosecute an action diligently. A denial could be construed as a decision on the merits of the motion, and we recognize that when a motion is dismissed as stale, the movant may file and serve the opposing party with a new motion, possibly alleging grounds similar to the grounds previously alleged in the dismissed motion. The movant, however, in the case of a motion seeking to modify alimony, will have lost the benefit of requesting retroactivity of any modified order beyond the filing date of the new motion. See General Statutes § 46b-86 (a), which states in pertinent part: "No order for periodic payment of permanent alimony . may be subject to retroactive modification, except that the court may order modification with respect to any period during which there is a pending motion for modification of an alimony . order from the date of service of notice of such pending motion upon the opposing party pursuant to section 52-50...." See footnote 6 of this opinion. We observe that, before this court, the plaintiff has raised the court's reliance on Practice Book § 14-3 as an alternate ground upon which this court may affirm the judgment of the trial court pursuant to Practice Book § 63-4. Although the defendant has phrased the present claim in very general terms, by asserting that "[t]he trial court improperly dismissed [her] motion," our review of the substance of her analysis of the claim reveals the issues related to the claim that we will address. Only after the plaintiff filed his second motion to dismiss did the defendant renew her attempts to depose the defendant's accountant and move to compel the production of the plaintiff's tax returns or release authorizations for them. Due to the pendency of his motion to dismiss, the plaintiff objected.

12486202

Clarence MARSALA et al. v. YALE-NEW HAVEN HOSPITAL, INC. Clarence Marsala, Administrator (Estate of Helen Marsala) v. Yale-New Haven Hospital, Inc.

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

2016-06-28

No. 37822; No. 37821.

316

334

142 A.3d 316

142

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

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

Fastcase

Clarence MARSALA et al. v. YALE-NEW HAVEN HOSPITAL, INC.

Clarence MARSALA et al. v. YALE-NEW HAVEN HOSPITAL, INC. Clarence Marsala, Administrator (Estate of Helen Marsala) v. Yale-New Haven Hospital, Inc. No. 37822 No. 37821. Appellate Court of Connecticut. Argued March 10, 2016. Decided June 28, 2016. Jeremy C. Virgil, Bridgeport, for the appellants (plaintiff Michael Marsala et al. in AC 37822, plaintiff in AC 37821). Tadhg A.J. Dooley, with whom was Jeffrey R. Babbin, New Haven, for the appellee in both appeals (defendant). BEACH, KELLER and BISHOP, Js.

8450

53973

BISHOP, J. These consolidated appeals arise from the death of Helen Marsala while under the care of the defendant, Yale-New Haven Hospital, Inc. (Hospital). In the case that underlies AC 37822, there were several plaintiffs. Helen's husband, Clarence Marsala, in his personal capacity and as administrator of Helen's estate, and Helen's five children, Michael Marsala, Gary Marsala, Tracey Marsala, Kevin Marsala, and Randy Marsala, filed a twenty-seven count complaint, including, inter alia, claims of negligent infliction of emotional distress, intentional infliction of emotional distress, wrongful death, loss of consortium, and medical malpractice. On October 30, 2013, the court, Lee, J., granted the Hospital's motion to strike the negligent infliction of emotional distress counts and, on March 19, 2015, the court, Tyma, J., rendered summary judgment in favor of the Hospital on the intentional infliction of emotional distress counts. The claims for wrongful death, loss of consortium, and medical malpractice are pursued solely by Clarence, in his personal capacity and as administrator, and as they remain pending before the trial court, they are not subject to this appeal. Consequently, because all the claims Clarence brought were not disposed of by the trial court's actions, he is not a party to the appeal designated as AC 37822. In sum, in AC 37822, the plaintiffs, Helen's five children, appeal from the decisions striking their negligent infliction of emotional distress claims and rendering summary judgment on their intentional infliction of emotional distress claims. In the case that underlies AC 37821, Clarence, as administrator of Helen's estate, filed a separate action alleging medical malpractice by the Hospital. On March 19, 2015, the court, Tyma, J., rendered summary judgment in favor of the Hospital in that action on the ground that the medical malpractice claim comprising that action was duplicative of the wrongful death, loss of consortium, and medical malpractice counts that Clarence, in his personal capacity and as administrator, was still actively pursuing in the case underlying AC 37822. Judge Tyma reasoned that Clarence's claims in both cases were identical and arose from the same factual allegations, which rendered his claim in the case underlying AC 37821 legally insufficient under Floyd v. Fruit Industries, Inc., 144 Conn. 659, 669, 136 A.2d 918 (1957) (Limiting recovery to one action "where damages for death itself are claimed in an action based on our wrongful death statute, recovery of any ante-mortem damages flowing from the same tort must be had, if at all, in one and the same action. In other words, there cannot be a recovery of damages for death itself under the wrongful death statute in one action and a recovery of ante-mortem damages, flowing from the same tort, in another action....") AC 37821 is Clarence's appeal from that judgment. Clarence has not raised or briefed any challenge to the summary judgment rendered in the separate action. Accordingly, we deem the appeal in AC 37821 to be abandoned and we address, only, the issues raised in AC 37822; see Commission on Human Rights & Opportunities ex rel. Arnold v. Forvil, 302 Conn. 263, 279-80, 25 A.3d 632 (2011) (holding claims are inadequately briefed when parties do not develop claims with analysis); Connecticut Light & Power, Co. v. Gilmore, 289 Conn. 88, 124, 956 A.2d 1145 (2008) ("[w]e repeatedly have stated that [w]e are not required to review issues that have been improperly presented to this court through an inadequate brief" [internal quotation marks omitted] ); and do not address the merits of AC 37821 here. For the reasons stated herein, we affirm the judgments of the trial court. I The following allegations from the pleadings, evidence submitted by the parties, and procedural history are relevant to the resolution of this appeal. On April 7, 2010, Helen, then seventy-six years old, was admitted to Griffin Hospital (Griffin) to undergo wrist surgery. After surgery, Helen's wrist became infected and her condition worsened to the point that she was put on life support. She subsequently lost consciousness and became comatose. Helen did not have a living will with instructions concerning her care should she fall into a coma with no reasonable prospects for recovery. However, she had expressed to Clarence her desire to remain on life support should she ever lose the ability to speak for herself while hospitalized. At Griffin, the medical staff came to the view that Helen's condition was irreversible and they recommended to Clarence that Helen be taken off life support. Based on Helen's previous expressions, however, Clarence refused to give consent, and on June 19, 2010, he transferred Helen to the Hospital. Helen arrived at the Hospital in critical condition. She required a respirator to breathe, received her nutrition through a feeding tube, and, aside from one moment when she opened her eyes, remained unconscious and unresponsive to painful stimuli. Her intake report described Helen as: "A 76 year old woman transferred from Griffin Hospital for multiple medical problems for further management. She has an extensive past medical history, which included [diabetes mellitus ], moderate aortic stenosis, hypertension, hyperlipidemia.... She has had a long hospital course, which has included prolonged respiratory failure and failure to wean, shock requiring vasopressors, Morganella bacteremia requiring treatment with Impipenem, volume overload, and GI bleeding thought to be due to ischemic colitis." Helen's intake physician summarized her status, stating that her "[p]rognosis is uncertain at best given her multiple medical problems and advanced age." On the day Helen was admitted to the Hospital, members of its staff discussed with Clarence and Michael the permanent removal of Helen's ventilator. Clarence and Michael refused. Instead, they instructed the Hospital never to "pull the plug." Nonetheless, the conversation continued. Hospital staff repeatedly advised permanently removing Helen's ventilator, and Clarence and other members of the family continually refused to give their consent. Despite objecting to permanently removing Helen's ventilator, Clarence believed that Helen would not want to remain alive at all costs and, accordingly, upon admission to the Hospital, he agreed to keep her status as "Do Not Resuscitate." Helen's condition worsened during her time at the Hospital. Images of her brain revealed new infarcts, and monitoring of her brain showed slowing. Despite Helen's bleak outlook, the Hospital attempted to help Helen regain consciousness by conducting weaning trials in an attempt to stimulate her respiratory system. The weaning trials involved temporarily removing Helen's ventilator with the hope that her body would then start breathing on its own. Clarence and the plaintiffs did not object to the weaning trials as they hoped that these efforts would lead to some improvement in Helen's mental status. However, Clarence continued to oppose the Hospital's recommendation that Helen's ventilator be permanently removed. Instead, Clarence insisted that the Hospital reintubate Helen if she did not start breathing on her own and not change her status to "Due Not Reintubate." At this time, although Clarence continued to object to changing Helen's status to "Do Not Reintubate," the Hospital kept in place her "Do Not Resuscitate" status. Due to the disagreement between Clarence and the Hospital physicians over whether to reintubate Helen if her condition did not improve, the Hospital referred Helen's case to its Bioethics Committee (committee). Generally, the committee, a Hospital panel composed of the physicians and social workers familiar with the particular patient, members of the clergy, relevant staff personnel, and health care specialists from the relevant medical fields, is authorized to consider the ethical issues relating to the treatment of patients and to recommend a course of action. In Helen's case, the committee met on July 23, 2010. Although Clarence was invited to participate, he did not attend. The committee noted that Clarence wished to keep Helen alive, despite her poor prognosis. The committee also considered the medical opinion of Helen's physicians who were "concerned that [they were] providing futile care considering [Helen] has had multi-organ failure for several weeks now-respiratory failure, poor mental status, kidney failure, and stage IV skin break down over the back, as well as stage II over the bridge of nose from [her breathing mask, known as a Bilevel Positive Airway Pressure (BiPAP) mask]." On July 23, 2010, after considering Helen's prognosis, the views of her medical team, and the views of her family, the committee recommended "that there be no further escalation of care (meaning no intubation or pressors) considering this is not in the best interest of the patient and we are not providing care that would achieve the patient's goal of going home." Finally, a committee member called Clarence and left a voice mail requesting that he discuss the committee's recommendation with her. Clarence did not respond to the committee member's request. In fact, during the final days of Helen's life, Clarence became increasingly difficult to contact. He did not answer his phone and visited the Hospital less frequently. Following the committee's recommendation, the Hospital sought a second opinion from a pulmonologist, a physician who specializes in the respiratory system, and who had not been involved in Helen's care. The pulmonologist "concur[red] with the decision of [Helen's] primary [medical] team and of the committee and [stated that] further attempts at therapeutic intervention do not offer a chance of a better outcome." Additionally, the pulmonologist stated that "[r]eintubation, ongoing use of BiPAP based on both asynchrony and skin breakdown is not warranted." He further "agree[d] to moving [Helen] to a comfort care plan." Finally, the pulmonologist noted that he had called Clarence and left a message explaining his medical opinion and agreement with the committee's recommendation. In accordance with the committee's recommendation and buttressed by the second opinion by a pulmonologist, the Hospital changed Helen's status to provide comfort care only and a "Do Not Reintubate" order was entered for her in addition to the "Do Not Resuscitate" order previously issued. Neither Clarence nor any of the plaintiffs was present at the committee meeting; none of them witnessed the Hospital's decision-making process and none was present when the Hospital made the ultimate decision to transition Helen to comfort care and change her status to "Do Not Reintubate." On July 24, 2010, the Hospital permanently removed Helen's ventilator. She died that night. Subsequently, Clarence, both in his personal capacity and as administrator of Helen's estate, and the plaintiffs brought the action underlying AC 37822 against the Hospital. The initial complaint in that action asserted a variety of claims (twenty-seven counts), all rooted in the core allegation that the Hospital "ignored the wishes of . Helen, as expressed from her next of kin, Clarence . prior to removing life support." Pertinently, the complaint alleged: negligent infliction of emotional distress alleged by each individual plaintiff (counts one through six), intentional infliction of emotional distress claims alleged by each individual plaintiff (counts seven through twelve), wrongful death and loss of consortium claims alleged by Clarence in his personal capacity and as administrator (counts twenty-one and twenty-two, respectively), and medical malpractice and loss of consortium claims alleged by Clarence in his personal capacity and as administrator (counts twenty-six and twenty-seven, respectively). Additionally, Clarence, as the administrator of Helen's estate, separately filed the action underlying AC 37821 alleging medical malpractice by the Hospital, premised on the same factual allegations underlying AC 37822. On March 22, 2013, the Hospital filed a motion to strike most of the counts in the action underlying AC 37822, including the plaintiffs' negligent infliction of emotional distress counts. On October 30, 2013, Judge Lee granted the Hospital's motion to strike the negligent infliction of emotional distress counts. Specifically, Judge Lee determined that the plaintiffs' negligent infliction of emotional distress counts were properly characterized as bystander emotional distress claims, which required the plaintiffs to allege facts tending to show "the[ir] contemporaneous sensory perception of the event or conduct that causes the injury, or by [arrival] on the scene soon thereafter and before substantial change has occurred in the victim's condition or location," as required by our Supreme Court's decision in Clohessy v. Bachelor, 237 Conn. 31, 56, 675 A.2d 852 (1996). Judge Lee concluded that the plaintiffs had failed to "allege that they witnessed the actual removal of the respirator or the resulting demise of Helen or arrived shortly thereafter" and, accordingly, had not met the pleading standard required by Clohessy. Additionally, Judge Lee noted that so far as the plaintiffs' claims sought damages for medical malpractice against the Hospital for its treatment of Helen, such claims were barred by Maloney v. Conroy, 208 Conn. 392, 392, 545 A.2d 1059 (1988) (holding that bystanders to medical malpractice may not recover for emotional distress). Judgment was entered on the stricken counts. On August 28, 2014, the Hospital filed a motion for partial summary judgment in the case underlying AC 37822 as to the counts alleging intentional infliction of emotional distress. On March 19, 2015, Judge Tyma granted that motion on the grounds that the claims sounded in bystander intentional infliction of emotional distress claims and such claims were barred by Maloney v. Conroy, supra, 208 Conn. at 392, 545 A.2d 1059. These consolidated appeals followed. See footnotes 1 and 4 of this opinion. On appeal in AC 37822, the plaintiffs challenge Judge Lee's decision granting of the Hospital's motion to strike their negligent infliction of emotional distress claims and Judge Tyma's rendering of summary judgment in favor of the Hospital on their intentional infliction of emotional distress claims. Specifically, with respect to Judge Lee's decision to strike their negligent infliction of emotional distress counts, the plaintiffs challenge his characterization of their allegations as claims of bystander, not direct, emotional distress. The distinction is critical as bystander claims require the plaintiffs to allege that they contemporaneously perceived the Hospital's negligent act or saw its result shortly thereafter. Clohessy v. Bachelor, supra, 237 Conn. at 56, 675 A.2d 852. Judge Lee granted the Hospital's motion to strike those counts on the ground that the plaintiffs had failed to allege facts which, if proven, could establish Clohessy 's contemporaneous perception requirement. Similarly, the plaintiffs argue that Judge Tyma incorrectly characterized their intentional infliction of emotional distress counts as premised on bystander liability and incorrectly rendered summary judgment in favor of the Hospital on those counts on the ground that bystander claims for emotional distress premised on medical malpractice are precluded under Maloney v. Conroy, supra, 208 Conn. at 392, 545 A.2d 1059. The plaintiffs argue that Maloney was superseded after the court granted the Hospital's motion for summary judgment by Squeo v. Norwalk Hospital Assn., 316 Conn. 558, 113 A.3d 932 (2015). We address each claim in turn. II We first consider the plaintiffs' claim that Judge Lee and Judge Tyma, in their respective decisions, mischaracterized their counts alleging negligent infliction of emotional distress and intentional infliction of emotional distress as raising claims of bystander emotional distress. This claim underlies the plaintiffs' challenges to the courts' actions, and is pivotal to our analysis because bystander emotional distress claims require the pleading and establishing of elements not required for bringing direct claims of emotional distress. See Clohessy v. Bachelor, supra, 237 Conn. at 56, 675 A.2d 852. Both courts first concluded that the plaintiffs had raised claims of bystander emotional distress and, then, applying the law controlling such claims to the plaintiffs' claims, granted the Hospital's motion to strike the plaintiffs negligent infliction of emotional distress counts and motion for summary judgment on the plaintiffs' intentional infliction of emotional distress counts. On appeal, the plaintiffs argue that both courts misconstrued their assertions as bystander claims; rather, they claim, they raised direct emotional distress claims, and, on that basis, the judgment underlying AC 37822 should be reversed. A We begin our analysis by first considering whether Judge Lee properly ruled that the plaintiffs' complaint alleged bystander, as opposed to direct, negligent infliction of emotional distress claims. "The interpretation of pleadings is always a question of law for the court.... Our review of the trial court's interpretation of the pleadings therefore is plenary." (Internal quotation marks omitted.) Boone v. William W. Backus Hospital, 272 Conn. 551, 559, 864 A.2d 1 (2005). Connecticut law recognizes two types of negligent infliction of emotional distress actions. In one category, the conduct that causes the emotional distress is directed toward the plaintiff (direct emotional distress claims). See Carrol v. Allstate Ins. Co., 262 Conn. 433, 444, 815 A.2d 119 (2003). In the second, the conduct that causes the emotional distress is directed toward another (bystander emotional distress claims). See Clohessy v. Bachelor, supra, 237 Conn. at 56, 675 A.2d 852. Despite their differences, and like all negligence claims, both subsets of negligent infliction of emotional distress claims require proof of the breach of a legally recognized duty, causing injury. Lawrence v. O & G Industries, Inc., 319 Conn. 641, 649, 126 A.3d 569 (2015) ("[a] cause of action in negligence is comprised of four elements: duty; breach of that duty; causation; and actual injury" [internal quotation marks omitted] ); see Mirjavadi v. Vakilzadeh, 310 Conn. 176, 191, 74 A.3d 1278 (2013) ("[i]f a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant" [internal quotation marks omitted] ). The difference, then, between whether a set of pleadings sounds in either claim, turns on whether the duty breached was owed directly to the plaintiff (direct) or to a third party (bystander). See Clohessy v. Bachelor, supra, 237 Conn. at 35-36, 675 A.2d 852. Our agreement with the trial court that the plaintiffs' pleadings sounded in bystander liability is based on the determination that the duty the plaintiffs alleged was breached was not a duty owed to them, but to Helen. In their complaint that underlies AC 37822, the plaintiffs alleged the following regarding duty: "30. On or about July 24, 2010, over the objection of Clarence Marsala and Gary Marsala, and without giving the plaintiff, Clarence Marsala, time to transport the decedent, the agents, apparent agents, employees, agent, and/or staff members of the defendant, Yale-New Haven Hospital, acting within their scope of their employment with the defendant and in furtherance of the defendant's business, permanently removed the ventilator from the decedent, Helen Marsala, causing her to suffocate and die. "31. The defendant, Yale-New Haven Hospital, had a duty to ascertain the wishes of the decedent, Helen Marsala, from her next of kin, Clarence Marsala, prior to removing life support. "32. The defendant, Yale-New Haven Hospital, ignored the wishes of the decedent, Helen Marsala, as expressed from her next of kin, Clarence Marsala, prior to removing life support. "33. As a result of the defendant Yale-New Haven Hospital's conduct, through its agents, employees and/or staff members acting within the scope of their employment with the defendant, the plaintiff[s] . suffered the following serious, painful and permanent injuries: (a) severe emotional distress; (b) loss of opportunity to say goodbye; (c) depression; (d) loss of sleep; (e) stress; (f) anxiety; and (g) pain and suffering." (Emphasis added.) On the basis of these allegations, the plaintiffs argue that the Hospital owed them a direct duty to follow their wishes concerning the reintubation of Helen because the Hospital could have foreseen that acting contrary to the plaintiffs' wishes would cause the plaintiffs emotional distress. We disagree. A fair reading of these allegations leads us to the conclusion that the allegations of care, or lack of care by the Hospital, all concern its treatment of Helen. As noted, the plaintiffs alleged that the Hospital "removed the ventilator from the decedent, Helen Marsala, causing her to suffocate and die," "had a duty to ascertain the wishes of the decedent, Helen Marsala," and "ignored the wishes of the decedent, Helen Marsala, as expressed from her next of kin, Clarence Marsala, prior to removing life support." Only the alleged consequences are claimed to have impacted the plaintiffs. Our analysis of duty does not, however, end with the pleadings. "Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual.... Although it has been said that no universal test for [duty] ever has been formulated . our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant. The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised.... By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable.... [T]he test for the existence of a legal duty entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case." (Citation omitted; internal quotation marks omitted.) Sic v. Nunan, 307 Conn. 399, 406-408, 54 A.3d 553 (2012). "The first part of the test invokes the question of foreseeability, and the second part invokes the question of policy." (Internal quotation marks omitted.) Gazo v. Stamford , 255 Conn. 245, 250, 765 A.2d 505 (2001). Therefore, "[f]oreseeability alone is not enough to establish a legal duty. Many harms are quite literally foreseeable, yet for pragmatic reasons, no recovery is allowed.... A further inquiry must be made, for we recognize that duty is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection.... While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world." (Internal quotation marks omitted.) Di Teresi v. Stamford Health System, Inc., 142 Conn.App. 72, 80, 63 A.3d 1011 (2013). Although the plaintiffs argue that the Hospital should have foreseen that its decision to not reintubate Helen would cause them emotional distress, foreseeability alone cannot establish a legally recognized duty. In this case, preexisting public policy determinations preclude us from recognizing that the Hospital owed such a legal duty to the plaintiffs. First, our legislature, by its silence, has tacitly rejected imposition of the legal duty the plaintiffs assert. See Sic v. Nunan, supra, 307 Conn. at 410, 54 A.3d 553 (noting that legislature has primary responsibility for formulating public policy). General Statutes § 19a-571 (a) places a duty on any licensed medical facility, such as the Hospital, to consider only the patient's wishes when considering to remove a life support system of a terminal and permanently unconscious patient. And, when a patient's wishes are known to the patient's attending physician, the physician is required to "consider" those wishes; General Statutes § 19a-571 (a)(3) ; in the context of exercising the provider's "best medical judgment" about how to proceed regarding the patient's care. General Statutes § 19a-571 (a)(1). When a patient's wishes are unknown to the attending physician, § 19a-571 (a)(3) directs the physician to determine the patient's wishes by consulting other sources including the patient's family. In such a situation, however, any consultation with a patient's family members is undertaken to "determine the wishes of the patient." General Statutes § 19a-571 (a)(3). Thus, § 19a-571 (a) unambiguously removes any legal duty for the Hospital to follow the wishes of a patient's relatives. Furthermore, the duty implications of § 19a-571 are illuminated by an examination of a prior version of that statute. See Public Acts 1991, No. 91-283, § 2 (P.A. 91-283). Prior to its amendment in 1991, the statute required the attending physician to obtain "the informed consent of the next of kin, if known, or legal guardian, if any, of the patient prior to removal" of the life support system. General Statutes (Rev. to 1989) § 19a-571 (3) ; see also McConnell v. Beverly Enterprises-Connecticut, Inc., 209 Conn. 692, 699 n. 5, 553 A.2d 596 (1989). Apart from the directive to obtain the informed consent of the patient's next of kin, the prior and current forms of § 19a-571 are substantially similar. We find it instructive that, in § 2 of P.A. 91-283, the legislature eliminated the requirement that a health care provider follow the wishes of anyone except the patient when determining appropriate end-of-life care. In doing so, the legislature highlighted the public policy that it is the patient to whom the health care provider owes a duty of reasonable care. The public policy implications of § 19a-571, viewed in context of its 1991 amendment, support our conclusion that the Hospital, as a patient care facility, did not owe a legally recognized duty to the plaintiffs regarding the treatment provided to Helen. Our conclusions based on public policy are rooted in decisional law as well as a review of pertinent legislation. In addition to § 19a-571, relevant decisional law generally points to four factors "in determining the extent of a legal duty as a matter of public policy: (1) the normal expectations of the participants in the activity under review; (2) the public policy of encouraging participation in the activity, while weighing the safety of the participants; (3) the avoidance of increased litigation; and (4) the decisions of other jurisdictions." Murillo v. Seymour Ambulance Assn., Inc., 264 Conn. 474, 480, 823 A.2d 1202 (2003). In the present case, however, further discussion of those factors is not required because our Supreme Court has already weighed them in the context of determining whether a health care provider owes a duty of care to someone other than its patient. Id., at 478, 823 A.2d 1202. In Murillo v. Seymour Ambulance Assn., Inc., the court "conclude[d] that, as a matter of public policy, [a health care provider] owed no duty to the plaintiff-a bystander who was not a patient of the [health care provider]-to prevent foreseeable injury to her as a result of her observing the medical procedures performed on her sister"; id.; and noted that a health care provider would be expected to focus its efforts on the patient in need of medical care and not on that patient's relative. Id., at 480, 823 A.2d 1202 ; see also Jarmie v. Troncale, 306 Conn. 578, 598-624, 50 A.3d 802 (2012) ; Di Teresi v. Stamford Health System, Inc., supra, 142 Conn.App. at 81-86, 63 A.3d 1011. Accordingly, public policy considerations prohibit the recognition of the legal duty on which the plaintiffs' claim of direct injury is premised. The plaintiffs' negligent infliction of emotional distress claims, to have any viability, could only be characterized as sounding in bystander liability. See Clohessy v. Bachelor, 237 Conn. at 35-36, 675 A.2d 852. B We likewise conclude that Judge Tyma properly characterized the plaintiffs' intentional infliction of emotional distress counts as raising claims for bystander emotional distress. Our conclusion is guided by our determination that the behaviors alleged by the plaintiffs; see footnote 5 of this opinion; related to the Hospital's care of Helen and only the consequences affected the plaintiffs. However, our analysis does not end here. "In order for the plaintiff to prevail in a case for liability . [alleging intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe." (Internal quotation marks omitted.) Perez-Dickson v. Bridgeport, 304 Conn. 483, 526-27, 43 A.3d 69 (2012). By contrast, to recover in a case for bystander emotional distress, a plaintiff must establish that he or she is closely related to the injured victim, had contemporaneous sensory perception of the injuring event or immediate observation of its consequences, that the injured party suffered substantial injury, and that the recovering party suffered serious emotional distress beyond that anticipated from a disinterested observer and which is itself not abnormal. Clohessy v. Bachelor, supra, 237 Conn. at 56, 675 A.2d 852. Reasoned jurisprudence instructs that when a defendant's extreme and outrageous conduct is directed toward a third party, but is specifically intended to or recklessly causes the plaintiff emotional distress, the plaintiff may, if other elements are also satisfied, have a claim for bystander (indirect) intentional infliction of emotional distress. See Clohessy v. Bachelor, supra, 237 Conn. at 56, 675 A.2d 852. The Restatement (Third) of Torts states that "[w]hen an actor's extreme and outrageous conduct causes harm to a third person, as, for example, when a murderer kills a husband in the presence of his wife, the actor may know that the murder is substantially certain to cause severe emotional harm to the witnessing spouse. The murderer acts at least recklessly with regard to that risk." 2 Restatement (Third), Torts, Liability for Physical and Emotional Harm § 46, comment (m), p. 147 (2010). Additionally, mirroring the limitations placed on bystander claims for emotional distress in Clohessy, the Restatement (Third) further suggests that recovery for bystander emotional harm be limited to bystanders "who are close family members and who contemporaneously perceive the event." Id., comment (m), p. 148; see Clohessy v. Bachelor, supra, 237 Conn. at 56, 675 A.2d 852. Here, the plaintiffs argue that they raised direct intentional infliction of emotional distress claims because "[i]n total disregard of [Helen's] wishes and [their] directions, the [Hospital] unilaterally terminated [Helen's] life support and killed her." In making this claim, the plaintiffs have identified the Hospital's allegedly extreme and outrageous conduct as the termination of Helen's life support against their direction. They argue that the Hospital's action toward Helen caused them emotional distress and, if the Hospital acted with the purpose of causing them emotional distress, they have a direct claim for intentional infliction of emotional distress as opposed to a bystander claim. This argument, however, is ill conceived. The plaintiffs' argument does not pivot on their status as bystanders or as the direct recipients of the defendant's alleged malfeasance. Rather, the plaintiffs focus on the concept of intentional behavior. See Perez-Dickson v. Bridgeport, supra, 304 Conn. at 526, 43 A.3d 69 (first prong of intentional infliction of emotional distress requires plaintiff prove defendant intended to or recklessly inflicted emotional distress on plaintiff). The pleadings reflect, however, that the conduct that the plaintiffs characterize as extreme and outrageous was not directly inflicted upon them but upon Helen. Therefore, Judge Tyma properly determined that the plaintiffs' intentional infliction of emotional distress counts were premised on bystander liability. III Having already concluded that both Judge Lee and Judge Tyma, in their decisions, properly characterized the plaintiffs' emotional distress claims as bystander claims; see part II of this opinion; we next consider whether Judge Lee properly granted the Hospital's motion to strike the negligent infliction of emotional distress claims. "We begin by setting out the well established standard of review in an appeal from the granting of a motion to strike. Because a motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court, our review of the court's ruling on the [defendant's motion] is plenary. . We take the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency.... Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.... Moreover, we note that [w]hat is necessarily implied [in an allegation] need not be expressly alleged.... It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.... Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Citations omitted; internal quotation marks omitted.) Gazo v. Stamford, supra, 255 Conn. at 260, 765 A.2d 505. As previously stated, "[b]ystander emotional distress is a derivative claim, pursuant to which a bystander who witnesses another person (the primary victim) suffer injury or death as a result of the negligence of a third party seeks to recover from that third party for the emotional distress that the bystander suffers as a result." Squeo v. Norwalk Hospital Assn., supra, 316 Conn. at 564, 113 A.3d 932. "Courts historically have been reluctant to recognize this cause of action"; id.; in the context of medical malpractice, which "differs from the typical bystander scenario, such as an automobile accident, in which a lay witness is able to simultaneously assess that (1) something has gone terribly awry, and (2) the error is the cause of the resulting injuries to the primary victim." Id., at 577, 113 A.3d 932. In fact, in Maloney, our Supreme court unequivocally "h[e]ld that a bystander to medical malpractice may not recover for emotional distress." Maloney v. Conroy, supra, 208 Conn. at 393, 545 A.2d 1059. Subsequently, however, our Supreme Court recognized a cause of action for bystander emotional distress; Clohessy v. Bachelor, supra, 237 Conn. at 56, 675 A.2d 852 ; but substantially limited the circumstances under which bystander emotional distress claims could be brought in the medical malpractice context. Squeo v. Norwalk Hospital Assn., supra, at 560, 113 A.3d 932. In order to bring a claim for bystander emotional distress in the context of medical malpractice, a plaintiff must satisfy the following four conditions: "(1) he or she is closely related to the injury victim, such as the parent or the sibling of the victim"; Clohessy v. Bachelor, supra, at 56, 675 A.2d 852 ; (2) "the severe emotional distress that he or she suffers as a direct result of contemporaneously observing gross professional negligence such that the bystander is aware, at the time, not only that the defendant's conduct is improper but also that it will likely result in the death of or serious injury to the primary victim"; Squeo v. Norwalk Hospital Assn., supra, at 580-81, 113 A.3d 932 ; (3) "the injury of the victim must be substantial, resulting in [the victim's] death or serious physical injury"; Clohessy v. Bachelor, supra, at 56, 675 A.2d 852 ; and (4) the bystander's emotional injuries are severe and debilitating, such that they warrant a psychiatric diagnosis or otherwise substantially impair his or her ability to cope with life's daily routines and demands. Squeo v. Norwalk Hospital Assn., supra, at 591-92, 113 A.3d 932. Judge Lee granted the Hospital's motion to strike the plaintiffs' bystander emotional distress claims on two separate grounds. First, he concluded that Maloney v. Conroy, supra, 208 Conn. at 397, 545 A.2d 1059, barred all claims of bystander claims of emotional distress premised on medical negligence. Additionally, Judge Lee determined that, independent of Maloney, the plaintiffs had not alleged that they "witnessed the actual removal of the respirator or the resulting demise of Helen or arrived shortly thereafter" and, as such, could not satisfy "the contemporaneous sensory perception of the event or conduct that causes the injury, or by [arrival] on the scene soon thereafter and before substantial change has occurred in the victim's condition or location," requirement for bystander claims under Clohessy v. Bachelor, supra, 237 Conn. at 56, 675 A.2d 852. In Squeo, which was decided after the judgments in the present case, our Supreme Court held that Clohessy had superseded Maloney 's complete bar against bringing bystander emotional distress actions premised on medical malpractice. Squeo v. Norwalk Hospital Assn., supra, 316 Conn. at 570, 113 A.3d 932. In reaching this conclusion, however, the court in Squeo recognized only limited circumstances in which a plaintiff can plead a bystander emotional distress action premised on medical malpractice. Id., at 560, 113 A.3d 932. One necessary predicate is that the plaintiff plead facts indicating that he or she "contemporaneously observ[ed] gross professional negligence such that [he or she] is aware, at the time, not only that the defendant's conduct is improper but also that it will likely result in the death of or serious injury to the primary victim." Id., at 580-81, 113 A.3d 932. The court in Squeo refined, but did not eliminate, Clohessy 's requirement that the bystander have contemporaneous sensory perception of the event. In the present case, it was this requirement that the court concluded was absent from the complaint. We agree. In their complaint, the plaintiffs allege that the Hospital breached its duty to Helen when it decided to change her status to "Do Not Reintubate" and permanently removed her ventilator. Nowhere, however, did the plaintiffs allege that they had contemporaneously observed this discrete act, knew of its likelihood to cause the primary victim serious bodily injury or death, or immediately recognized, without the aid of medical explanation, that the act constituted gross negligence. Id., at 580-81, 113 A.3d 932 ("a bystander to medical malpractice may recover for the severe emotional distress that he or she suffers as a direct result of contemporaneously observing gross professional negligence such that the bystander is aware, at the time, not only that the defendant's conduct is improper but also that it will likely result in the death of or serious injury to the primary victim"); Clohessy v. Bachelor, supra, 237 Conn. at 56, 675 A.2d 852 ("the emotional injury of the bystander is caused by the contemporaneous sensory perception of the event or conduct that causes the injury"); Amodio v. Cunningham, 182 Conn. 80, 91-92, 438 A.2d 6 (1980) ("[i]n addition to the requirement that the plaintiff bystander perceive the negligent act, it appears that recovery for emotional distress resulting from injury inflicted upon another is also restricted to situations where the injury to the third party is manifest contemporaneously with the negligent act"). Judge Lee, in striking the plaintiffs' counts, correctly noted that "the plaintiffs nowhere allege that they witnessed the actual removal of the respirator or the resulting demise of [Helen] or arrived shortly thereafter." Specifically, the plaintiffs do not allege in their complaint that any of them were present at the committee meeting when the Hospital made the decision to permanently remove Helen's ventilator. Also, they do not allege that any of the plaintiffs were at the Hospital when the Helen's ventilator was ultimately removed and she died. In sum, the plaintiffs do not allege in their complaint that any of them witnessed the Hospital's alleged misconduct. Accordingly, Judge Lee properly concluded that the plaintiffs had not stated a claim for bystander emotional distress under Clohessy. As a result, the court properly granted the Hospital's motion to strike the plaintiffs' bystander negligent infliction of emotional distress claims. IV Because we have already concluded that the plaintiffs' allegations sound in bystander emotional distress; see part II of this opinion; we next determine whether Judge Tyma correctly granted the Hospital's motion for summary judgment on the counts alleging intentional infliction of emotional distress. We review a court's grant of summary judgment de novo. Squeo v. Norwalk Hospital Assn., supra, 316 Conn. at 592 n. 19, 113 A.3d 932. It is well established that "[s]ummary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.... Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact . a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue . It is not enough . for the opposing party merely to assert the existence of such a disputed issue.... Mere assertions of fact, whether contained in a complaint or in a brief, are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment].... "As a general rule, then, [w]hen a motion for summary judgment is filed and supported by affidavits and other documents, an adverse party, by affidavit or as otherwise provided by . [the rules of practice], must set forth specific facts showing that there is a genuine issue for trial, and if he does not so respond, summary judgment shall be entered against him.... Requiring the nonmovant to produce such evidence does not shift the burden of proof. Rather, it ensures that the nonmovant has not raised a specious issue for the sole purpose of forcing the case to trial." (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., at 593-94, 113 A.3d 932. As noted, in order to prove a claim for bystander emotional distress in the medical malpractice context, a plaintiff must allege a close kinship with the victim, that he or she suffered extreme emotional distress directly resulting from contemporaneous observance of the alleged gross malfeasance, that the victim's injuries were serious and that the plaintiff's emotional injuries are severe and debilitating. Squeo v. Norwalk Hospital Assn., supra, 316 Conn. at 580-81, 113 A.3d 932. In the case at hand, the plaintiffs did not allege, nor did they produce evidence that they contemporaneously saw the conduct they claim was extreme and outrageous, namely, the permanent removal of Helen's ventilator. See id. To the contrary, relevant deposition testimony established that the plaintiffs could not possibly have witnessed the allegedly extreme and outrageous conduct of the Hospital because none of the plaintiffs was present when the ventilator was permanently removed from Helen. Gary, after learning that the Hospital was considering removing Helen's ventilator, left the Hospital before the ventilator was removed and does not remember whether he saw Helen again. Tracey never visited Helen in the Hospital. And Michael, Kevin, and Randy only learned about the removal of the ventilator after it was removed, during a phone call, and were not present at the Hospital at the relevant time. In response to this evidence produced by the Hospital in support of its summary judgment motion, the plaintiffs have not adduced any contrary evidence to establish the existence of a dispute of material fact on this issue. Faced with the Hospital's proffer, it was the plaintiffs' burden to adduce such evidence as a means of demonstrating the existence of a genuine issue of material fact. See Fernandez v. Standard Fire Ins. Co., 44 Conn.App. 220, 222, 688 A.2d 349 (1997) ("party opposing [summary judgment] must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact" [internal quotation marks omitted] ). Therefore, there is no dispute of material fact that the plaintiffs did not contemporaneously observe the Hospital's alleged extreme and outrageous conduct. As a result, the plaintiffs cannot prevail on their counts of bystander intentional infliction of emotional distress. Judge Tyma properly rendered summary judgment in favor of the Hospital on those counts. The judgments are affirmed. In this opinion the other judges concurred. Although all of the plaintiffs purported to appeal from the decisions of Judge Lee and Judge Tyma, on June 10, 2015, this court dismissed the appeal in AC 37822 as to Clarence in both his individual and representative capacities because he still has claims pending in the trial court. Accordingly, for the purpose of clarity in this opinion, we hereinafter refer to Helen's five children collectively as the plaintiffs and to Clarence as such. Neither Clarence nor the plaintiffs was present when the Hospital decided to change Helen's status to "Do Not Reintubate" or when Helen subsequently died. However, prior to the Hospital's ultimate decision, a member of the Hospital staff did call Gary and informed him that the Hospital was considering entering a "Do Not Reintubate" order for Helen. Gary, in turn, relayed the Hospital's decision to Clarence, who had expressed to the Hospital that he was Helen's next of kin and that his children were not to be involved in making medical decisions on Helen's behalf. Clarence and Gary then went to the Hospital and objected to the fact that the Hospital had changed Helen's status to "Do Not Reintubate." At the time Clarence and Gary objected to Helen's change in status, Helen was still intubated. Her ventilator was not removed until after Clarence and Gary left the Hospital and she passed away later that night. In addition, the operative complaint alleged: violations of Connecticut Unfair Trade Practices Act (CUTPA) (counts thirteen through nineteen), a violation of § 19a-571 (count twenty), assault (count twenty-three), battery (count twenty-four), and a violation of the right to privacy (count twenty-five). On October 30, 2013, the court, Lee, J., granted the Hospital's motion to strike these counts and the plaintiffs did not file a substitute pleading within the fifteen days as authorized by Practice Book § 10-44, nor did they appeal from the entry of judgment on those counts. The court, Tyma, J., also granted the Hospital's motion for summary judgment in the action filed by Clarence, as the administrator of Helen's estate, alleging medical malpractice. The court reasoned that the medical malpractice claim was duplicative of the wrongful death counts pursued in the action underlying AC 37822 and, therefore, was legally insufficient. See Floyd v. Fruit Industries, Inc., supra, 144 Conn. at 669, 136 A.2d 918. That decision was the basis for Clarence's appeal in AC 37821. For reasons stated previously in this opinion, we decline to review any claim related to that decision. The plaintiffs repeated these allegations in counts two through six of their complaint, which alleged negligent infliction of emotional distress as to each individual plaintiff respectively. The plaintiffs also claimed intentional infliction of emotional distress (counts eight through twelve), premised on the same factual allegations, but alleging further that the Hospital's actions were intentional and extreme and outrageous. Specifically, in those counts, the plaintiffs alleged that: "31. The defendant, Yale-New Haven Hospital, through its agents, apparent agents, employees, and/or staff members, intended to inflict emotional distress on the plaintiff[s] . or knew or should have known that emotional distress was the likely result of their conduct. "32. The defendant's conduct of encouraging its agents, employees and/or staff members to remove the ventilator from [Helen] despite the family's objections when it knew or should have known that without the ventilator [Helen] would pass away constitutes extreme and outrageous conduct." General Statutes (Rev. 1989) § 19a-571 was entitled "Liability re removal of life support system of incompetent patient. Attending physician must obtain consent of next of kin consideration of wishes of patient. Document as expression of wishes." and provided: "Any physician licensed under chapter 370 or any licensed medical facility which removes or causes the removal of a life support system of an incompetent patient shall not be liable for damages in any civil action or subject to prosecution in any criminal proceeding for such removal, provided (1) the decision to remove such life support system is based on the best medical judgment of the attending physician; (2) the attending physician deems the patient to be in a terminal condition; (3) the attending physician has obtained the informed consent of the next of kin, if known, or legal guardian, if any, of the patient prior to removal; and (4) the attending physician has considered the patient's wishes as expressed by the patient directly, through his next of kin or legal guardian, or in the form of a document executed in accordance with section 19a-575, if any such document is presented to, or in the possession of, the attending physician at the time the decision to terminate a life support system is made. If the attending physician does not deem the patient to be in a terminal condition, beneficial medical treatment and nutrition and hydration must be provided." See McConnell v. Beverly Enterprises-Connecticut, Inc., supra, 209 Conn. at 699 n. 5, 553 A.2d 596. We further note that the plaintiffs argued to the trial court that they had pleaded a direct claim of negligent infliction of emotional distress and that their claim was not premised on bystander liability. On appeal, the plaintiffs argue that because Squeo subsequently changed the landscape of bystander claims for emotional distress in the medical malpractice context, they should not be precluded from defending their pleadings on a basis that they already disavowed. Whether the effect of Squeo allows the plaintiffs to change tack on appeal without amending their pleadings is a question we need not reach because the plaintiffs, for all their reliance on Squeo, have not pleaded facts tending to establish the requirements mandated by Squeo, specifically that they witnessed gross negligence on the part of the Hospital; Squeo v. Norwalk Hospital Assn., supra, 316 Conn. at 580-81, 113 A.3d 932 ; and that they "suffer[ed] injuries that are severe and debilitating, such that they warrant a psychiatric diagnosis or otherwise substantially impair the bystander's ability to cope with life's daily routines and demands." Id., at 591-92, 113 A.3d 932. We further note that pleading requirements similar to those adopted in Squeo preexisted the filing of the plaintiffs' complaint. See Clohessy v. Bachelor, supra, 237 Conn. at 56, 675 A.2d 852. Although Judge Tyma granted the Hospital's motion pursuant to the now abandoned holding of Maloney, our review of a court's granting of a motion for summary judgment is plenary; Squeo v. Norwalk Hospital Assn., supra, 316 Conn. at 592 n. 19, 113 A.3d 932 ; and we may affirm the judgment on any grounds supported in the record. See Gerardi v. Bridgeport, 294 Conn. 461, 466-67, 985 A.2d 328 (2010). In the present case, the alternative ground upon which we affirm the court's judgment was briefed and argued before both the trial court and this court. See White v. Mazda Motor of America, Inc., 313 Conn. 610, 619-21, 99 A.3d 1079 (2014).

12486209

HAYES FAMILY LIMITED PARTNERSHIP et al. v. TOWN OF GLASTONBURY.

Hayes Family Ltd. P'ship v. Town of Glastonbury

2016-06-28

No. 37827.

408

423

142 A.3d 408

142

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

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

Fastcase

HAYES FAMILY LIMITED PARTNERSHIP et al. v. TOWN OF GLASTONBURY.

HAYES FAMILY LIMITED PARTNERSHIP et al. v. TOWN OF GLASTONBURY. No. 37827. Appellate Court of Connecticut. Argued April 5, 2016. Decided June 28, 2016. Richard P. Weinstein, West Hartford, with whom, on the brief, was Sarah Black Lingenheld, Farmington, for the appellants (plaintiffs). Matthew Ranelli, New Haven, with whom was Andrea L. Gomes, Hartford, for the appellee (defendant). BEACH, ALVORD and WEST, Js.

8164

51926

ALVORD, J. The plaintiffs, Hayes Family Limited Partnership, Richard P. Hayes, Jr., and Manchester/Hebron Avenue, LLC, appeal from the judgment of the trial court granting the motion to dismiss their action filed by the defendant, the town of Glastonbury. The court dismissed the plaintiffs' inverse condemnation action on the ground that they failed to meet the finality requirement for a claim of a regulatory taking of property without just compensation in violation of article first, § 11, of the Connecticut constitution and the fourteenth amendment to the United States constitution. Specifically, the plaintiffs claim that the court improperly (1) failed to consider the prior application rule and its preclusive effect on future applications for a special permit, (2) failed to conclude that this court's decision in Hayes Family Ltd. Partnership v. Town Plan & Zoning Commission, 115 Conn.App. 655, 974 A.2d 61, cert. denied, 293 Conn. 919, 979 A.2d 489 (2009), contains "findings [that] doom any alternative commercial development at the subject site," (3) concluded that the plaintiffs' single application for a special permit was not sufficient to establish finality, (4) failed to consider whether the plaintiffs' property could be used for any economically viable use, and (5) dismissed their claims where the application of the town zoning regulations resulted in at least a partial taking of their property. We affirm the judgment of the trial court. The following facts and procedural history are relevant to the resolution of the plaintiffs' claims. On June 27, 2005, the plaintiffs filed an application for a special permit to construct a CVS pharmacy located on 2.4 acres of land located at the corner of Hebron Avenue and Manchester Road in Glastonbury. The subject property is zoned for commercial development, but all uses require a special permit with design review approval. The property is abutted by an established single-family neighborhood in a rural residential zone. Following an extended public hearing, the town's Plan and Zoning Commission (commission) denied the application because of its scale and intensity in relation to the size and topography of the parcel, its impact on and lack of compatibility with the existing neighborhood, and the inadequacy of the proposed landscaping. The plaintiffs appealed from the commission's decision to the Superior Court, which dismissed their appeal on the ground that the decision was supported by substantial evidence in the record. Following this court's granting of the plaintiffs' petition for certification to appeal, they filed their appeal challenging the trial court's determination. This court affirmed the judgment of the trial court. Hayes Family Ltd. Partnership v. Town Plan & Zoning Commission, supra, 115 Conn.App. at 655, 974 A.2d 61. On October 1, 2009, the plaintiffs commenced the present action against the defendant, claiming that the denial of their application for a special permit "preclude[d] any reasonable economical development of the site and constitute [d] a[n] [unconstitutional] taking without just compensation...." The defendant filed a motion to dismiss the complaint, arguing that the facts as pleaded were insufficient to establish the finality required for an unconstitutional taking claim. The court, Aurigemma, J., concluded that the plaintiffs had failed to establish that the commission would not allow any reasonable alternative use of the property and dismissed the action. On appeal, this court concluded that the trial court should have held an evidentiary hearing before deciding the motion to dismiss and, therefore, reversed the judgment and remanded the case for further proceedings. Hayes Family Ltd. Partnership v. Glastonbury, 132 Conn.App. 218, 219, 31 A.3d 429 (2011). On remand, the court, Berger, J., by agreement of the parties, conducted a trial on the merits, but in a bifurcated manner. The parties agreed that if the court concluded that the plaintiffs had established finality, the court would deny the motion to dismiss and then determine whether they had proved their claim of inverse condemnation. After several days of evidence, the parties filed posttrial briefs for the court's consideration. On February 6, 2015, the court issued its memorandum of decision granting the defendant's motion to dismiss and rendering judgment of dismissal. In its decision, the court recited the factual and procedural background of the case, the case law applicable to regulatory taking actions, the case law applicable to the finality requirement, and a summary of the testimony and exhibits presented to the court with respect to proposed alternatives for development at the site. The court, in a comprehensive and well reasoned decision, addressed the plaintiffs' claims as set forth during the trial and in their posttrial brief, and concluded that they "failed to meet their burden to prove finality." In reaching that conclusion, the court stated: "The rejection of the 13,000 square foot CVS prototype, without examining whether an alternative might pass muster, does not establish finality. Moreover, this court does not agree with the plaintiffs that a revised application for a different development with presumably a different impact might not be acceptable under the reasons for denial in the first application." We conclude that the record supports the court's factual and legal bases for its conclusion that the plaintiffs failed to satisfy the finality requirement for judicial review of an inverse condemnation claim. It would serve no useful purpose for this court to repeat the analysis contained in the trial court's decision. See Norfolk & Dedham Mutual Fire Ins. Co. v. Wysocki, 243 Conn. 239, 241, 702 A.2d 638 (1997). We therefore adopt that decision as the proper statement of the relevant facts, issues, and applicable law. See Hayes Family Ltd. Partnership v. Glastonbury, 166 Conn.App. at 596, 142 A.3d 408 (2015) (appendix). We do believe, however, that it would be helpful to provide additional analysis with respect to two of the plaintiffs' arguments that they claim were not addressed or were inadequately addressed by the trial court in its decision. Those particular claims relate to the alleged preclusive effect of the prior application rule and this court's decision in Hayes Family Ltd. Partnership v. Town Plan & Zoning Commission, supra, 115 Conn.App. at 655, 974 A.2d 61, on any future applications for a special permit. Although the trial court concluded that the commission's denial of the first application did not logically require the denial of a less ambitious revised plan, the court did not provide a detailed explanation for its rejection of those claims. I PRIOR APPLICATION RULE "When a party files successive applications for the same property, a trial court's inquiries may vary depending on whether the application before the zoning agency is an application for a variance or an application for a permit. In considering a subsequent variance application where it has already denied a similar prior one, [a] zoning board of appeals is generally precluded from reversing a prior decision unless there has been a material change of conditions, or other considerations have intervened affecting the merits, and no vested rights have arisen.... The board is disallowed from revisiting its prior determination that the requirements for a variance are not present because, if a reversal of that determination was allowed, there would be no finality to the proceeding [and] the result would be subject to change at the whim of members or due to the effect of influence exerted upon them, or other undesirable elements tending to uncertainty and impermanence.... "Finality of decision is just as desirable in the case of an exception [or permit] as in one involving a variance. Because of the nature of an exception [or permit], however, the power of a zoning board to review a prior decision denying the exception [or permit] is not limited, as it is when a variance is sought, to the two situations mentioned above. An additional situation arises when the owner requesting an exception [or permit] files a subsequent application altering the plan under which he previously sought the exception [or permit], in order to meet the reasons for which the board denied the prior one.... To justify a special exception [or permit] . it must appear that the manner in which the owner proposes to use his property will satisfy the conditions imposed by the regulations. If, therefore, upon a second request for a special exception [or permit], there is a substantial change in the manner of use planned by the owner, the board is faced with an application materially different from the one previously denied. It may well be that the new plan, by reason of the changes made therein, will succeed, where the former failed, in satisfying the conditions enumerated in the regulations. Under such circumstances, the board is not precluded from granting the second application merely because it has denied the first.... "A subsequent [permit] application made in order to bring a prior application into compliance with applicable regulations, no matter how minor the work involved may be, is clearly not minor in regard to its significance and effect.... The board may grant the exception [or permit] once it finds that all the requirements of the ordinance have been satisfied...." (Emphasis omitted; internal quotation marks omitted.) Grasso v. Zoning Board of Appeals, 69 Conn.App. 230, 244-46, 794 A.2d 1016 (2002) ; see also Richardson v. Zoning Commission, 107 Conn.App. 36, 43-44, 944 A.2d 360 (2008). In the present case, the plaintiffs argue that the "commission will be bound under the prior application rule from allowing any reasonable commercial use of the property" because "[d]ue to the size, location, and topography of the subject property, any viable commercial development will present at least one of the issues that caused the denial of the CVS application." During the trial, as noted by the trial court, alternative proposals were offered to demonstrate uses that could be made of the property. Although the plaintiffs contended that they would not be accepted by the commission because any commercial development would result in an adverse impact to the neighborhood, it is sheer speculation to assume that a less intensive proposal than the one originally submitted would be denied by the commission. It is true that, under the prior application rule, the plaintiffs could not submit the same proposal for approval; however, changes made to bring a future application into compliance with the regulations may or may not be acceptable to the commission. "[B]y refusing to engage the commission in the zoning approval process, [the applicant] eliminated the possibility that this matter could be resolved by local political choices and settlements." Lost Trail, LLC v. Weston, 140 Conn.App. 136, 149, 57 A.3d 905, cert. denied, 308 Conn. 915, 61 A.3d 1102 (2013). Accordingly, this claim fails. II PRIOR APPELLATE COURT DECISION Additionally, the plaintiffs argue that this court's previous decision in Hayes Family Ltd. Partnership v. Town Plan & Zoning Commission, supra, 115 Conn.App. at 655, 974 A.2d 61, will have a preclusive effect on any future applications for a special permit. According to the plaintiffs, the preclusive effect is certain because of "the Appellate Court's finding that a commercial development on the subject property would have an adverse impact on neighboring residences." (Emphasis added.) The plaintiffs also claim that "[t]he Appellate Court found that the proposed development would adversely impact the neighboring residences with regard to noise, traffic, and property values." (Emphasis added.) The plaintiffs contend that "[t]he Appellate Court's findings were not based upon any particular characteristics of [the] plaintiffs' proposal but, rather, were based upon it being a commercial development adjacent to residences. Such findings doom any alternative commercial development at the subject site because any commercial development will have an adverse impact on the neighboring residences under the Appellate Court's reasoning upholding the commission's denial." (Emphasis added.) The plaintiffs have mischaracterized the holding in that decision. This court reviewed the evidence in the record to determine if it was sufficient to support the commission's denial of a particular application for a special permit. We concluded: "On the basis of the foregoing and our thorough examination of the record, we conclude that there was adequate evidence to support the commission's reasons for denying the special permit." Hayes Family Ltd. Partnership v. Town Plan & Zoning Commission , supra, 115 Conn.App. at 662, 974 A.2d 61. No mention was made of any possible future applications. Most importantly, no findings were made as to traffic, noise, property values or adverse impacts upon the neighborhood because this court is not a fact finder. "It is well settled that we do not find facts." Bria v. Ventana Corp., 58 Conn.App. 461, 466, 755 A.2d 239 (2000) ; see also Multilingual Consultant Associates, LLC v. Ngoh, 163 Conn.App. 725, 737, 137 A.3d 97 (2016). Accordingly, this claim of the plaintiffs has no merit. The judgment is affirmed. In this opinion the other judges concurred. APPENDIX HAYES FAMILY LIMITED PARTNERSHIP et al. v. TOWN OF GLASTONBURY. Appellate Court of Connecticut. Feb. 6, 2015. Superior Court, Judicial District of Hartford File No. LND-CV-09-5033344-S Memorandum filed February 6, 2015 Proceedings Memorandum of decision on defendant's motion to dismiss. Motion granted. Richard P. Weinstein, for the plaintiffs. Matthew Ranelli and Beth Bryan Critton, for the defendant. Opinion BERGER, J. I The plaintiffs, Hayes Family Limited Partnership, Richard P. Hayes, Jr., and Manchester/Hebron Avenue, LLC, seek damages from the defendant, the town of Glastonbury, under a legal theory of inverse condemnation involving the plaintiffs' property at 1199 Manchester Road in Glastonbury. On November 29, 2005, the town's Plan and Zoning Commission denied the plaintiffs' application for a special permit to construct a CVS pharmacy on the property. The plaintiffs argue that this constituted a taking without just compensation under article first, § 11, of the constitution of Connecticut and the fourteenth amendment to the constitution of the United States. The present case is another chapter in the continuing litigation between the parties. The plaintiffs appealed from the commission's denial of their special permit application to the Superior Court in Hayes Family Ltd. Partnership v. Town Plan & Zoning Commission, Superior Court, judicial district of Hartford, Docket No. CV-06-4019700-S, 2007 WL 2245790 (Conn.Super.). The court, Miller, J., dismissed the appeal on July 19, 2007. The plaintiffs petitioned for certification to appeal, arguing that the trial court improperly concluded that substantial evidence in the record supported the denial and that the commission lacked discretion to deny an application for a special permit when the applicant complied with all applicable zoning regulations. Those arguments were rejected, and the trial court's decision was affirmed on July 14, 2009. Hayes Family Ltd. Partnership v. Town Plan & Zoning Commission, 115 Conn.App. 655, 974 A.2d 61, cert. denied, 293 Conn. 919, 979 A.2d 489 (2009). The focus now before this court concerns only the inverse condemnation claim based upon the commission's November 29, 2005 denial of the plaintiffs' special permit application. "An inverse condemnation action does not concern itself with the propriety of the board's action. The only inquiry is whether a taking has, in fact, occurred." Cumberland Farms, Inc. v. Groton, 247 Conn. 196, 208, 719 A.2d 465 (1998). "An inverse condemnation claim accrues when the purpose of government regulation and its economic effect on the property owner render the regulation substantially equivalent to an eminent domain proceeding.... [W]hether a claim that a particular governmental regulation or action taken thereon has deprived a claimant of his property without just compensation is an essentially ad hoc factual inquir[y].... Short of regulation which finally restricts the use of property for any reasonable purpose resulting in a practical confiscation, the determination of whether a taking has occurred must be made on the facts of each case with consideration being given not only to the degree of diminution in the value of the land but also to the nature and degree of public harm to be prevented and to the alternatives available to the landowner." (Internal quotation marks omitted.) Lost Trail, LLC v. Weston, 140 Conn.App. 136, 146, 57 A.3d 905, cert. denied, 308 Conn. 915, 61 A.3d 1102 (2013). "Connecticut law on inverse condemnation requires total destruction of a property's economic value or substantial destruction of an owner's ability to use or enjoy the property." Bristol v. Tilcon Minerals, Inc., 284 Conn. 55, 85, 931 A.2d 237 (2007). The plaintiffs filed their first suit alleging inverse condemnation on January 30, 2006, but withdrew it on September 9, 2009. Hayes Family Ltd. Partnership v. Town Plan & Zoning Commission, Superior Court, judicial district of Hartford, Docket No. CV-06-4020760S. On October 1, 2009, the plaintiffs commenced the present action. The court, Aurigemma, J., granted the defendant's motion to dismiss on August 4, 2010. On appeal, the Appellate Court reversed the trial court's decision because it failed to hold an evidentiary hearing on whether the plaintiffs established the finality of the commission's determination, thereby providing the trial court with subject matter jurisdiction. Hayes Family Ltd. Partnership v. Glastonbury, 132 Conn.App. 218, 224, 31 A.3d 429 (2011). The case was remanded to this court for consideration of this directive. Id. By agreement of the parties, evidence was also received, and the matter was heard as a trial on the merits, albeit in a bifurcated manner, addressing issues of liability only. Hence, if this court were to conclude that the plaintiffs have proven finality, the court would deny the motion to dismiss and then consider whether the plaintiffs were successful in proving their allegation of inverse condemnation. Trial occurred on November 5, 2013, through November 8, 2013, and on December 17, 2013. At the close of the plaintiffs' case on December 17, 2013, the defendant orally moved for judgment of dismissal under Practice Book § 15-8, alleging that the plaintiffs failed to make a prima facie case that the defendant's actions in denying the special permit constituted the finality required to make a regulatory takings claim. The defendant filed its motion on December 23, 2013, the plaintiffs filed a memorandum of law in opposition on January 15, 2014, and this court heard oral argument and denied the motion on March 31, 2014. Trial continued on June 24, 2014, through June 26, 2014. The plaintiffs filed a supplemental brief on July 30, 2014, and the defendant its supplemental brief on September 5, 2014. Posttrial oral argument was heard on November 6, 2014. II A As stated by the Appellate Court, "[t]he plaintiffs own a 2.4 acre parcel of land located at 1199 Manchester Road in Glastonbury. The property is comprised of a ledge, which rises steeply from the edges of the southwesterly corner of the intersection of Hebron Avenue and Manchester Road to a heavily wooded plateau abutting an established single-family neighborhood in a rural residential zone. On June 27, 2005, the plaintiffs filed a special permit application with the Glastonbury planning and zoning commission (commission). The plaintiffs proposed to build a 13,013 square foot, thirty-two foot high building with seventy parking spaces and a drive-through window on the property. On November 29, 2005, the commission denied the plaintiffs' application, citing the project's scale and intensity in relation to the size and topography of the parcel, its impact on and lack of compatibility with the existing neighborhood and the inadequacy of the proposed landscaping." Id., at 219-20, 31 A.3d 429. In the previous land use appeal, the Appellate Court noted that the commission denied the application because: "(1) The scale of the proposal (building size and associated infrastructure) is inappropriate based upon the project intensity in relationship to the parcel size and steep topography. Site development activity and topographic modifications in the form of grading, excavation, vegetation removal and construction of a large retaining wall exceeds acceptable conditions and therefore does not meet the intent and standards of [s]ection 12 ( [s]pecial [p]ermit with [d]esign [r]eview) of the [b]uilding [z]one [r]egulations. "(2) The project would result in an unacceptable level of impact on neighboring properties, in the form of both noise and visual intrusions, and on the environment, and is therefore incompatible with the existing neighborhood. "(3) Landscaping proposed will not adequately replace existing vegetation nor provide adequate buffering to residential properties." (Internal quotation marks omitted.) Hayes Family Ltd. Partnership v. Town Plan & Zoning Commission, supra, 115 Conn.App. at 658 n. 3, 974 A.2d 61. B The plaintiffs allege that the commission's denial of their special permit constitutes a taking without just compensation. In the decision granting the motion to dismiss, the court, Aurigemma, J., discussed the substantive law concerning land use takings and the issue of finality or alternative use. Notwithstanding the Appellate Court's remand, the trial court's review of the substantive law is sound, and this court adopts the reasoning and sets forth part of that discussion here: "The issues of when and whether regulatory action constitutes taking of property was addressed by the Connecticut Supreme Court in Gil v. Inland Wetlands & Watercourses Agency, 219 Conn. 404, 415, 593 A.2d 1368 (1991), where the Court stated: " 'As we have recently reiterated, however, the plaintiff is not entitled to judicial review of the merits of his regulatory takings claim until he has met the requirement of establishing the finality of the agency determination.... To demonstrate the requisite finality, a property owner asserting a regulatory takings claim bears the burden of proving that the relevant government entity will not allow any reasonable alternative use of his property.' . "In Gil, the plaintiff submitted four applications to the Greenwich Inland Wetlands & Watercourses Agency. Each application was denied. The trial court and the Appellate Court determined that the Agency's denials of the four applications were sufficient to establish finality. The Court disagreed, stating: " 'First, although we agree with the Appellate Court that the plaintiff had a reasonable expectation of developing the property for residential purposes, the wetlands status of a portion of the property should also have warned the plaintiff that development would be difficult and that repeated applications might be necessary before the agency would approve an application for a building permit.' [Id., at 416, 593 A.2d 1368 ]. " 'Furthermore, although the plaintiff's final application reduced the footprint of the proposed house to 1800 square feet from the 2100 square feet of the preceding application, the final application nonetheless represented an increase from an earlier application's 1500 square feet proposed residence. In light of these factors, we cannot say that the agency would have rejected a more modest proposal if one had been offered by the plaintiff. " 'Our conclusion is not inconsistent with our decision in Port Clinton Associates v. Board of Selectmen, [217 Conn. 588, 587 A.2d 126, cert. denied, 502 U.S. 814, 112 S.Ct. 64, 116 L.Ed.2d 39 (1991) ]. We there stated that although repeated applications and denials are not necessary to show finality, in most cases, a property owner must do more than submit one plan to an agency in order to establish that the agency's decision is final for the purposes of the takings clause.... We further noted that the [r ]ejection of exceedingly grandiose development plans does not logically imply that less ambitious plans will receive similarly unfavorable reviews. ' . Gil v. Inland Wetlands & Watercourses Agency, supra [219 Conn.] at 416-17 [593 A.2d 1368 ]. (Citation omitted; emphasis altered.) "In MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 348-49, 106 S.Ct. 2561, 91 L.Ed.2d 285 (1986), cited by the Court in Gil, the plaintiff's application to develop a 159-unit residential subdivision in California was rejected for a number of reasons. As the plaintiffs here, the plaintiff in MacDonald argued that any use of the property in question would not be permitted for the same reasons as those given by the County Planning Commission when it rejected the plaintiff's application. The County Commission demurred to the plaintiff's complaint alleging a taking of its property for failure to state a cause of action and the California Supreme Court, the California Court of Appeal and the United States Supreme Court all held that the plaintiffs had failed to allege facts which would establish an unconstitutional taking of private property: " 'Here plaintiff applied for approval of a particular and relatively intensive residential development and the application was denied. The denial of that particular plan cannot be equated with a refusal to permit any development, and plaintiff concedes that the property is zoned for residential purposes in the County general plan and zoning ordinance. Land use planning is not an all-or-nothing proposition. A governmental entity is not required to permit a landowner to develop property to [the] full extent he might desire or be charged with an unconstitutional taking of the property.' " 'Here, as in Agins [v. Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980) ], the refusal of the defendants to permit the intensive development desired by the landowner does not preclude less intensive, but still valuable development. Accordingly, the complaint fails to state a cause of action.' McDonald, Sommer & Frates v. Yolo County, supra, [477 U.S. at 347, 106 S.Ct. 2561 ]. "The plaintiffs have cited Cumberland Farms, Inc. v. Groton, [supra, 247 Conn. at 196, 719 A.2d 465 ], to support their argument that the denial of a single application is sufficient to establish a taking. However, that case was brought after the denial of a use variance by the zoning board of appeals based on a finding of the lack of a hardship. Crucial to the Court's finding of finality was the 'prior application rule,' which prohibits a zoning board of appeals from reversing a previous decision with respect to the issue of hardship absent a material change in circumstances. "There is no similar doctrine with respect to applications for special permits. It is clear from Gil v. Inland Wetlands & Watercourses Agency, supra, [219 Conn. at 417, 593 A.2d 1368 ] that [r]ejection of exceedingly grandiose development plans does not logically imply that less ambitious plans will receive similarly unfavorable reviews. In addition, [a] governmental entity is not required to permit a landowner to develop property to [the] full extent he might desire or be charged with an unconstitutional taking of the property." (Citations omitted; emphasis in original.) Hayes Family Ltd. Partnership v. Glastonbury, Superior Court, judicial district of Hartford, Docket No. CV-09-5033344-S, 2010 WL 3447792, *3-*5 (August 4, 2010) (Aurigemma, J. ), rev'd on other grounds, 132 Conn.App. 218, 31 A.3d 429 (2011). Since the Appellate Court's reversal and remand of the trial court's decision to grant the motion to dismiss in this case, the Appellate Court has rendered its opinion in Lost Trail, LLC v. Weston, supra, 140 Conn.App. at 136, 57 A.3d 905. The court in Lost Trail, LLC, affirmed the judgment of the trial court that had rejected an inverse condemnation claim based upon a municipal decision requiring the petitioner to obtain subdivision approval for a proposed development. Id., at 148-50, 57 A.3d 905. "A final decision has been rendered when the initial decision-maker [has] arrived at a definitive position on the issue that inflict[ed] an actual, concrete injury . If a property owner has not obtained a final decision from the administrative agency applying the regulation, the reviewing court lacks jurisdiction to rule on a taking claim. The jurisdictional nature of finality derives from its similarity to ripeness." (Citation omitted; internal quotation marks omitted.) Id., at 147, 57 A.3d 905. III In Hayes Family Ltd. Partnership v. Town Plan & Zoning Commission, supra, 115 Conn.App. at 661-62, 974 A.2d 61, the Appellate Court noted that "[t]he commission heard evidence that to build the largest CVS possible, the plaintiffs sought to remove the existing hillside comprising the subject property, excavating to within twenty-five feet of the property lines of abutting residential properties, more than 80,000 cubic yards of material, and build a steep-sloped 225 foot long, fourteen foot high retaining wall to accommodate a 13,013 square foot building with a drive-through window, surrounded on three sides by six foot wide sidewalks, two dumpsters, loading docks and seventy parking spaces. The record reflects that the proposed retaining wall was among the largest that the commission had ever reviewed and that it was atypical in that such steep slopes are generally found in connection with road construction projects, not residential neighborhoods. The evidence revealed that the removal of the excavated material from the site would require more than 5700 dump truck loads and more than 11,000 round trips, with a truck leaving the site every two minutes. All existing vegetation would be stripped, and the newly formed slope would be so steep as to render it unlikely to sustain the sparse vegetation proposed by the plaintiffs as a buffer to nearby homes." In the present case, the trial court, Aurigemma, J., was provided with affidavits, attached to the plaintiffs' memorandum of law in opposition to the motion to dismiss (pleading # 107.00), from Patrick N. O'Leary, an engineer with Vanasse, Hangen, Brustlin, Inc., as well as from Arthur B. Estrada, an appraiser. Both also testified before this court, and their affidavits were offered into evidence. (Pls. exhs. 33 and 36.) Their oral testimony offered similar conclusions to those stated in the affidavits. Indeed, O'Leary's conclusions, seven through nine, reported by Judge Aurigemma, are essentially the same: "7. In undertaking that review, I have considered several hypothetical alternative uses, including the construction of a single-story commercial building that might, for example, be used for . a bank branch building, and the construction of a two-story commercial building of anywhere between 13,000 and 18,000 square feet (with about half such amount allocated to each story) that might be used as an office building. Such uses would be smaller in scale than the CVS Pharmacy proposal that was rejected by the Commission. "8. I believe that, based on the topography and location of the Property, none of those hypothetical alternative proposals will avoid the reasons previously identified by the Commission as a basis for denying the Special Permit application for the Property. "9. Specifically, the construction of any such hypothetical alternative use buildings will require significant excavation of the Property and the removal of materials from the Property. The impacts to the existing grade of the site and landscape would be similar to those of the CVS Pharmacy proposal due to the topographical relief associated with the site. The disturbance to the Property for grading and vegetation removal is likely to be similar for such commercial buildings as it was for the CVS Pharmacy proposal. Furthermore, the construction of buildings for such alternative commercial uses at the Property will likely have a similar impact on neighboring properties, in terms of noise and visual intrusions, when compared to that of the proposed CVS Pharmacy. Landscaping and buffering associated with such alternative commercial uses would be similar to those for the CVS Pharmacy proposal due to the excavation sideslopes that would be required to address the topographic relief at the Property." (Internal quotation marks omitted.) Hayes Family Ltd. Partnership v. Glastonbury, supra, 2010 WL 3447792, *2-*3. Although reminded by both the court and the defendant that the denial of the special permit application was beyond challenge, much of the proffer of this testimony could easily be interpreted to be further argument on the first CVS proposal. For instance, the extent of the massive excavation necessitated an extensive discussion of the proposed slope, ingress and egress grades, and buffers. Both O'Leary and Hayes testified that a two-to-one slope was compliant, the 8 percent grade was compliant, and the landscape buffering was generous, extensive, and appropriate. Nevertheless, both Judge Miller and the Appellate Court in the previous zoning appeal found that "there was adequate evidence to support the commission's reasons for denying the special permit." Hayes Family Ltd. Partnership v. Glastonbury, supra, 115 Conn.App. at 662, 974 A.2d 61. The plaintiffs appear to accept-albeit reluctantly-our courts' refusal to set aside the commission decision, but only if it means that they are compensated for that decision. The plaintiffs misunderstand the nature of the police power as it applies to land use development. "Public regulation of land use and development pursuant to the exercise of the police power often results in some diminution of the property rights of a particular landowner . [I]t has often been noted that the police power, which regulates for the public good the uses to which private property may be put and requires no compensation, must be distinguished from the power of eminent domain, which takes private property for a public use and requires compensation to the owner." (Citations omitted; internal quotation marks omitted.) Luf v. Southbury, 188 Conn. 336, 349, 449 A.2d 1001 (1982) ; see also Brecciaroli v. Commissioner of Environmental Protection, 168 Conn. 349, 354-55, 362 A.2d 948 (1975). A denial of one application does not necessarily constitute a fifth amendment taking. First, a plaintiff must prove, as discussed previously, that he or she has been denied all reasonable use of the property. This is known as the finality doctrine. "[T]he plaintiff is not entitled to judicial review of the merits of his regulatory takings claim until he has met the requirement of establishing the finality of the agency determination." Gil v. Inland Wetlands & Watercourses Agency, supra, 219 Conn. at 415, 593 A.2d 1368 ; see also Lost Trail, LLC v. Weston, supra, 140 Conn.App. at 147, 57 A.3d 905 ("[u]ntil a property owner has obtained a final decision regarding the application of the zoning ordinance and subdivision regulations to its property, it is impossible to tell whether the land retain[s] any reasonable beneficial use or whether [existing] expectation interests ha[ve] been destroyed" [internal quotation marks omitted] ); Hayes Family Ltd. Partnership v. Glastonbury, supra, 132 Conn.App. at 223, 31 A.3d 429 ("[t]o demonstrate the requisite finality, a property owner asserting a regulatory takings claim bears the burden of proving that the relevant government entity will not allow any reasonable alternative use of his property" [internal quotation marks omitted] ); Murphy v. New Milford Zoning Commission, 402 F.3d 342, 348 (2d Cir.2005) ("[r]equiring a property owner to obtain a final, definitive position from zoning authorities evinces the judiciary's appreciation that land use disputes are uniquely matters of local concern more aptly suited for local resolution"). Hayes testified about two other hypothetical proposals cast within the framework of the denial to develop the CVS. They were presented to this court as alternatives that the plaintiffs argue would also have failed to be approved under the reasoning of the denial of the first application. Nevertheless, these alternatives were never presented and never reviewed or considered by the commission; nor were any others. While the plaintiffs believe they need not present another application, "[s]trength of unilateral conviction is not, however, a substitute for a final administrative decision." Lost Trail, LLC v. Weston, supra, 140 Conn.App. at 148-49, 57 A.3d 905. "To demonstrate the requisite finality, a property owner asserting a regulatory takings claim bears the burden of proving that the relevant government entity will not allow any reasonable alternative use of his property." (Emphasis in original.) Gil v. Inland Wetlands & Watercourses Agency, supra, 219 Conn. at 415, 593 A.2d 1368. It is difficult to meet this burden with one application, especially when even the developer's own engineer stated that "in my professional opinion, I think there is a reasonable possibility that a layout of this nature could be approved by a municipality, including Glastonbury." (Transcript [tr.], November [Nov.] 8, 2013, pp. 34-35.) The plaintiffs argue that Cumberland Farms, Inc. v. Groton, supra, 247 Conn. at 196, 719 A.2d 465, allows an inverse condemnation case based upon one denial. As previously set forth, the court in Cumberland Farms, Inc., concluded that a zoning board of appeals' denial of a variance constituted a final decision; id., at 197, 719 A.2d 465 ; as opposed to the one initial special permit application in the present case. Cumberland Farms, Inc., is thus instructive but not controlling herein. This court heard testimony about the existence of smaller CVS store prototypes, and O'Leary was not sure which prototype was in use in 2005. (Tr., Nov. 8, 2013, pp. 18-20.) He indicated that the size of the project was determined on a site by site basis. (Tr., Nov. 8, 2013, pp. 23-25.) Constructing a smaller building and moving the top of the slope farther from the houses would also reduce other impacts of the project such as excavation, the retaining wall, vegetation loss, and parking. Perhaps more to the point, evidence was presented that there are other possible uses such as a CVS differently configured and with only one driveway or other uses requiring less excavation. (Pls. exhs. 7-14.) The town introduced at least three concept plans reflecting a smaller footprint and a smaller impact. (Defendant's [def.] exhs. 500, 501, and 517.) O'Leary noted that a smaller CVS might be approved on the site. (Tr., Nov. 8, 2013, pp. 32-36.) At the November 6, 2014 posttrial oral argument, the plaintiffs argued that the reasons for the commission's denial of the special permit application, which were upheld by Judge Miller and the Appellate Court, set the bar that any new application would need to meet. In other words, the plaintiffs asserted, based upon the Appellate Court's decision in Hayes Family Ltd. Partnership v. Town Plan & Zoning Commission, supra, 115 Conn.App. at 658 n. 3, 974 A.2d 61, that any proposed development would necessarily "result in an unacceptable level of impact on neighboring properties, in the form of both noise and visual intrusions, and on the environment, and [would] be therefore incompatible with the existing neighborhood." (Internal quotation marks omitted.) Nevertheless, while the plaintiffs' property does not contain wetlands like that in Gil, it requires extensive excavation and regrading. Thus, Gil is clearly applicable here. "[T]he . status of a portion of the property should also have warned the plaintiff that development would be difficult and that repeated applications might be necessary before the agency would approve an application for a building permit." Gil v. Inland Wetlands & Watercourses Agency, supra, 219 Conn. at 416, 593 A.2d 1368. Indeed, "in most cases, a property owner must do more than submit one plan to an agency in order to establish that the agency's decision is final for the purposes of the takings clause.... [T]he [r]ejection of exceedingly grandiose development plans does not logically imply that less ambitious plans will receive similarly unfavorable reviews." (Citation omitted; footnote added; internal quotation marks omitted.) Id., at 417, 593 A.2d 1368. The rejection of the 13,000 square foot CVS prototype, without examining whether an alternative might pass muster, does not establish finality. Moreover, this court does not agree with the plaintiffs that a revised application for a different development with presumably a different impact might not be acceptable under the reasons for denial in the first application. "[B]y refusing to engage the commission in the zoning approval process, [the applicant] eliminated the possibility that this matter could be resolved by local political choices and settlements." Lost Trail, LLC v. Weston, supra, 140 Conn.App. at 149, 57 A.3d 905. "[A] court, in the proper circumstances, is well advised to stay its hand to allow for political choices and settlements that are outside of the judicial competence. It is for the town . in the first instance to decide whether to exercise the police power in order to reach an accommodation with the plaintiffs." Luf v. Southbury, supra, 188 Conn. at 353-54, 449 A.2d 1001. In light of the evidence, the plaintiffs have failed to meet their burden to prove finality. Accordingly, the town's motion to dismiss is granted. We summarily dispose of this claim. Although the plaintiffs contend that they demonstrated that "no economically viable use of the property is possible," they have provided no references to the transcript or other portions of the record that support this statement. "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). Because the plaintiffs' claims are interrelated, we necessarily address them together in this opinion. In their appellate brief, the plaintiffs also included the following issues: (1) "Did the trial court err in holding that plaintiffs had not met the finality requirement where alternative uses would be subject to denial based upon traffic concerns?," and (2) "Did the trial court err in holding that plaintiffs had not met the finality requirement where alternative uses would be subject to denial based upon noncompliance with the plan of development?" The commission provided a collective statement that gave the reasons for its denial of the plaintiffs' application for a special permit. Those reasons did not include traffic concerns or noncompliance with the plan of development. "In zoning cases, we have held that, when a zoning commission has formally stated the reasons for its decision, the court should not go behind that official collective statement . [and] attempt to search out and speculate [on] other reasons which might have influenced some or all of the members of the commission to reach the commission's final collective decision." (Internal quotation marks omitted.) Gibbons v. Historic District Commission, 285 Conn. 755, 769, 941 A.2d 917 (2008). "To go beyond those stated reasons invades the factfinding mission of the agency by allowing the court to cull out reasons that the agency may not have found to be credible or proven." (Internal quotation marks omitted.) Id., at 771, 941 A.2d 917. Accordingly, we decline to address these claims. The plaintiffs also claim on appeal that the trial court improperly dismissed their action where the application of the zoning regulations resulted in at least a partial taking of their property. The court did not rule on a partial taking claim because it was never expressly raised. In their posttrial brief, the term "partial taking" is mentioned twice in twenty-six pages; the plaintiffs provided no case law or other authority with respect to this concept. No mention of "partial taking" is made in the plaintiffs' posttrial reply brief. The trial court did not rule on a claim of a partial taking because it had not been presented to the court. "For this court to . consider [a] claim on the basis of a specific legal ground not raised during trial would amount to trial by ambuscade, unfair both to the [court] and to the opposing party." (Internal quotation marks omitted.) Dauti Construction, LLC v. Planning & Zoning Commission, 125 Conn.App. 665, 674-75, 10 A.3d 92 (2010), cert. denied, 300 Conn. 924, 15 A.3d 630 (2011). Moreover, the plaintiffs' failure to demonstrate that they met the finality requirement for a regulatory taking claim likewise is dispositive of this issue. Affirmed. Hayes Family Ltd. Partnership v. Glastonbury, 166 Conn.App. 585, 142 A.3d 408 (2016). According to testimony of Hayes, he purchased the property in his name and transferred it to Manchester/Hebron Avenue, LLC, the named applicant before the commission. Additionally, Hayes Family Limited Partnership, along with Manchester-Hebron Avenue, LLC, also filed a suit that was a bill of discovery against certain individuals, namely, Attorney David F. Sherwood, Frank Longobardi, Patricia Synhorst, John Flanigan, and 1312 Manchester Road, LLC, to determine who opposed their special permit application and who paid Sherwood's fees. Motions to strike the action against the individual defendants were granted on June 25, 2008. Hayes Family Ltd. Partnership v. Sherwood, Superior Court, judicial district of Hartford, Docket No. CV-08-4035887-S, 2008 WL 2802400 (June 25, 2008) (Hon. Richard M. Rittenband, judge trial referee) (45 Conn. L. Rptr. 772 ). On March 9, 2009, the court, Elgo, J., entered judgment against the plaintiffs as to the individual defendants, and the matter was withdrawn as to the defendant partnership on March 30, 2009. On November 6, 2013, the court, with counsel and representatives of the parties, viewed the subject premises. Practice Book § 15-8 provides: "If, on the trial of any issue of fact in a civil matter tried to the court, the plaintiff has produced evidence and rested, a defendant may move for judgment of dismissal, and the judicial authority may grant such motion if the plaintiff has failed to make out a prima facie case. The defendant may offer evidence in the event the motion is not granted, without having reserved the right to do so and to the same extent as if the motion had not been made." The motion was denied based upon Charter Oak Lending Group, LLC v. August, 127 Conn.App. 428, 434, 14 A.3d 449, cert. denied, 302 Conn. 901, 23 A.3d 1241 (2011). "The standard for determining whether the plaintiff has made out a prima facie case, under Practice Book § 15-8, is whether the plaintiff put forth sufficient evidence that, if believed, would establish a prima facie case, not whether the trier of fact believes it.... For the court to grant the motion [for judgment of dismissal pursuant to Practice Book § 15-8 ], it must be of the opinion that the plaintiff has failed to make out a prima facie case. In testing the sufficiency of the evidence, the court compares the evidence with the allegations of the complaint.... 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.... [T]he evidence offered by the plaintiff is to be taken as true and interpreted in the light most favorable to [the plaintiff], and every reasonable inference is to be drawn in [the plaintiff's] favor." (Emphasis in original; internal quotation marks omitted.) Id. In the present case, the Appellate Court acknowledged that "the plaintiffs were required to establish the finality of the commission's determination to confer subject matter jurisdiction on the court.... On the basis of the complaint and the affidavits submitted by both parties, the court determined that the plaintiffs could not prove finality because the plaintiffs only submitted one special permit application for a particularly intensive development." (Citations omitted.) Hayes Family Ltd. Partnership v. Glastonbury, supra, 132 Conn.App. at 223, 31 A.3d 429. As previously noted, the Appellate Court found that in light of our motion practice, an evidentiary hearing was required on factual disputes. Id., at 223-24, 31 A.3d 429. The motion for judgment of dismissal, taking the plaintiffs' evidence as true, cannot really address the fundamental issue of the finality of the agency decision with only one application, i.e., if there are other uses for the property, and, more importantly, if any other application would be rejected. The finality issue is addressed in this decision notwithstanding the denial of the motion for judgment of dismissal. Of course, a plaintiff's initial success in establishing a prima facie case does not equate to success on the merits; the plaintiff's testimony can be rebutted. See, e.g., Fisher v. Big Y Foods, Inc., 298 Conn. 414, 419 n. 10, 3 A.3d 919 (2010) ; Eagen v. Commission on Human Rights & Opportunities, 135 Conn.App. 563, 577 n. 5, 42 A.3d 478 (2012). (See also plaintiffs' [pls.] exhibit [exh.] 25.) The plaintiffs introduced evidence at trial that after the commission denied their application, they attempted to seek a variance from the Zoning Board of Appeals allowing them to construct the building closer to the front yard line on both Manchester Road and Hebron Avenue. After a public hearing and discussion on December 4, 2006, the board denied the request by a vote of two to three. (Pls. exhs. 26-27.) The plaintiffs did not appeal from that decision, nor is that denial a basis for the present case. Furthermore, a request for a variance is different from an application for a special permit. To the extent the plaintiffs argue that no plan would satisfy the commission and that submitting further applications would be futile, "[a]lthough a property owner need not pursue 'patently fruitless measures' to satisfy the finality doctrine . it cannot claim futility by setting up its own obstacles." (Citation omitted.) Lost Trail, LLC v. Weston, 140 Conn.App. 136, 151-52, 57 A.3d 905 (2013). At posttrial oral argument on November 16, 2014, it was noted that the variance request involved a CVS that was smaller than the one proposed to the commission. O'Leary testified that some CVS stores had just one entrance and exit. (Tr., Nov. 8, 2013, p. 27.) Indeed, at the November 29, 2005 meeting, commission members indicated that the plaintiffs might develop the property in a less intensive manner than that proposed in the original and only special permit application. (Defendant's [def.] exh. 521, p. 18.) At oral argument on the motion for judgment of dismissal on March 31, 2014, the plaintiffs' counsel questioned whether the issue being debated was indeed the number of submitted applications. Gil reminds us that it is the substantive difference in the applications that is of concern. Gil v. Inland Wetlands & Watercourses Agency, supra, 219 Conn. 404, 416-17, 593 A.2d 1368 (1991).

12486296

ASTORIA FEDERAL MORTGAGE CORPORATION v. GENESIS LIMITED PARTNERSHIP et al.

Astoria Fed. Mortg. Corp. v. Genesis Ltd. P'ship

2016-07-26

No. 37754.

1121

1136

143 A.3d 1121

143

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

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

Fastcase

ASTORIA FEDERAL MORTGAGE CORPORATION v. GENESIS LIMITED PARTNERSHIP et al.

ASTORIA FEDERAL MORTGAGE CORPORATION v. GENESIS LIMITED PARTNERSHIP et al. No. 37754. Appellate Court of Connecticut. Argued Feb. 11, 2016. Decided July 26, 2016. Jane I. Milas, with whom, on the brief, was Jaime Paoletti, New Haven, for the appellant (defendant Professional Services Group, Inc.). Stephen G. Walko, Greenwich, with whom were Frank Velardi and, on the brief, Julia E. Braun, for the appellee (substitute plaintiff). KELLER, MULLINS and NORCOTT, Js.

7945

48655

KELLER, J. In this foreclosure action, the defendant Professional Services Group, Inc., appeals from the trial court's judgment granting the motion filed by the plaintiff, Bellmore Partners, Inc., to dismiss the defendant's cross claim. The defendant claims that the court erred by granting the plaintiff's motion to dismiss because it improperly concluded that the defendant lacked standing. We agree and accordingly reverse the judgment of the court. The following procedural history is relevant to this appeal. On October 15, 2009, Astoria Federal Mortgage Corporation (Astoria) filed a four count complaint against Genesis Limited Partnership (Genesis) and the defendant, seeking, inter alia, foreclosure of two mortgages that Genesis had executed and delivered to Astoria for property located at 89 Minerva Street in Derby (Derby property). In the complaint, Astoria alleged that it was in possession of two notes that were secured by two mortgages on the Derby property: (1) a note dated May 14, 2004, wherein Genesis had promised to pay Astoria $210,000; and (2) a note dated June 20, 2005, wherein Genesis had promised to pay Astoria $165,000. Furthermore, Astoria acknowledged that the defendant maintained an encumbrance of record on the Derby property, which it alleged was subordinate in right to the claimed mortgages, "by virtue of a [m]echanic's [l]ien in the original principal amount of [$293,800] dated September 8, 2009, and recorded in volume 589 at page 253 of the Derby land records." On October 23, 2009, Astoria filed a motion for default against the defendant for its failure to appear, which the court denied on October 27, 2009. On December 10, 2009, Astoria filed a demand for disclosure of defense against the defendant. On December 21, 2009, the defendant filed its disclosure of defense and its answer and special defense. In its disclosure of defense and as a special defense, the defendant asserted that it held a valid mechanic's lien on the Derby property, which was security for construction work on the Derby property that it had commenced on March 12, 2002, and which it alleged was a claim prior in right to the mortgages claimed by Astoria. On July 19, 2010, Genesis filed a chapter 11 bankruptcy petition in the United States Bankruptcy Court for the District of Connecticut. During the pendency of Genesis' bankruptcy proceedings, the defendant, on August 13, 2011, assigned its mechanic's lien on the Derby property to Viking Acquisitions, LLC (Viking). On September 30, 2011, this assignment was recorded at volume 633, page 273 of the Derby land records. On April 12, 2012, the Bankruptcy Court issued an "Order Regarding Limited Relief from the Automatic Stay," which stated the following: "The court having held a hearing on March 20, 2012, with respect to the motion for relief from stay filed by [the plaintiff] on January 10, 2011 . and the motion for immediate order of relief from stay for violation of court ordered stipulations filed by [the plaintiff] on February 13, 2012 . the parties having requested limited relief at the hearing to allow the parties to move forward with proceedings in Connecticut Superior Court as to the extent, validity, and priority of the mechanic's lien . allegedly held by [the defendant] on [the Derby property]; and the court having determined that cause exists to grant limited relief from stay as requested by the parties, it is hereby "Ordered that relief from the automatic stay is granted, for cause, pursuant to 11 U.S.C. § 362(d)(1) to allow the parties to move forward with proceedings in Connecticut Superior Court for the limited purpose of determining the extent, validity and priority of the [defendant's mechanic's lien]; and it is hereby further "Ordered that relief from the automatic stay is also granted to allow the parties to proceed in Connecticut state court with any appeals from any decision of the Connecticut Superior Court as to the extent, validity, and priority of [the defendant's mechanic's lien] ." On April 18, 2012, Astoria moved to substitute the plaintiff in the foreclosure proceeding. The court granted Astoria's motion on May 14, 2012. On September 20, 2012, the court granted the plaintiff's motion for a determination of priorities and ordered the following: "The court finds the priorities to be (1) the first mortgage dated May 14, 2004, and (2) the second mortgage dated June 20, 2006. No further determination is made." On October 12, 2012, Viking assigned the defendant's mechanic's lien back to the defendant, but this assignment was not recorded in the Derby land records until June 26, 2014. On March 18, 2014, the bankruptcy court dismissed Genesis' chapter 11 bankruptcy case. On April 16, 2014, the defendant filed a cross claim against Genesis, in which it sought, inter alia, to foreclose the mechanic's lien that it held on the Derby property. In its cross claim, the defendant alleged that it had "furnished materials and rendered services to Genesis in the construction, raising, removal or repairs to the property owned by Genesis," and that it had "commenced to furnish materials and render services on or about March 12, 2002, and ceased furnishing materials and rendering services on August 20, 2009." On June 17, 2014, the plaintiff filed a motion to dismiss the defendant's cross claim. In the motion, the plaintiff asserted that the defendant's cross claim should be dismissed because "[a]t the time the cross claim was filed, [the defendant] was not the holder of the [mechanic's] lien and therefore [did] not have standing to pursue foreclosure." In its memorandum of law in support of the motion, which was also filed on June 17, 2014, the plaintiff argued, inter alia, that the defendant did not have standing to foreclose its mechanic's lien on the Derby property because it had failed to record the October 12, 2012 assignment whereby Viking assigned the mechanic's lien back to the defendant. Therefore, the plaintiff argued, the defendant did not have standing because it was not the record holder of the lien on April 16, 2014, which was the date on which it filed its cross claim seeking foreclosure of the lien. On July 15, 2014, the defendant filed its opposition to the plaintiff's motion to dismiss, wherein it argued that it did have standing to bring its cross claim against Genesis because the October 12, 2012 assignment was valid despite the defendant's failure to record the assignment prior to its commencement of the foreclosure action. The defendant also asserted that on June 26, 2014, it had recorded the October 12, 2012 assignment in volume 696, page 51 of the Derby land records. The defendant attached a copy of the recorded assignments to its opposition. On October 14, 2014, the court held a hearing on the plaintiff's motion to dismiss. On January 22, 2015, the court issued a memorandum of decision wherein it granted the plaintiff's motion to dismiss the defendant's cross claim. In its memorandum of decision, the court stated the following: "On April 16, 2014, the defendant . filed a cross [claim] against codefendant Genesis . seeking to foreclose a mechanic's lien, dated September 8, 2009, against Genesis.... "Prior thereto, [the defendant] assigned its mechanic's lien to Viking . on August 13, 2011. On September [30], 2011, at 12:13 p.m., this assignment was recorded at volume 633, page 273, of the Derby land records. "Subsequently, on October 12, 2012, Viking . assigned the same mechanic's lien back to [the defendant]. This second assignment was not recorded until 4:01 p.m. on June [26], 2014, at volume 696, page 51, of the Derby land records. "[The plaintiff], successor to Astoria . by virtue of a valid assignment of a note and mortgage, dated September 29, 2010, challenges the standing of [the defendant] to file the present cross claim. It argues that [the defendant] did not own or possess the mechanic's lien as [the defendant] had assigned its mechanic's lien to Viking . and Viking . was the owner of record of the mechanic's lien on April 16, 2014.... "Reference to General Statutes § 47-10(a) provides resolution of the issue of standing here. Section 47-10(a) provides in relevant part: 'No conveyance shall be effectual to hold any land against any other person but the grantor and his heirs, unless recorded on the records of the town in which the land lies....' The failure to record renders an assignee without standing to maintain an action against any party except the grantor and his heirs.... This court finds that the assignment of the mechanic's lien, dated October 12, 2012, but not recorded until June 26, 2014, was not effectual against any [party] except Viking . and that [the defendant] did not have standing to file the April 16, 2014 cross claim. "The motion of [the plaintiff] to dismiss the April 16, 2014 cross claim is granted." (Citation omitted; footnote in original.) On February 11, 2015, the defendant filed a motion to reargue with respect to the plaintiff's motion to dismiss. The court denied the defendant's motion on the same date. This appeal followed. We address the defendant's claim that the court erred in granting the plaintiff's motion to dismiss because it improperly concluded that the defendant lacked standing as a result of its failure to record, prior to filing its cross claim, the October 12, 2012 assignment of the mechanic's lien. The defendant makes two arguments with respect to this claim: (1) the court erred by improperly interpreting and applying § 47-10 to the unrecorded October 12, 2012 assignment of the mechanic's lien; and (2) the court erred by relying on other nonbinding trial court decisions. We reverse the court's judgment on the basis of the defendant's first argument. We begin our analysis of this argument by setting forth the appropriate standard of review. "The standard of review for a court's decision on a motion to dismiss . is well settled." (Internal quotation marks omitted.) Manning v. Feltman, 149 Conn.App. 224, 229-30, 91 A.3d 466 (2014). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.... [O]ur review of the court's ultimate legal conclusion and resulting [determination] of the motion to dismiss will be de novo.... In undertaking this review, we are mindful of the well established notion that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.... "Trial courts addressing motions to dismiss for lack of subject matter jurisdiction . may encounter different situations, depending on the status of the record in the case.... Different rules and procedures will apply, depending on the state of the record at the time the motion is filed. "When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light.... In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.... "In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss . other types of undisputed evidence . and/or public records of which judicial notice may be taken . the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint.... Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts].... If affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits . or other evidence, the trial court may dismiss the action without further proceedings.... If, however, the defendant submits either no proof to rebut the plaintiff's jurisdictional allegations . or only evidence that fails to call those allegations into question . the plaintiff need not supply counteraffidavits or other evidence to support the complaint, but may rest on the jurisdictional allegations therein." (Citations omitted; emphasis in original; footnotes omitted; internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 650-52, 974 A.2d 669 (2009). On appeal, the defendant argues that the court erred by concluding that it did not have standing to bring its cross claim against Genesis seeking foreclosure of the mechanic's lien that it held because, pursuant to § 47-10, it had not recorded the October 12, 2012 assignment of the lien at the time it filed its cross claim. Specifically, the defendant argues that the court erred in this regard because its conclusion did not harmonize the statutory requirements of § 47-10 with those of General Statutes § 49-10, 49-17, and 49-33. In opposition, the plaintiff argues that the court's conclusion was proper because § 47-10 applies to assignments of mechanic's liens, thereby requiring the defendant, as an assignee of such a lien, to record the October 12, 2012 assignment prior to seeking foreclosure of the lien in order to have standing. Because we conclude that noncompliance with the recording requirement of § 47-10 is not fatal to a party's standing to bring an action to foreclose a mechanic's lien, we therefore conclude that the court in the present case erred in its determination that the defendant lacked standing to bring its cross claim by virtue of its failure to record the October 12, 2012 assignment prior to filing its cross claim. "[A] party must have standing to assert a claim in order for the court to have subject matter jurisdiction over the claim.... Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy." (Internal quotation marks omitted.) People's United Bank v. Kudej, 134 Conn.App. 432, 438-39, 39 A.3d 1139 (2012). "In order to determine whether a party has standing to make a claim under a statute, a court must determine the interests and the parties that the statute was designed to protect.... Essentially the standing question in such cases is whether the . statutory provision on which the claim rests properly can be understood as granting persons in the plaintiff's position a right to judicial relief.... The plaintiff must be within the zone of interests protected by the statute." (Internal quotation marks omitted.) Connecticut Carpenters Benefit Funds v. Burkhard Hotel Partners II, LLC, 83 Conn.App. 352, 355, 849 A.2d 922 (2004). The present appeal raises the issue of whether § 47-10, the Connecticut land transfer recordation statute, which generally applies to conveyances of land, applies to an assignment of a mechanic's lien, which is governed by § 49-33. In conducting this inquiry, we must employ relevant statutory construction principles. We note that "[w]hen construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.... [W]e 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 [the] text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." (Internal quotation marks omitted.) Dairyland Ins. Co. v. Mitchell, 320 Conn. 205, 211 n. 9, 128 A.3d 931 (2016). "It is an accepted principle of statutory construction that, if possible, the component parts of a statute should be construed harmoniously in order to render an overall reasonable interpretation.... [T]he legislature is always presumed to have created a harmonious and consistent body of law.... [T]his tenet of statutory construction . requires [an appellate court] 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.... [T]he General Assembly is always presumed to know all the existing statutes and the effect that its action or non-action will have upon any one of them." (Citation omitted; internal quotation marks omitted.) Board of Education v. State Board of Education, 278 Conn. 326, 333-34, 898 A.2d 170 (2006). Section 47-10 provides in relevant part that "[n]o conveyance shall be effectual to hold any land against any other person but the grantor and his heirs, unless recorded on the records of the town in which the land lies...." Given that the term "conveyance" is not statutorily defined, we may look to the commonly approved meaning of the term. See O'Dell v. Kozee, 307 Conn. 231, 243-44, 53 A.3d 178 (2012). Our Supreme Court has observed that "[a] conveyance, [i]n its most common usage [is a] transfer of title to land from one person, or class of persons, to another by deed. [The ] [t ]erm may also include assignment, lease, mortgage or encumbrance of land ." (Emphasis added; internal quotation marks omitted.) Groton v. Mardie Lane Homes, LLC, 286 Conn. 280, 288-89, 943 A.2d 449 (2008) ; see also Black's Law Dictionary (9th Ed. 2009). Our Supreme Court and this court also have concluded that a mortgage is considered a conveyance of land within the meaning of the Connecticut recordation statute, § 47-10. See Farmers & Mechanics Savings Bank v. Garofalo, 219 Conn. 810, 816 n. 8, 595 A.2d 341 (1991) ; Second National Bank of New Haven v. Dyer, 121 Conn. 263, 267, 184 A. 386 (1936) ; Family Financial Services, Inc. v. Spencer, 41 Conn.App. 754, 761, 677 A.2d 479 (1996). Also, "[t]he assignment [of a mortgage] is in effect a conveyance of the land included in the mortgage." Second National Bank of New Haven v. Dyer, supra, at 267, 184 A. 386. To date, however, no Connecticut appellate court has opined as to whether an assignment of a mechanic's lien is a conveyance of land within the meaning of § 47-10. This is the issue that confronts us in the present appeal. A mechanic's lien, also called a construction lien in some jurisdictions, "is a statutory lien on buildings and other improvements on realty, and on the realty itself, in favor of contractors, materialmen, and other classes of workers, as a security device to help ensure that those who improve real property receive payment even in the absence of a contractual relationship between the lien claimant and the owner of the property." (Footnotes omitted.) 53 Am.Jur.2d 88-89, Mechanic's Liens § 1 (2006). The statute that governs mechanic's liens in Connecticut is § 49-33, which provides in relevant part: "If any person has a claim for more than ten dollars for materials furnished or services rendered in the construction, raising, removal or repairs of any building or any of its appurtenances or in the improvement of any lot or in the site development or subdivision of any plot of land, and the claim is by virtue of an agreement with or by consent of the owner of the land upon which the building is being erected or has been erected or has been moved, or by consent of the owner of the lot being improved or by consent of the owner of the plot of land being improved or subdivided, or of some person having authority from or rightfully acting for the owner in procuring the labor or materials, the building, with the land on which it stands or the lot or in the event that the materials were furnished or services were rendered in the site development or subdivision of any plot of land, then the plot of land, is subject to the payment of the claim...." See footnote 11 of this opinion. Section 49-33 "creates a statutory right in derogation of the common law . [but] its provisions should be liberally construed in order to implement its remedial purpose of furnishing security for one who provides services or materials.... [A reviewing court's] interpretation, however, may not depart from reasonable compliance with the specific terms of the statute under the guise of a liberal construction.... [Moreover] the provisions of [the Connecticut] statute differ sufficiently from the mechanic's lien legislation of other states so that precedents elsewhere are of limited utility in the interpretation of [the Connecticut statute]." (Citations omitted; footnote omitted; internal quotation marks omitted.) New England Savings Bank v. Meadow Lakes Realty Co., 243 Conn. 601, 611-12, 706 A.2d 465 1998). Our Supreme Court has noted that "the important purpose of mechanic's lien statutes [is] to provide an inexpensive and simple method for material suppliers and contractors to secure the value of the services or materials that they have added to the property [which is subject to the mechanic's lien]." Red Rooster Construction Co. v. River Associates, Inc., 224 Conn. 563, 573, 620 A.2d 118 (1993). Finally, because a mechanic's lien foreclosure action is an equitable proceeding; Russo Roofing, Inc. v. Rottman, 86 Conn.App. 767, 776, 863 A.2d 713 (2005) ; a court, in its equitable powers, must look to substance over form, may consider equitable principles even though they may not have been specifically pleaded, and "may consider all relevant circumstances to ensure that complete justice is done." McKeever v. Fiore, 78 Conn.App. 783, 788, 829 A.2d 846 (2003). Against this background, we must decide whether the recording requirements set forth in § 47-10 apply to the assignment of a mechanic's lien. Specifically, we must decide whether an assignee of a mechanic's lien lacks standing to bring an action to foreclose the lien as a result of its failure, prior to bringing the foreclosure action, to record the assignment in the relevant town land records. In conducting this inquiry, we are guided by the statutory interpretation principle that "specific terms covering the given subject matter will prevail over general language of the same or another statute which might otherwise prove controlling.... The provisions of one statute which specifically focus on a particular problem will always, in the absence of express contrary legislative intent, be held to prevail over provisions of a different statute more general in its coverage." (Internal quotation marks omitted.) Housatonic Railroad Co. v. Commissioner of Revenue Services, 301 Conn. 268, 302, 21 A.3d 759 (2011). Our review of § 49-33, as well as other Connecticut statutes specifically governing mechanic's liens; see General Statutes § 49-34 through 49-47a ; and relevant case law pertaining to these statutes, reveals no requirement that the assignment of a mechanic's lien be recorded in order to confer standing upon an assignee of the lien to bring an action to foreclose it. With respect to the general issue concerning which parties typically have standing to enforce a mechanic's lien, our Supreme Court, in Seaman v. Climate Control Corp., 181 Conn. 592, 595, 436 A.2d 271 (1980), stated the following: "Those who provide services or materials in connection with the construction of a building are entitled to claim a lien on the land that they have improved if they fall into one of two categories. Lienors are protected if they have a claim either (1) by virtue of an agreement with or the consent of the owner of the land, or (2) by the consent of some person having authority from or rightfully acting for such owner in procuring labor or materials." Neither this court nor our Supreme Court, however, has determined whether principles of assignment and recordation override these fundamental standing requirements for a party to foreclose a mechanic's lien. In order to guide our inquiry in this regard, we seek guidance from certain provisions of the mechanic's lien statute, specifically, subsection (i) of § 49-33, as well as case law pertaining to the foreclosure of mortgages. Subsection (i) of § 49-33 states that "[a]ny mechanic's lien may be foreclosed in the same manner as a mortgage." Our Supreme Court also has opined that "to the extent the foreclosure of mortgages and mechanic's liens involve similar procedural steps, the law established in mortgage foreclosure actions also applies to mechanic's liens." Handsome, Inc. v. Planning & Zoning Commission, 317 Conn. 515, 528, 119 A.3d 541 (2015). As a result, we deem the statutes pertaining to the foreclosure of mortgages, as well as pertinent case law, to be instructive as to our inquiry regarding an assignee's standing to foreclose a mechanic's lien. In this vein, we particularly focus on § 49-17, which governs the foreclosure of a mortgage by the owner of debt without legal title. On the basis of our reading of the plain language of these statutes, and in accordance with the principle that statutory provisions that focus on more specific topics should prevail over the requirements of statutes that are more general in their coverage; see Housatonic Railroad Co. v. Commissioner of Revenue Services, supra, 301 Conn. at 302, 21 A.3d 759 ; we conclude that the dictates of § 49-33 and 49-17 must trump those of § 47-10 because § 47-10 covers the general topic of land conveyances, whereas § 49-33 and 49-17 cover the more specific topics of mechanic's liens and mortgage foreclosures, respectively. Section 49-17, titled "Foreclosure by owner of debt without legal title," provides in relevant part that "[w]hen 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." "[Section] 49-17 codifies the well established common-law principle that the mortgage follows the note, pursuant to which only the rightful owner of the note has the right to enforce the mortgage.... Our legislature, by adopting § 49-17, created a statutory right for the rightful owner of a note to foreclose on real property regardless of whether the mortgage has been assigned to him." (Internal quotation marks omitted.) JPMorgan Chase Bank, National Assn. v. Simoulidis, 161 Conn.App. 133, 144 n. 9, 126 A.3d 1098 (2015), cert. denied, 320 Conn. 913, 130 A.3d 266 (2016). Thus, pursuant to this statute, a valid assignee of a mortgage note has standing to foreclose irrespective of whether that assignee records the assignment prior to instituting the action. Two leading commentators on Connecticut foreclosure actions have refined the principle codified in § 49-17 : "Although it should be clear that the assignee of a mortgage deed cannot foreclose without prior compliance with . § 49-10 and . § 47-10, such is clearly not the situation with the assignee or holder of a mortgage note ." (Emphasis in original.) 1 D. Caron & G. Milne, Connecticut Foreclosures (5th Ed. 2011) § 5-2:2, p. 163. We are aware that mechanic's liens are not completely analogous to mortgages insofar as, unlike mortgages, mechanic's liens typically are not separated into a note and a deed. Indeed, our Supreme Court has observed that there are "clear differences" between mortgages and mechanic's liens: "A mechanic's lien, unlike a mortgage, is not an agreement or contract between parties but rather a lien upon real estate which the plaintiff seeks to take by force of law and eventually to foreclose.... Unlike a mortgage deed, which may be reformed to reflect the contracting parties' mutual intent, the placement of a mechanic's lien is a unilateral act in which the lienor bears the burden of demonstrating statutory compliance." (Citation omitted; internal quotation marks omitted.) First Constitution Bank v. Harbor Village Ltd. Partnership, 230 Conn. 807, 821, 646 A.2d 812 (1994). In this same decision, however, our Supreme Court noted that reliance on mortgage law to assess a particular aspect of the law governing mechanic's liens is appropriate, "particularly when similar guiding policies are in play." Id., at 820, 646 A.2d 812. In this vein, we think that the principle that the mortgage follows the note, or the debt, can be analogized to mechanic's liens for purposes of foreclosure standing. Specifically, on the basis of our reading of the plain language of § 47-10, 49-17, and 49-33(i), we conclude that the failure of an assignee of a mechanic's lien to record an otherwise valid assignment of the lien does not deprive the assignee of the lien of standing to commence a foreclosure action. Although our research reveals no Connecticut appellate authority that directly supports the proposition that an assignee of a mechanic's lien need not record an otherwise validly assigned mechanic's lien in order to have standing to foreclose it, our conclusion is bolstered by this court's decision in Connecticut Carpenters Benefit Funds v. Burkhard Hotel Partners II, LLC, supra, 83 Conn.App. at 352, 849 A.2d 922. In that case, this court examined the issue of whether a party that had not directly furnished materials or rendered services on a property subject to a mechanic's lien nevertheless had standing to foreclose the mechanic's lien by virtue of the fact that it "[stood] in the shoes" of the employees who had furnished materials and rendered services on the property. Id., at 354-55, 849 A.2d 922. This court answered this question in the affirmative. Id., at 360-61, 849 A.2d 922. Although the appeal did not involve the absence of a recordation, let alone the absence of a recordation with respect to an assignment, the case did involve the question of whether a party that appeared to lack statutory standing to foreclose a mechanic's lien nevertheless fell within the protection of the Connecticut mechanic's lien statutes, thereby conferring standing to foreclose a mechanic's lien. Moreover, this court's reasoning in Connecticut Carpenters Benefit Funds sheds light on the importance of permitting foreclosure of mechanic's liens in the interest of furnishing laborers with compensation for materials or services that they had provided for the subject property. See id., at 358-60, 849 A.2d 922. This court further supported its conclusion that the employee benefits funds had standing to foreclose the mechanic's lien by referring to the reasoning of decisions from appellate courts in other jurisdictions, which had addressed similar standing issues involving mechanic's liens, and which had analyzed statutes that were similar in nature to the Connecticut mechanic's lien statutes insofar as they had to be liberally construed and they protected persons who provided labor or services. Id., at 359-60, 849 A.2d 922. This court noted the importance of the fact that the parties asserting standing in those cases were found to have standing to enforce mechanic's liens primarily because they fell within the zone of interests to be protected by the statutes, and they were seeking to enforce the liens for the benefit of the persons who actually had performed the labor that had given rise to the liens. Id., at 355, 359-60, 849 A.2d 922. We iterate that the court in the present case was required to consider the allegations in the cross claim in their most favorable light and to indulge every presumption favoring jurisdiction. See Manning v. Feltman, supra, 149 Conn.App. at 229-30, 91 A.3d 466. The defendant, in its cross claim, asserted that it commenced providing materials and services to the Derby property on March 12, 2002, and that it ceased such provision on August 20, 2009. The defendant also asserted in its cross claim that a principal balance amounting to $293,800 remained due and owing to it for the services and materials provided, that on September 8, 2009, its president caused a certificate of mechanic's lien in writing to be recorded at volume 589, page 253 of the Derby land records, and that on this same date, it also gave written notice to Genesis communicating its intent to claim a mechanic's lien. In support of its cross claim, the defendant attached an April 16, 2014 notice of lis pendens "claiming a foreclosure of a mechanic's lien from [Genesis] to [the defendant] in the principal amount of [$293,800] plus interest and legal fees, recorded on September 8, 2009 on the Derby [land records] in volume 589, page 253," along with the property description that was filed in the same land records. In support of its motion in opposition to the plaintiff's motion to dismiss, the defendant submitted a July 7, 2014 affidavit wherein the defendant's president, Domenic Paniccia, averred, inter alia: that the defendant had filed a mechanic's lien against the Derby property, dated September 8, 2009, at volume 589, page 253 of the Derby land records; that it had assigned the mechanic's lien to Viking on or about August 13, 2011; and that Viking had assigned the mechanic's lien back to the defendant on October 12, 2012. The defendant also filed a certified copy of the August 13, 2011 assignment of the mechanic's lien, which was recorded in the Derby land records on September 30, 2011, as well as a certified copy of the October 12, 2012 assignment of the mechanic's lien, which was recorded in the Derby land records on June 26, 2014. The court, in its memorandum of decision dismissing the defendant's cross claim, found that the defendant "assigned its mechanic's lien to [Viking] on August 13, 2011," and that "on October 12, 2012, [Viking] assigned the same mechanic's lien back to [the defendant]." (Emphasis added.) Finally, Astoria, in its complaint and in its demand for a disclosure of defense from the defendant, acknowledged that "[the defendant] may claim an interest in [the Derby property] by virtue of a [m]echanic's [l]ien in the original principal amount of [$293,800] dated September 8, 2009, and recorded in volume 589 at page 253 of the Derby land records." The defendant established, by the allegations of its cross claim and proof submitted to the court, that it had been validly assigned a mechanic's lien for the construction work that it had performed on the Derby property. Thus, the defendant has established that it is entitled to pursue its statutory remedy under § 49-33. In light of the remedial purpose of the mechanic's lien statutes, the requirement that such statutes be construed liberally, and the fact that an action to foreclose a mechanic's lien is equitable in nature, we are not persuaded that the defendant's failure to record the assignment of the lien prior to filing its cross claim deprived it of standing to foreclose the lien. The judgment is reversed and the case is remanded for further proceedings consistent with this opinion. In this opinion the other judges concurred. The named defendant in this action, Genesis Limited Partnership, is not a party to the present appeal. Furthermore, David E. Paniccia was cited in as a defendant but also is not a party to this appeal. Therefore, in this opinion, we refer to Genesis Limited Partnership as Genesis and to Professional Services Group, Inc., as the defendant. On May 14, 2012, Bellmore Partners, Inc., was substituted as the plaintiff in this foreclosure proceeding. Therefore, in this opinion, we refer to Bellmore Partners, Inc., as the plaintiff and to the original named plaintiff, Astoria Federal Mortgage Corporation, as Astoria. 11 U.S.C. § 362 (2012), entitled "Automatic stay," provides in relevant part: "(a) Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title, or an application filed under section 5(a)(3) of the Securities Investor Protection Act of 1970, operates as a stay, applicable to all entities of- "(1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title . "(4) any act to create, perfect, or enforce any lien against property of the estate; "(5) any act to create, perfect, or enforce against property of the debtor any lien to the extent that such lien secures a claim that arose before the commencement of the case under this title; "(6) any act to collect, assess, or recover a claim against the debtor that arose before the commencement of the case under this title . "(d) On request of a party in interest and after notice and a hearing, the court shall grant relief from the stay provided under subsection (a) of this section, such as by terminating, aning, modifying, or conditioning such stay- "(1) for cause, including the lack of adequate protection of an interest in property of such party in interest...." We note that this ruling determining priorities is not the subject of the present appeal. At the hearing, counsel for the plaintiff urged the court to dismiss the defendant's cross claim for lack of subject matter jurisdiction by virtue of the fact that it was not the holder of the mechanic's lien. Plaintiff's counsel further argued that, throughout the foreclosure proceedings and the bankruptcy proceedings that had occurred prior to the date of the hearing, the defendant effectively had represented that it was the holder of the mechanic's lien because it had participated in those proceedings. Plaintiff's counsel nevertheless argued that the defendant lacked standing to foreclose the lien because Viking was the holder of record of the lien at the time that the defendant filed its cross claim. In opposition, counsel for the defendant urged the court not to dismiss its cross claim because it was undisputed that Viking had reassigned the lien to the defendant prior to its filing of the cross claim. Counsel for the defendant also represented to the court that the plaintiff was not prejudiced by the defendant's failure to record the October, 2012 assignment of the mechanic's lien, that the defendant was the lien holder, that it had performed the work subject to the lien, and that it was the party which had an interest in its foreclosure. "The court declines any comment regarding the legal sufficiency or validity of the assignments of the mechanic's lien herein-such as, for instance, whether the validating act, General Statutes § 47-36aa, cured any defects-as those are questions for another time." Because we agree with the defendant's first argument and reverse the court's decision on this ground, we need not address the defendant's other argument. See Ludgin v. McGowan, 64 Conn.App. 355, 357 n. 1, 780 A.2d 198 (2001). We also exercise plenary review in this appeal because we must interpret and determine the applicability of statutes. See Dairyland Ins. Co. v. Mitchell, 320 Conn. 205, 210, 128 A.3d 931 (2016) (issue of whether insurance policy exclusion was valid pursuant to meaning and applicability of statute entails plenary review); J.E. Robert Co. v. Signature Properties, LLC, 309 Conn. 307, 317-18, 71 A.3d 492 (2013) (question of standing pursuant to statute entails plenary review). General Statutes § 49-10, entitled "Assignment of mortgage debt. Form of instrument. Requirements. Sufficient notice of assignment. Allocation of recording fees paid by a nominee of a mortgage. Operation of executed assignment," provides in relevant part: "(a) As used in this section, 'mortgage debt' means a debt or other obligation secured by mortgage, assignment of rent or assignment of interest in a lease. "(b) Whenever any mortgage debt is assigned by an instrument in writing containing a sufficient description to identify the mortgage, assignment of rent or assignment of interest in a lease, given as security for the mortgage debt, and that assignment has been executed, attested and acknowledged in the manner prescribed by law for the execution, attestation and acknowledgement of deeds of land, the title held by virtue of the mortgage, assignment of rent or assignment of interest in a lease, shall vest in the assignee.... "(i) An assignment executed in accordance with this section shall operate to assign the interest of the assignor in the mortgage which is the subject of the assignment, even if such interest is, in fact, acquired by the assignor after executing such assignment or does not appear of record until after the execution of such assignment...." General Statutes § 49-17, entitled "Foreclosure by owner of debt without legal title," 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." General Statutes § 49-33, entitled "Mechanic's lien. Precedence. Rights of subcontractors," provides in relevant part: "(a) If any person has a claim for more than ten dollars for materials furnished or services rendered in the construction, raising, removal or repairs of any building or any of its appurtenances or in the improvement of any lot or in the site development or subdivision of any plot of land, and the claim is by virtue of an agreement with or by consent of the owner of the land upon which the building is being erected or has been erected or has been moved, or by consent of the owner of the lot being improved or by consent of the owner of the plot of land being improved or subdivided, or of some person having authority from or rightfully acting for the owner in procuring the labor or materials, the building, with the land on which it stands or the lot or in the event that the materials were furnished or services were rendered in the site development or subdivision of any plot of land, then the plot of land, is subject to the payment of the claim. "(b) The claim is a lien on the land, building and appurtenances or lot or in the event that the materials were furnished or services were rendered in the site development or subdivision of any plot of land, then on the plot of land and the claim takes precedence over any other encumbrance originating after the commencement of the services, or the furnishing of any such materials, subject to apportionment as provided in section 49-36. "(c) If any such liens exist in favor of two or more persons for materials furnished or services rendered in connection with the same construction, raising, removal or repairs of any building or any of its appurtenances, or in the improvement of any lot, or in the site development or subdivision of any plot of land, no one of those persons shall have any priority over another except as hereinafter provided.... "(i) Any mechanic's lien may be foreclosed in the same manner as a mortgage." In Seaman v. Climate Control Corp., supra, 181 Conn. at 595-96, 436 A.2d 271, our Supreme Court observed that "[l]ienors in the second category must give timely notice of their intent to claim a lien in order to perfect their lien, while those in the first category need not give such notice. General Statutes § 49-35. Lienors in the second category include subcontractors and persons who furnish materials or services by virtue of a contract with the original contractor or with any subcontractor, that is to say at least first and second tier subcontractors. General Statutes § 49-35." Although we find these statutes to be instructive, they are not controlling for purposes of our analysis. With respect to pertinent case law concerning foreclosure of mortgages, we acknowledge that the plaintiff argues that Family Financial Services, Inc. v. Spencer, supra, 41 Conn.App. at 754, 677 A.2d 479, is controlling precedent. We disagree. In that case, this court held, inter alia, that a mortgage assignment and power of attorney needed to be recorded on the land records in order to be effective against a mortgagor. Id., at 760-62, 677 A.2d 479. We note, however, that our Supreme Court's decision in RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 32 A.3d 307 (2011), overruled in part on other grounds by J.E. Robert Co. v. Signature Properties, LLC, 309 Conn. 307, 325 n. 18, 71 A.3d 492 (2013), essentially superseded this court's holding in Family Financial Services, Inc., as it pertained to whether the failure to record rendered an assignment ineffective. Our Supreme Court, in RMS Residential Properties, LLC, concluded that, pursuant to § 49-17, the rightful owner of a mortgage note has a right to foreclose the mortgage regardless of whether the mortgage had been assigned to him. See RMS Residential Properties, LLC v. Miller, supra, at 230, 32 A.3d 307 ; see also Equity One, Inc. v. Shivers, 310 Conn. 119, 126-27, 74 A.3d 1225 (2013) (acknowledging statutory right to foreclose set forth in § 49-17 and further noting that standing to enforce note is established by provisions of Uniform Commercial Code); Countrywide Home Loans Servicing, LP v. Creed, 145 Conn.App. 38, 49-53, 75 A.3d 38 (concluding that plaintiff had standing to foreclose mortgage note and agreeing with plaintiff that defendant did not produce evidence that recording error as to assignment rebutted presumption that plaintiff had standing to foreclose by virtue of possessing note), cert. denied, 310 Conn. 936, 79 A.3d 889 (2013). The statutory right set forth in § 49-17 overrides any recording requirement for purposes of standing to foreclose a mortgage, and, therefore, the plaintiff's argument that Family Financial Services, Inc. v. Spencer, supra, at 760-62, 677 A.2d 479, should control is misplaced. In First Constitution Bank v. Harbor Village Ltd. Partnership, supra, 230 Conn. at 807, 646 A.2d 812, our Supreme Court analyzed the issue of whether a mechanic's lien was invalid as against a subsequently and properly recorded mortgage that had been executed on the same property, due to the fact that the mechanic's lien certificate that was recorded in the town clerk's office omitted an attached description of the property subject to the lien. Id., at 808, 646 A.2d 812. Our Supreme Court held that the mechanic's lien was valid despite a recording error. Most notably, in its decision, the court discussed the policy of Connecticut courts to construe the mechanic's lien statutes liberally in order to achieve the remedial purpose of the statutes, and it observed that "our courts have been liberal in validating liens despite claimed errors on the face of the lien certificate where the mistake was made in good faith and no resulting prejudice was claimed." (Internal quotation marks omitted.) Id., at 815-16, 646 A.2d 812. Moreover, the court analogized the error at issue with mortgage recordation errors: "In the context of mortgages, we have recognized that [m]any errors in recording . are so neutralized by other matters which do appear in the record, that no searcher after the title possibly could be misled.... [S]uch shortcomings should not affect the validity of the record as notification." (Internal quotation marks omitted.) Id., at 819, 646 A.2d 812.

12486302

MERLE S. v. COMMISSIONER OF CORRECTION.

Merle S. v. Comm'r of Corr.

2016-08-16

No. 37388.

1183

1193

143 A.3d 1183

143

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

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

Fastcase

MERLE S. v. COMMISSIONER OF CORRECTION.

MERLE S. v. COMMISSIONER OF CORRECTION. No. 37388. Appellate Court of Connecticut. Argued May 23, 2016. Decided Aug. 16, 2016. Albert J. Oneto IV, assigned counsel, with whom, on the brief, was David B. Rozwaski, assigned counsel, for the appellant (petitioner). Jacob L. McChesney, special deputy assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Eva Lenczewski, supervisory assistant state's attorney, for the appellee (respondent). SHELDON, PRESCOTT and WEST, 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 defendant's full name or to identify the victim or others through whom the victim's identity may be ascertained. See General Statutes § 54-86e.

4480

28045

WEST, J. The petitioner, Merle S., appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. Specifically, the petitioner claims that the habeas court abused its discretion by denying his petition for certification to appeal, and erred in concluding (1) that he had procedurally defaulted on his claim that his guilty plea was involuntarily tendered and (2) that his trial counsel's performance was not deficient. We disagree with the petitioner, and, accordingly, we dismiss the appeal. The record reveals the following relevant procedural history. On December 2, 2010, the petitioner pleaded guilty on a substitute information to one count of assault in the first degree in violation of General Statutes § 53a-59 (a)(3) and one count of risk of injury to a child in violation of General Statutes § 53-21(a)(1). He also admitted to two violations of probation. The petitioner was represented by Errol Skyers, special public defender. The court, Damiani, J., imposed a total effective sentence of fifteen years imprisonment, execution suspended after nine years, followed by five years of probation. The petitioner did not move to withdraw his plea or challenge it in a direct appeal. On July 21, 2014, the petitioner, through appointed counsel, filed a revised amended petition for writ of habeas corpus alleging, inter alia, that the petitioner's heavily medicated state at the time he entered his guilty plea rendered his plea involuntary. The petitioner further alleged that his trial counsel was ineffective by failing to inquire about his medicated state at the time the plea was entered and, therefore, did not ensure that he was competent to plead guilty. The respondent, the Commissioner of Correction, filed a return, raising the special defense of procedural default as to any claim that the petitioner's plea was involuntary. The petitioner filed his response asserting that his claims were based on ineffective assistance of counsel and, therefore, not subject to procedural default. The habeas trial, at which the petitioner and his trial counsel testified, was held on August 7, 2014. The court issued its memorandum of decision denying the petition on September 19, 2014. The court concluded that the petitioner had procedurally defaulted on his first claim relating to the voluntariness of his plea, separate from any claim of ineffective assistance of counsel. In so doing, the court refused to address the petitioner's argument that his assertion of ineffective assistance of counsel sheltered this claim from procedural default. The court also concluded that the petitioner failed to prove that his trial counsel had provided ineffective assistance by failing to ensure that the petitioner's medicated state did not affect his ability to knowingly, voluntarily, and intelligently plead guilty. The petitioner filed a petition for certification to appeal from the habeas court's denial of his petition for a writ of habeas corpus, which the habeas court denied. This appeal followed. We first set forth our standard of review. "Faced with the habeas court's denial of certification to appeal, a petitioner's first burden is to demonstrate that the habeas court's ruling constituted an abuse of discretion." Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). In order to prove an abuse of discretion, the petitioner must show "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., at 616, 646 A.2d 126. "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." Id., at 612, 646 A.2d 126. In considering the merits of the petitioner's underlying claims, we "cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner's constitutional right to effective assistance of counsel is plenary." (Internal quotation marks omitted.) Ricks v. Commissioner of Correction, 98 Conn.App. 497, 502, 909 A.2d 567 (2006), cert. denied, 281 Conn. 907, 916 A.2d 49 (2007). To the extent that the habeas court relies on credibility determinations of witnesses in deciding the issues, this court "must defer to the trier of fact's assessment of the credibility of the witnesses that is made on the basis of its firsthand observations of their conduct, demeanor and attitude." (Internal quotation marks omitted.) State v. Kendrick, 314 Conn. 212, 223, 100 A.3d 821 (2014). When faced with questions of procedural default, "[t]he habeas court's conclusion that the petitioner's sentencing claim was . procedural default [ed] involves a question of law. Our review is therefore plenary." Johnson v. Commissioner of Correction, 285 Conn. 556, 566, 941 A.2d 248 (2008). We turn now to the petitioner's underlying claims. I The petitioner's first claim on appeal is that the habeas court abused its discretion when it denied his petition for certification to appeal from the court's decision that he had procedurally defaulted on his claim that his plea was involuntarily tendered due to his medicated state. Specifically, the petitioner argues that his guilty plea was involuntarily tendered because of his attorney's failure to inquire adequately about his competency to plead guilty. The petitioner argues that because he alleged ineffective assistance of counsel in his response to the respondent's claim of procedural default, the habeas court improperly applied the procedural default rule to this claim rather than addressing its merits. The respondent argues that the petitioner misunderstands the habeas court's ruling and alleges that the court did not conclude that the petitioner procedurally defaulted on his ineffective assistance of counsel claim, but it properly concluded that the petitioner procedurally defaulted on any independent claim directly challenging the voluntariness of his plea and, thus, properly denied the petition for certification to appeal. We agree with the respondent. The following facts are relevant to this claim. On July 21, 2014, the petitioner filed a revised amended petition for writ of habeas corpus alleging, inter alia, the following. In his first count, the petitioner claims "[t]hat at the time of the [p]etitioner's plea, the [p]etitioner was heavily medicated from the medication that he was receiving from the [Department of Correction] . such that he was unable to enter a voluntary, knowing, and competent plea...." In his fourth count, the petitioner claims "[t]hat trial counsel did not seek to determine if the medication that the [p]etitioner was [taking] on the date of his pleas impacted the [p]etitioner's ability to knowingly, voluntarily, and with understanding enter into his guilty pleas...." On July 25, 2014, the respondent filed a return and raised the special defense of procedural default as to any of the petitioner's claims intended to be "a separate due process claim that [his] plea was involuntary, unknowing, or incompetent due to his medicated or mental status...." The respondent claimed that because the petitioner did not raise this issue on direct appeal, nor file a motion to withdraw his plea pursuant to Practice Book § 39-26, he could not raise this claim for the first time in a habeas proceeding. On July 28, 2014, the petitioner filed his reply, in which he alleged that his claims were based on ineffective assistance of counsel and, therefore, were not subject to procedural default. In its memorandum of decision, the habeas court found that "the petitioner's first claim relating to his plea alone [was] subject to procedural default." (Emphasis added.) The court went on to state that "[t]he petitioner has filed no pleading to contest the special defense as to this claim. The court finds that the petitioner has failed to sustain his burden to establish good cause for his failure to raise this claim on direct appeal." The court refused to address the petitioner's argument that his assertion of ineffective assistance of counsel made his claim not susceptible to procedural default. The court later found that the petitioner's fourth claim of ineffective assistance of counsel was without basis on the merits because the petitioner failed to prove that his trial counsel was deficient in failing to inquire further into the petitioner's mental status and medicated state at the time of his plea. The court incorporated those findings into its decision as to the petitioner's first claim. Under the procedural default doctrine, "a claimant may not raise, in a collateral proceeding, claims that he could have made at trial or on direct appeal in the original proceeding," unless he can prove that his default by failure to do so should be excused. Hinds v. Commissioner of Correction, 151 Conn.App. 837, 852, 97 A.3d 986 (2014), aff'd, 321 Conn. 56, 136 A.3d 596 (2016). "When a habeas petitioner has failed to file a motion to withdraw his guilty plea or to challenge the validity of the plea on direct appeal, a challenge to the validity of the plea in a habeas proceeding is subject to procedural default.... A respondent seeking to raise an affirmative defense of procedural default must file a return to the habeas petition responding to the allegations of the petitioner and alleg[ing] any facts in support of any claim of procedural default.... Only after the respondent raises the defense of procedural default in accordance with [Practice Book] § 23-30(b) does the burden shift to the petitioner to allege and prove that the default is excused." (Citations omitted; internal quotation marks omitted.) Crawford v. Commissioner of Correction, 294 Conn. 165, 175-76, 982 A.2d 620 (2009). The petitioner can prove that the default is excused by making "both a showing of cause for his failure to raise the claim and also a showing of actual prejudice." Brewer v. Commissioner of Correction, 162 Conn.App. 8, 17, 130 A.3d 882 (2015). When a petitioner who has not sought to withdraw his plea or challenged it on direct appeal alleges in a habeas proceeding that his guilty plea was tendered as a result of ineffective assistance of counsel, "the court need not apply the cause and prejudice test . in determining whether to grant the habeas petition because application of the two-pronged test in Strickland [v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ], as modified for guilty plea cases by Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), accomplishes the same result.... [I]f a petitioner can prove that his attorney's performance fell below acceptable standards, and that, as a result, he was deprived of a fair trial or appeal, he will necessarily have established a basis for cause and will invariably have demonstrated prejudice." (Citations omitted; internal quotation marks omitted.) Johnson v. Commissioner of Correction, supra, 285 Conn. at 571-72, 941 A.2d 248. This court has since interpreted Johnson to mean that "when a habeas petitioner alleges ineffective assistance of trial counsel in connection with his plea of guilty, his failure to move to withdraw his plea or to challenge his plea on direct appeal will not constitute procedural default." Caban v. Commissioner of Correction, 113 Conn.App. 165, 174, 965 A.2d 601, cert. denied, 292 Conn. 901, 971 A.2d 40 (2009). The petitioner argues that his first claim is not subject to procedural default because in his reply to the respondent's special defense of procedural default, he pleaded that the alleged default resulted from ineffective assistance of counsel. In the habeas court's memorandum of decision, it treated the petitioner's first claim as a separate claim alleging that the petitioner did not enter a voluntary, knowing, and competent guilty plea due to his medicated state, apart from any claim of ineffective assistance of counsel. Accordingly, the habeas court found that only the petitioner's first claim was subject to procedural default. To the extent that the petitioner relies on the claim that his guilty plea was involuntary due to his medicated state, untethered to his claim of ineffective assistance of counsel, the habeas court was correct in its conclusion that the claim is subject to procedural default. This is precisely the type of claim that can, and must, be raised either on direct appeal or by way of a motion to withdraw the plea in order to avoid procedural default. See, e.g., Crawford v. Commissioner of Correction, supra, 294 Conn. 165, 982 A.2d 620. It is undisputed that the petitioner failed to do either, and he offered no evidence of cause for this procedural default. If the petitioner relies on the claim that his plea was involuntarily tendered resulting from his trial counsel's failure to inquire about his medicated state at the time of the plea, the claim would amount to a repetition of his fourth count of ineffective assistance of counsel. The habeas court specifically, and correctly, stated in its memorandum of decision that the petitioner's ineffective assistance of counsel claim was not procedurally defaulted. The court went on to deny that claim on its merits. The petitioner has appealed that decision and we discuss it in part II of this opinion. We conclude that the habeas court correctly determined that the petitioner's first claim, apart from his ineffective assistance of counsel claim, was procedurally defaulted. Thus, the petitioner has failed to show that this claim involves issues that are debatable among jurists of reason, that a court could resolve the issues in a different manner or that the questions are adequate to deserve encouragement to proceed further. Accordingly, the court did not abuse its discretion when it denied the petition for certification to appeal this claim. II The petitioner's second claim on appeal is that the habeas court abused its discretion when it denied his petition for certification to appeal from the court's rejection of his claim that counsel provided ineffective assistance by failing to inquire as to the petitioner's competency to enter a knowing and voluntary plea. Specifically, the petitioner contends that his trial counsel was deficient by failing to investigate whether the petitioner was on the drug Risperdal at the time he entered his guilty plea, and, therefore, whether the petitioner was competent to plead. Additionally, the petitioner contends that his trial counsel was deficient by failing to advise the court that the petitioner was on the drug Risperdal at the time of the plea. The respondent argues that the habeas court correctly concluded that the petitioner failed to demonstrate deficient performance and, thus, properly denied the petition for certification to appeal. We agree with the respondent. The following facts are relevant to this claim. The petitioner's arrest and subsequent conviction stemmed from inculpatory statements he made to the police that both he and his wife had physically abused their four month old daughter. Throughout the pendency of the case, the petitioner experienced bouts of crying which, in part, led the court, Damiani, J., to order that he undergo a competency evaluation. The petitioner was examined by a clinical team, which unanimously determined that he "had the capacity to understand the proceedings pending against him and had the ability to assist in his own defense." The team's report also contained information about the petitioner's use of the drug Risperdal, which had been prescribed to treat a "poorly controlled tic disorder" related to the petitioner's diagnosis of Tourette's Syndrome. In November, 2010, the court, Damiani, J., found the petitioner legally competent to stand trial. The petitioner's trial counsel testified at the habeas trial that the petitioner was "always very conversant" and that he did not notice the petitioner having difficulty remembering conversations. He also testified that, throughout his representation of the petitioner, the petitioner was adamant about taking personal responsibility for what happened to his daughter, insisting that he did not want his wife to be convicted. Because of this, the petitioner's trial counsel thought it best to negotiate a plea for the petitioner rather than to develop a trial strategy. Plea negotiations with the court commenced in November, 2010. Ultimately, the petitioner agreed to the plea bargain proposed by the court, under which he was scheduled to plead guilty on December 2, 2010. The petitioner's trial counsel testified that prior to the petitioner's pleading guilty, he reviewed the plea canvass with the petitioner, who seemed to understand their conversation and to be "articulate" and "more than alert." The petitioner's trial counsel testified that he believed there were no "impediments to [the petitioner's] plea." During the plea canvass, when the court asked the petitioner if he had taken any medication that day, the petitioner responded "No sir, I haven't." The court also asked the petitioner if he was satisfied with his trial counsel's legal representation, to which the petitioner responded "Yes, sir, very satisfied." After the canvass, the court accepted the petitioner's guilty plea on both counts. The petitioner's trial counsel testified that he had no reason to dispute the petitioner's answer to the court's question that he was not then on medication. The habeas court credited the testimony of the petitioner's trial counsel "as to his actions in the representation of the petitioner." The petitioner testified that he began taking Risperdal in 2004 and that he thought he was on the medication at the time of his plea. He testified that throughout his case, he tried to tell his trial counsel about his Risperdal use, but that it seemed like his trial counsel "just wasn't even interested." The petitioner also testified that the Risperdal made him feel like he was in a fog, and that he did not remember his trial counsel ever discussing the plea agreement with him, the trial court's plea canvass on December 2, 2010, or his entry of a guilty plea on that day. The petitioner was shown a transcript of his plea hearing but still testified that he did not remember it. In denying the petitioner's claim of ineffective assistance of counsel for failure to inquire about his mental condition at the time of the plea, the habeas court found the petitioner not credible. The court found that he "testified in a manner that alternated between clear, precise recollection, vague memories and a complete lack of recall, based, in this court's view, on which benefited him most at the time." In making that determination, the court noted that both the competency evaluation in November, 2010, and a different psychiatric evaluation in May, 2010, described the petitioner as "manipulative." The court also credited the findings of the competency evaluators that the petitioner was competent to stand trial. In the end, the court found that the petitioner had failed to present evidence of being " 'overly medicated' " at any point in his criminal proceedings, and that he testified "unconvincingly as to [his alleged] intellectual and memory deficits." The court further credited the testimony of the petitioner's trial counsel that he had no occasion to be concerned with the petitioner's plea or mental state. Lastly, the court credited the petitioner's responses to the court's plea canvass on December 2, 2010, as "compelling evidence of his knowing, voluntary and intelligent guilty" plea. It was on the basis of those findings that the court concluded that the petitioner had failed to establish that his trial counsel's performance was deficient, and, thus, that he had rendered ineffective assistance. "A habeas petitioner can prevail on a constitutional claim of ineffective assistance of counsel [only if he can] establish both (1) deficient performance, and (2) actual prejudice.... For ineffectiveness claims resulting from guilty verdicts, we apply the two-pronged standard set forth in Strickland v. Washington, [supra, 466 U.S. at 687, 104 S.Ct. 2052 ]; Levine v. Manson, 195 Conn. 636, 639-40, 490 A.2d 82 (1985). For effectiveness claims resulting from guilty pleas, we apply the standard set forth in Hill v. Lockhart, [supra, 474 U.S. at 59, 106 S.Ct. 366,] which modified Strickland 's prejudice prong.... "To satisfy the performance prong, the petitioner must show that counsel's representation fell below an objective standard of reasonableness.... A petitioner who accepts counsel's advice to plead guilty has the burden of demonstrating on habeas appeal that the advice was not within the range of competence demanded of attorneys in criminal cases.... The range of competence demanded is reasonably competent, or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law.... Reasonably competent attorneys may advise their clients to plead guilty even if defenses may exist.... A reviewing court must view counsel's conduct with a strong presumption that it falls within the wide range of reasonable professional assistance.... "To satisfy the prejudice prong, the petitioner must show a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.... Reasonable probability does not require the petitioner to show that counsel's deficient conduct more likely than not altered the outcome in the case, but he must establish a probability sufficient to undermine confidence in the outcome.... A reviewing court can find against a petitioner on either ground, whichever is easier." (Internal quotation marks omitted.) Shelton v. Commissioner of Correction, 116 Conn.App. 867, 874-75, 977 A.2d 714, cert. denied, 293 Conn. 936, 981 A.2d 1080 (2009), citing Mock v. Commissioner of Correction, 115 Conn.App. 99, 104-05, 971 A.2d 802, cert. denied, 293 Conn. 918, 979 A.2d 490 (2009). The petitioner claims that his trial counsel rendered ineffective assistance at the time his guilty plea was entered because counsel failed to investigate whether the petitioner was on the drug Risperdal at the time of the plea and whether he was competent to plead. On the basis of our review of the record, we conclude that the facts, as found by the habeas court, were not clearly erroneous, and that its ultimate conclusion that the petitioner's counsel was not ineffective was legally correct. Accordingly, we conclude that the petitioner has failed to show that this claim involves issues that are debatable among jurists of reason, that a court could resolve the issues in a different manner, or that the questions are adequate to deserve encouragement to proceed further. Thus, the habeas court did not abuse its discretion when it denied the petition for certification to appeal this claim. The appeal is dismissed. In this opinion the other judges concurred. The petitioner made an additional argument that this court can and should find that he was prejudiced by his trial counsel's deficient performance, even though the habeas court did not make any factual findings on this issue. Because we are dismissing the appeal on other grounds, we do not reach this argument. See Mock v. Commissioner of Correction, 115 Conn.App. 99, 105, 971 A.2d 802, cert. denied, 293 Conn. 918, 979 A.2d 490 (2009). General Statutes § 53a-59 (a) provides in relevant part: "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 § 53-21(a) provides in relevant part: "Any person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child . shall be guilty of . a class C felony...." The petitioner asserted two other claims of ineffective assistance of trial counsel in his revised amended petition for writ of habeas corpus, both of which were denied by the habeas court. Because he did not pursue either of those claims on appeal, we deem them abandoned. In his brief, the petitioner suggests that we follow the District Court's ruling in Magee v. Romano, 799 F.Supp. 296, 300 (E.D.N.Y.1992), which he claimed held that if a trial attorney's ineffective assistance led to an involuntary guilty plea, and, therefore, waiver of further proceedings, the petitioner should not be procedurally defaulted from raising the claim for the first time in a habeas corpus proceeding. We will not address this argument because we have reached the same result on other grounds. In making this argument, the petitioner urges us to adopt the federal court's analysis in Agan v. Singletary, 12 F.3d 1012, 1019 (11th Cir.1994), which held that the petitioner's attorney was ineffective, in part, because he did not inquire deeper into the petitioner's competency to plead guilty. Agan is distinguishable from the present case and, therefore, we decline to follow it. In Agan, the petitioner, James Agan, refused to submit to a competency examination, and the court stated that "[a]n attorney cannot blindly follow a client's demand that his competency not be challenged." Id., at 1018. The court further relied on the fact that the attorney "made no independent inquiry into Agan's psychiatric background" and that he "ended further inquiry regarding Agan's mental fitness when Agan refused to submit to a psychiatric examination." Id. In the present case, however, the petitioner did submit to a competency evaluation, which provided his attorney with information regarding the petitioner's mental and medical history sufficient to render effective assistance. Therefore, we decline to follow Agan. The respondent contends that the petitioner's claim of ineffective assistance of counsel for failure to advise the court of the petitioner's use of Risperdal at the time of the plea was inadequately briefed and, therefore, is unreviewable. This court previously has determined that if a petitioner asserts a claim in his statement of issues but thereafter devotes to it only "cursory attention in [his] brief without substantive discussion or citation of authorities"; (internal quotation marks omitted) State v. Monahan, 125 Conn.App. 113, 122, 7 A.3d 404 (2010), cert. denied, 299 Conn. 926, 11 A.3d 152 (2011) ; that claim is deemed abandoned and, therefore, is unreviewable. Accordingly, we agree with the respondent that this claim was inadequately briefed and we decline to review this claim.

12486341

In re DANYELLAH S.-C. et al.

In re Danyellah S.-C.

2016-08-02

No. 38710.

698

708

143 A.3d 698

143

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

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

Fastcase

In re DANYELLAH S.-C. et al.

In re DANYELLAH S.-C. et al. No. 38710. Appellate Court of Connecticut. Argued May 9, 2016. Decided Aug. 2, 2016. Matthew C. Eagan, assigned counsel, with whom was Michael S. Taylor, Hartford, assigned counsel, 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). Ellin M. Grenger, for the minor children. BEACH, SHELDON and GRUENDEL, Js. In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79a-12, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court. August 2, 2016, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

4810

30117

GRUENDEL, J. The respondent mother appeals from the judgments of the trial court terminating her parental rights with respect to her four minor children. On appeal, the respondent claims that the court improperly denied her midtrial request to remove her court-appointed counsel. We disagree and, accordingly, affirm the judgments of the trial court. In its oral memorandum of decision, the court found the following facts. The respondent is the mother of four minor children. Prior to the birth of their first child, both the respondent and the father "were involved with the Department of Children and Families (department). . [The respondent] was the subject of ten department referrals as a child. [The respondent] and the father began their troubled relationship in 2002. The department has been involved with them since 2004 for referrals for [their] children's exposure to domestic violence, substance abuse, and criminal activity, as well as inadequate supervision and mental health concerns. "On May 20, 2013, the [petitioner, the Commissioner of Children and Families] filed neglect petitions on behalf of [the minor children] for the above noted concerns.... On March 20, 2014, [the respondent] filed a plea of nolo contendere, and the father failed to appear. The children were adjudicated neglected and placed under protective supervision for six months in [the respondent's] custody. Specific steps were set for [the respondent].... The steps were designed to ameliorate the department's concerns . and to allow for family integrity. "On March 21, 2014, in keeping with her specific steps, [the respondent] was referred to the intensive family preservation program, an in-home service which was essential. [The respondent] missed two consecutive [department] appointments for home visits to discuss intake to the program. The intensive family preservation worker and the department made an unannounced home visit with [the respondent] and were able to schedule an intake appointment for the program. [The respondent] was not home for the scheduled appointment and was nonresponsive to subsequent efforts to engage her in this vital service. "Meanwhile, the father, in contravention to his specific steps to maintain sobriety, tested positive for cocaine.... He was referred to a higher level of drug treatment but was incarcerated on April 28, 2014.... On May 7, 2014, the [petitioner] filed a motion to open and modify disposition seeking commitment of the children. On May 23, 2014, neither parent appeared in court, and the motion was granted. The children were committed to the [custody of the petitioner] and have remained committed since that date. [The respondent] arrived late at court and claimed no knowledge as to the children's location. The children were located, secured and . have remained in the department's care since [that time]. "Specific steps for [the respondent and the father] remained in effect [that] required them in part to advise the department of potential family placement resources. [Their] mutual judgment and concern for their children's well-being were demonstrated by their joint nomination of a paternal uncle as a custodial resource [who] was disqualified shortly thereafter by his incarceration on narcotics charges. "Following the commitment, both parents were given reunification steps to follow, which included the responsibility to maintain contact with [the department], to cooperate with individual counseling and substance abuse evaluation and treatment, to remain sober, to obtain a lawful income and housing, to avoid criminal activity and to visit with the children. Following the removal of the children, [the respondent] disappeared. She resurfaced in an administrative case review meeting held at [the department two months later] on July 23, 2014.... [The respondent] next came to the department's attention when she was incarcerated in Connecticut in October of 2014 on drug related charges. Substance abuse had been an area of significant concern for [the respondent]. [She] reported having prescriptions for multifarious prescription pain killers and thwarted the department's efforts to establish the need for and the credibility of those claims.... [The respondent] agreed to [substance abuse] testing, yet never submitted to a test. Her excuses were myriad, but in essence amounted to an inability to get to [the] testing.... [The respondent] still has not submitted to substance abuse testing and treatment of an adequate nature.... "[The respondent] has no independent stable housing. She is dependent upon the charity of a friend for her housing. She has no identified income. Most significantly, however, is the fact that [the respondent] has only visited with her children two times since they were committed to the department. She does not contact the children through authorized channels. She knows the foster mother, as it is a relative foster placement, and does not contact the children through the foster parent.... "Dr. [Kelly F.] Rogers, [the court-appointed psychological evaluator] noted that [the respondent] has a passive-aggressive streak which expresses itself indirectly in negativism, sarcasm and passive aggression that usually served to worsen her associations, particularly those with authority figures, and that this is a strong pattern quite resistant to change. [The respondent] continually appears late for meetings or does not come at all. She does not cooperate with the department [workers] in terms of responding to them. This is all in keeping with [Rogers'] finding that [the respondent] resists authority figures.... [Rogers] opined that she may meet the criteria for several personality disorders, but at the least a personality disorder not otherwise specified with histrionic borderline narcissistic and passive aggressive traits.... "[The respondent] has not cooperated with . treatment, and the court finds that given her failure to visit [the minor children], her arrest on narcotics charges, her failure to establish a stable income and housing and her lack of cooperation with counseling, the department has established . that it made reasonable efforts to reunify with [the respondent], that [the respondent] is unwilling or unable to benefit from those efforts, that her children were previously found to [have been] neglected and that she has failed to achieve the degree of personal rehabilitation that would encourage the belief that within a reasonable time she could assume a responsible position in the lives of her children. Her two oldest children had special needs, and were in therapy and were failing in school while in the care of [the respondent]. They have improved dramatically since removal from [the respondent's] care. The court has no reasons to believe that these improvements would remain if returned to [the respondent] at any time.... "With respect to [the issue of] abandonment . [the respondent] responded to the commitment of her children by disappearing for a two month period. Since that date, she has not maintained contact with the children and has maintained irregular and inadequate contact with the department. Most importantly, she has visited her children only two times. Despite being noted to be in the area several times, she has not attempted to visit her children through permitted channels.... "[I]mmediately prior to their commitment, the oldest children were exhibiting behavioral and serious educational deficiencies mostly rooted in their extensive truancy. Since being removed from [the respondent's] custody . the children have blossomed in the care of their foster mother. They are doing well academically. They attend school regularly. They are not having behavioral issues and they are both in counseling and thriving.... "The court finds that [the respondent] abandoned them and has demonstrated little or no interest in the children. She certainly is not in a position to provide for their growth, development, well-being, nor is she capable of providing continuity and stability." The court thus found by clear and convincing evidence that termination of the respondent's parental rights was in the best interest of the children. Accordingly, the court rendered judgments terminating her parental rights pursuant to § 17a-112 (j). The respondent does not contest any of those factual findings in this appeal. Rather, her appeal is centered entirely on an exchange that transpired in the middle of trial regarding the potential testimony of her father, J. Approximately halfway through the evidentiary stage of that proceeding, the court took a brief recess at the request of the respondent. When trial resumed, the following colloquy transpired: "The Court: Good afternoon. The court notes the return of those previously present. And there is a new gentleman sitting in the back. Your name, sir? "[J]: I'm the father of [the respondent]. "The Court: Any objection to [J's] presence? "[The Father's Counsel]: We have no objection. "[The Petitioner's Counsel]: As long as he . is not a witness. "The Court: [J], you are expected to be a witness? "[J]: Yes. For-I would like to be in the courtroom at this time. I just want to be present. "The Court: I'm sorry? "[J]: I just want to be present. I want to be a witness for her. "The Court: Oh. Okay. "[J]: Then I'll-"[Catania]: I'm not intending to call him as a witness, Your Honor. I did attempt to speak with him in the lobby and have a conversation. Unless- "[The Respondent]: Your Honor- "The Court: [A]s I said, I don't want you to speak directly to the court. Talk to your attorney. "[The Respondent]: I would- "The Court: If there is something you want to say, please review it with your lawyer first, ma'am. "[The Respondent]: I do not want to have Mr. Catania as my attorney. "The Court: Well, that request is denied. We are almost at the end of trial. I'm not going to remove your counsel. So, thank you, ma'am. You may be seated. And [J] if you expect to be a witness, then I'm going to ask you to sequester yourself and remain in the lobby. "[J]: Yes, sir. "The Court: So- "[J]: Both, Your Honor-both of the attorneys are not calling me as a witness. I want to be a witness on behalf of my daughter. Is that possible? "The Court: Perhaps if [the attorney for the minor children] or the [petitioner] or the father wishes to call you as a witness, but you do not have a right to just insinuate yourself into the process and call yourself a witness. "[J]: That's why I'm asking the court if that's the procedure- "The Court: Not unless one of the attorneys wishes to call you, sir. And if nobody intends to call you and you want to sit in the back, you're free to do so. "[J]: Thank you, Your Honor. "The Court: Okay. Thank you." At that time, J exited the courtroom and Catania continued his cross-examination of a department case worker. J thereafter was not called as a witness to testify by any party, and the respondent did not raise any issue regarding Catania's representation in the four and one-half months that passed between the aforementioned colloquy and the court's November 20, 2015 judgments. Following the termination of her parental rights, the respondent commenced this appeal. Oral argument was held before this court on May 9, 2016. At the behest of the respondent, we subsequently ordered the trial court to articulate the factual and legal basis of its denial of her midtrial request to remove her attorney. In its May 23, 2016 articulation, the court stated that "[t]he factual basis for [its] decision not to inquire as to the reason the [respondent] requested a different attorney was that the court had observed [her] demeanor throughout the trial. [The respondent] and Attorney Catania were in frequent collaboration and communication throughout the trial. Attorney Catania was in the process of a thorough cross-examination of the petitioner's last witness [and] requested a brief recess to discuss further with [the respondent] a Massachusetts service involved with [her]. Upon their return to court, an unknown man entered the courtroom, and identified himself as [the respondent's] father. He expressed his intention to be a witness for [the respondent]. Attorney Catania stated that he had not spoken with this man and did not intend to call him as a witness unless they had an opportunity to speak. [The respondent], in what appeared to the court to be an impetuous decision, and without speaking to Attorney Catania, requested a new lawyer. Her request appeared to be based upon pique rather than any perceived conflict. It was unrelated to the witness then testifying, and would have caused a disruptive delay. Legally, the court was aware that a parent's right to effective assistance of counsel in a termination proceeding is not rooted in the federal or state constitutions.... Attorney Catania was [the respondent's] statutorily appointed counsel since July, 2013, based upon [her] indigence. The court considered that [the respondent] was not entitled to counsel of her own choice, especially as [her] request was in immediate response to a tactical decision by her attorney." (Citation omitted; internal quotation marks omitted.) The respondent thereafter filed a motion for permission to file a supplemental brief in response to that articulation, which this court granted. On appeal, the respondent does not allege that Catania's legal assistance was ineffective in any respect. She nevertheless claims that the court committed reversible error when it denied her midtrial request to remove Catania as her counsel. Specifically, the respondent maintains that, despite the content of that communication and the context in which it arose, the court was obligated to inquire further into the nature of her request. On the facts of this case, we do not agree. I As a preliminary matter, we note that the respondent asks this court to recognize a constitutional right to counsel in termination of parental rights proceedings pursuant to article first, § 10, of our state constitution. Precedent and principles of restraint caution against so doing. Our Supreme Court has recognized that "[i]n Connecticut, a parent who faces the termination of his or her parental rights is entitled, by statute, to the assistance of counsel. General Statutes § 45a-717 (b)." In re Alexander V., 223 Conn. 557, 569, 613 A.2d 780 (1992). The Supreme Court further has held, consistent with that statutory right, that "a parent in a termination of parental rights hearing has the right not only to counsel but to the effective assistance of counsel." State v. Anonymous, 179 Conn. 155, 160, 425 A.2d 939, 943 (1979) ; cf. In re Yasiel R., 317 Conn. 773, 795, 120 A.3d 1188 (2015) (requiring trial court to advise respondent in termination proceeding of, inter alia, "the respondent's right to representation by counsel"); Thiersaint v. Commissioner of Correction, 316 Conn. 89, 148, 111 A.3d 829 (2015) (Palmer, J., dissenting) (noting that "this court has specifically held that state law guarantees the right to the effective assistance of counsel even where it is not required by the federal constitution" and citing State v. Anonymous, supra, at 155, 425 A.2d 939, as example); In re Baby Girl B., 224 Conn. 263, 296, 618 A.2d 1 (1992) noting that parent was "unable to exercise her right to counsel" in termination proceeding "without actual knowledge of the proceedings against her"). Given that firmly established statutory right to the effective assistance of counsel in termination proceedings, we fail to see how the existence of a corresponding state constitutional right alters the analysis of a challenge to the denial of a midtrial motion to remove court-appointed counsel. We also are mindful of our obligation to not "engage in addressing constitutional questions unless their resolution is unavoidable." State v. McCahill, 261 Conn. 492, 501, 811 A.2d 667 (2002) ; see also In re Shanaira C., 297 Conn. 737, 754, 1 A.3d 5 (2010) (appellate courts have basic judicial duty to avoid deciding constitutional issue if nonconstitutional ground exists that will dispose of case); City Recycling, Inc. v. State, 247 Conn. 751, 758, 725 A.2d 937 (1999) (appellate courts "are bound . never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied" [internal quotation marks omitted] ); State v. Cofield, 220 Conn. 38, 49-50, 595 A.2d 1349 (1991) ("[c]onstitutional issues are not considered unless absolutely necessary to the decision of a case" [internal quotation marks omitted] ); cf. Parker v. Los Angeles, 338 U.S. 327, 333, 70 S.Ct. 161, 94 L.Ed. 144 (1949) ("[t]he best teaching of this Court's experience admonishes us not to entertain constitutional questions in advance of the strictest necessity"). The present case is not one in which it is absolutely necessary to decide the merits of the respondent's state constitutional claim. To paraphrase In re Jonathan M., 255 Conn. 208, 227-28, 764 A.2d 739 (2001), even if we were to assume, without deciding, that the respondent had a right under article first, § 10, of the state constitution to the effective assistance of appointed counsel, she still cannot prevail under the applicable legal standard. II We therefore turn our attention to that legal standard. Appellate review of the denial of a request to discharge appointed counsel is governed by the abuse of discretion standard; State v. Gonzalez, 205 Conn. 673, 684, 535 A.2d 345 (1987) ; which requires this court to indulge every reasonable presumption in favor of the correctness of the court's action. In re Glerisbeth C., 162 Conn.App. 273, 283, 130 A.3d 917 (2015), cert. denied, 320 Conn. 921, 132 A.3d 1094 (2016). "There is no unlimited opportunity to obtain alternate counsel.... It is within the trial court's discretion to determine whether a factual basis exists for appointing new counsel.... Moreover, absent a factual record revealing an abuse of that discretion, the court's failure to allow new counsel is not reversible error." (Citations omitted; internal quotation marks omitted.) State v. Drakeford, 202 Conn. 75, 83, 519 A.2d 1194 (1987) ; see also State v. Williams, 102 Conn.App. 168, 205, 926 A.2d 7 (trial court has broad discretion in determining whether circumstances warrant appointment of new counsel or dismissal of existing counsel), cert. denied, 284 Conn. 906, 931 A.2d 267 (2007). The respondent's claim concerns the adequacy of the trial court's response to her midtrial request to remove Catania as her counsel. Although the court "has a responsibility to inquire into and to evaluate carefully all substantial complaints concerning court-appointed counsel"; State v. Robinson, 227 Conn. 711, 726, 631 A.2d 288 (1993) ; our Supreme Court has held that a request to discharge appointed counsel must be accompanied by "a substantial reason" therefor. State v. Drakeford, supra, 202 Conn. at 83, 519 A.2d 1194 ; see also State v. Gonzalez, supra, 205 Conn. at 683, 535 A.2d 345 ("[e]ven if the defendant's repeated complaints regarding counsel are considered an attempt to discharge counsel, the defendant never offered a substantial reason"); In re Isaiah J., 140 Conn.App. 626, 633-34, 59 A.3d 892 (request to remove and replace court-appointed counsel must be supported by substantial reason), cert. denied, 308 Conn. 926, 64 A.3d 333, cert. denied sub nom. Megan J. v. Katz, - U.S. -, 134 S.Ct. 317, 187 L.Ed.2d 224 (2013). When a litigant does not furnish a substantial reason, the court is not obligated to inquire further. State v. Gonzalez, supra, at 685, 535 A.2d 345 ; State v. Drakeford, supra, at 84, 519 A.2d 1194. For that reason, appellate courts reviewing claims assailing the trial court's failure to inquire into a request to discharge counsel "must distinguish between a substantial . request for new counsel pursued in good faith, and one made for insufficient cause...." State v. Drakeford, supra, 202 Conn. at 82, 519 A.2d 1194. "If the [request] at trial . fell short of a seemingly substantial complaint . the trial court need not inquire into the reasons underlying the defendant's dissatisfaction with his attorney." (Emphasis added; internal quotation marks omitted.) State v. Robinson, supra, 227 Conn. at 725, 631 A.2d 288. Gonzalez is instructive. In that case, the defendant at trial uttered a series of complaints regarding his appointed counsel, stating at various times that, " 'I don't want this guy anymore,' 'I don't want to see that guy anymore,' 'I don't want that lawyer either'...." State v. Gonzalez, supra, 205 Conn. at 682 n. 6, 535 A.2d 345. Significantly, those complaints were never accompanied by "a substantial reason" for the discharge of his counsel. Id., at 683, 535 A.2d 345. On appeal, the defendant nonetheless claimed that the trial court was "at the very least required to inquire into [his] request." Id., at 684-85, 535 A.2d 345. The Supreme Court flatly rejected that claim, emphasizing that such an inquiry is necessary only "[w]here a defendant voices a seemingly substantial complaint about counsel...." (Internal quotation marks omitted.) Id., at 685, 535 A.2d 345. Because "[t]he defendant's eruptions at trial . fell short of a 'seemingly substantial complaint,' " the court concluded that "the trial court did not err in failing to inquire into the reasons underlying the defendant's dissatisfaction with his attorney." Id. Unlike the defendant in Gonzalez, who "indicated his displeasure with his attorney" on "numerous instances"; id., at 682, 535 A.2d 345 ; the respondent's request to discharge her counsel here consisted of a single, isolated outburst. Moreover, that request was untethered to any expression of a substantial reason. Because the respondent never offered any reason, let alone a substantial one, for her request to discharge Catania, the trial court was under no compulsion to inquire further into the nature of that request. Id., at 685, 535 A.2d 345. As our Supreme Court explained in Drakeford, a case in which the defendant, like the respondent here, "gave no substantial reason" for his request to remove court-appointed counsel, "[t]he court could have made further inquiry into the matter. Under the totality of the circumstances, however, the court acted well within its discretion" in declining to do so. State v. Drakeford, supra, 202 Conn. at 84, 519 A.2d 1194. With respect to the totality of the circumstances, we further note that "appellate scrutiny of the trial court's inquiry into complaints concerning adequacy of counsel must be tempered by the timing of such complaints." State v. Robinson, supra, 227 Conn. at 725, 631 A.2d 288. The respondent's complaint here arose in the midst of trial. Our courts "look with a jaundiced eye at complaints regarding adequacy of counsel made on the eve of trial, or during the trial itself." Id., at 726, 631 A.2d 288. Accordingly, "[i]n order to work a delay by a last minute discharge of counsel there must exist exceptional circumstances." (Internal quotation marks omitted.) State v. Drakeford, supra, 202 Conn. at 83-84, 519 A.2d 1194. In its May 23, 2016 articulation, the court specifically found that the respondent's midtrial request to discharge Catania "would have caused a disruptive delay." The court also clarified that its response to the request to remove Catania was based on its observations of the respondent's "demeanor throughout the trial," as well as her relationship with Catania, and emphasized that her request to discharge "was in immediate response to a tactical decision by her attorney" not to call her father as a witness. Under Connecticut law, "an exceptional circumstance is more than just [a litigant's] feeling of dissatisfaction" with counsel; State v. Wood, 159 Conn.App. 424, 435, 123 A.3d 111 (2015) ; including dissatisfaction with most tactical decisions, over which "defense counsel has the final word...." Id., at 434, 123 A.3d 111. "Differences of opinion over trial strategy are not unknown, and do not necessarily compel the appointment of new counsel." State v. Drakeford, supra, 202 Conn. at 83, 519 A.2d 1194 ; see also State v. Vega, 259 Conn. 374, 391, 788 A.2d 1221 (disagreement with attorney's strategic and tactical decisions not good cause), cert. denied, 537 U.S. 836, 123 S.Ct. 152, 154 L.Ed.2d 56 (2002). The court found, and the record indicates, that Catania was hesitant to call J as a witness without first having the opportunity to speak with him. Any disagreement with that prudent tactical decision is neither a substantial reason nor an exceptional circumstance that would justify Catania's discharge in the middle of trial. "A court is not required to dismiss an assigned attorney upon a [litigant's] mere whimsical demand...." (Emphasis omitted; internal quotation marks omitted.) State v. Beaulieu, 164 Conn. 620, 629, 325 A.2d 263 (1973). Such is the case here. Because the respondent did not offer a seemingly substantial reason to discharge Catania, and in light of the facts and circumstances of this case, we cannot conclude that the court abused its ample discretion in denying the respondent's midtrial request to remove her court-appointed counsel without further inquiry. The judgments are affirmed. In this opinion the other judges concurred. The court also terminated the parental rights of the children's father, whom we refer to by that designation. Because he is not a party to this appeal, we refer to the respondent mother as the respondent. We also note that, pursuant to Practice Book § 67-13, the attorney for the minor children filed a statement adopting the brief of the petitioner in this appeal. In that statement, the attorney averred that "[t]he children do have a significant interest in this matter, and it is unlikely that a new proceeding would have any other result. Any other outcome would only serve to delay their permanency." Approximately two years prior to trial, the court appointed Attorney Peter Catania as counsel for the respondent due to her indigence. Catania represented the respondent throughout the termination proceedings. The evidentiary portion of the termination proceeding transpired on July 9, 2015. Closing arguments were held two weeks later on July 23, 2015. The court rendered judgments from the bench four months later on November 20, 2015. In her principal appellate brief, the respondent states: "To be clear, the respondent . is not suggesting that trial counsel actually engaged in any behavior that was improper." Cf. In re Isaiah J., 140 Conn.App. 626, 636, 59 A.3d 892 (in addition to challenging court's denial of request to remove court-appointed counsel, respondent claimed "that she received ineffective assistance of counsel"), cert. denied, 308 Conn. 926, 64 A.3d 333, cert. denied sub nom. Megan J. v. Katz, -U.S. -, 134 S.Ct. 317, 187 L.Ed.2d 224 (2013). Article first, § 10, of the constitution of Connecticut provides: "All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay." General Statutes § 45a-717 (b) provides in relevant part: "If a party appears without counsel, the court shall inform such party of the party's right to counsel and upon request, if he or she is unable to pay for counsel, shall appoint counsel to represent such party. No party may waive counsel unless the court has first explained the nature and meaning of a petition for the termination of parental rights...." Notably, the petitioner father in In re Jonathan M., supra, 255 Conn. at 224, 764 A.2d 739, claimed that "he had a constitutional right" under, inter alia, article first, § 10, of the Connecticut constitution "to the effective assistance of counsel throughout the termination proceedings"-the very claim advanced by the respondent in this appeal. Our consideration of the articulation provided by the trial court must be "mindful that, as a reviewing court, [w]e cannot retry the facts or pass upon the credibility of the witnesses." (Internal quotation marks omitted.) In re Gabriella A., 319 Conn. 775, 790, 127 A.3d 948 (2015). In termination of parental rights proceedings, "[i]t is the judge in the courtroom who looks the witnesses in the eye, interprets their body language, listens to the inflections in their voices and otherwise assesses the subtleties that are not conveyed in the cold transcript." (Internal quotation marks omitted.) In re Nevaeh W., 317 Conn. 723, 740, 120 A.3d 1177 (2015). For that reason, "[g]reat weight is given to the judgment of the trial court because of [its] opportunity to observe the parties and the evidence." (Internal quotation marks omitted.) In re Samantha C., 268 Conn. 614, 627, 847 A.2d 883 (2004). The court's May 23, 2016 articulation plainly indicates that its determination that the respondent had not furnished a substantial reason for the removal of counsel was predicated on such observations.

12486827

STATE of Connecticut v. Tauren WILLIAMS-BEY.

State v. Williams-Bey

2016-08-23

No. 37430.

467

490

144 A.3d 467

144

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. No. 37430. Appellate Court of Connecticut. Argued May 26, 2016. Decided Aug. 23, 2016. Heather Clark, New Haven, 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 attorneys, for the appellee (state). LAVINE, BEACH and ALVORD, Js.

12634

81120

LAVINE, J. In recent years, the United States and Connecticut Supreme Courts have made major changes in the jurisprudence relating to juvenile sentencing. The law now requires that juvenile offenders facing life without parole or its functional equivalent are entitled to individual consideration that takes into account the mitigating factors of their youth. This case concerns the important question of where such consideration must be given for juvenile offenders who were sentenced prior to the recent developments in the law. Must it be in the context of a resentencing proceeding, as the defendant claims? Or may it be in the setting of a parole hearing, as the state asserts? We conclude, for the reasons that follow, that a parole hearing provides the class of juveniles under consideration with a constitutionally adequate, pragmatic, and fair opportunity to gain consideration of the mitigating factors of their youth. The defendant, Tauren Williams-Bey, appeals from the trial court's dismissal of his motion to correct an illegal sentence. The defendant claims that the court erred by concluding that it did not have jurisdiction over his motion after determining that his sentence did not violate the eighth amendment to the United States constitution and article first, § 8 and 9, of the constitution of Connecticut. We conclude that the trial court improperly determined that it lacked jurisdiction to consider the defendant's motion, but properly concluded that the defendant's federal and state constitutional rights have not been violated. The defendant's rights have not been violated because, as will be discussed, he will be entitled to have the mitigating factors of his youth considered at a parole hearing pursuant to a recently enacted Connecticut statute and a recently decided United States Supreme Court case. We affirm the conclusion of the trial court as to the defendant's constitutional claims, albeit on alternative grounds. See, e.g., State v. Brown, 242 Conn. 389, 395, 699 A.2d 943 (1997). The form of the judgment is improper and we remand the case with direction to render judgment denying the defendant's motion to correct an illegal sentence. See, e.g., State v. Gemmell, 155 Conn.App. 789, 790, 110 A.3d 1234, cert. denied, 316 Conn. 913, 111 A.3d 886 (2015). The following facts and procedural history are relevant to this appeal. On December 20, 1997, the defendant and two friends jumped out of a van and shot at the victim, killing him. At the time, the defendant was sixteen years old. The state charged the defendant with murder as an accessory, in violation of General Statutes (Rev. to 1997) § 53a-54a and General Statutes § 53a-8, and with conspiracy to commit murder, in violation of General Statutes (Rev. to 1997) § 53a-54a and General Statutes § 53a-48. On January 4, 2000, the defendant pleaded guilty to murder as an accessory in violation of General Statutes (Rev. to 1997) § 53a-54a. The court accepted the parties' waiver of the presentence investigation report and continued the case for sentencing. On February 25, 2000, the court, Clifford, J., sentenced the defendant to thirty-five years in prison. At the time of sentencing, the crime of which the defendant was convicted made him ineligible for parole. General Statutes (Rev. to 1997) § 54-125a (b)(1). If he were to serve the full sentence, the defendant would not be released until he is fifty-two years old. The defendant filed a motion to correct an illegal sentence on December 16, 2013, asserting that his sentence violated the eighth amendment as explicated in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), and Miller v. Alabama, - U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). The defendant filed an amended motion to correct on April 2, 2014. In the amended motion, the defendant claimed that his sentence violated the eighth amendment because "the sentence and the manner in which it is imposed fails to provide for a meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation...." The court, Alexander, J., heard oral argument on the motion on April 2, 2014, and issued a written memorandum of decision on July 29, 2014. At the time, neither State v. Riley, 315 Conn. 637, 110 A.3d 1205 (2015), cert. denied, - U.S. -, 136 S.Ct. 1361, 194 L.Ed.2d 376 (2016), nor Casiano v. Commissioner of Correction, 317 Conn. 52, 115 A.3d 1031 (2015), cert. denied sub nom. Semple v. Casiano, - U.S. -, 136 S.Ct. 1364, 194 L.Ed.2d 376 (2016), Connecticut's leading cases on juvenile sentencing, had been decided. Riley and Casiano applied Miller retroactively to discretionary life without parole sentences and term of years sentences that are the functional equivalent of life sentences. The trial court concluded that because the defendant was not serving a mandatory life without parole sentence, Graham and Miller were inapplicable. It dismissed the motion, concluding that "the defendant's case does not fall within the narrow confines of Graham or Miller, and the relief sought exceeds the jurisdiction of this court." We conclude that the defendant's sentence does not violate the eighth amendment as interpreted by Miller v. Alabama, supra, 132 S.Ct. at 2469. Furthermore, we conclude that even if the sentence violated the eighth amendment pursuant to Miller, in light of the United States Supreme Court's decision in Montgomery v. Louisiana, - U.S. -, 136 S.Ct. 718, 736, 193 L.Ed.2d 599 (2016), which decided that conferring parole eligibility on a juvenile offender is a constitutionally adequate remedy for a sentence that violates Miller's teachings upon retroactive application, and the fact that the defendant will be parole eligible under § 1 of No. 15-84 of the 2015 Public Acts (Public Act 15-84), codified at General Statutes § 54-125a (f), the defendant and those similarly situated have been provided with a constitutionally adequate remedy. In reaching this conclusion we address (1) the recent changes in the law regarding juvenile sentencing, (2) the trial court's jurisdiction over the motion to correct, (3) whether, assuming the defendant's thirty-five year without parole sentence violated the constitutional principles defined in Miller, his eligibility for parole under § 54-125a (f), rather than resentencing, is a constitutionally adequate remedy under the eighth amendment to the United States constitution; and (4) whether parole eligibility, rather than resentencing, is a constitutionally adequate remedy under the constitution of Connecticut. Due to the somewhat complex nature of the issues presented, a detailed analysis is required. I LAW REGARDING JUVENILE SENTENCING We first discuss the law regarding juvenile sentencing, as the law in this rapidly evolving area has changed since the defendant filed his motion to correct. The eighth amendment of the United States constitution provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." This provision is applicable to the states through the due process clause of the fourteenth amendment. See Furman v. Georgia, 408 U.S. 238, 239-40, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). In Miller, the United States Supreme Court held that sentencing schemes imposing mandatory life without parole sentences on juveniles convicted of homicide offenses violate the eighth amendment. Miller v. Alabama, supra, 132 S.Ct. at 2469. In Graham v. Florida, supra, 560 U.S. at 74, 130 S.Ct. 2011 the court had determined that imposing mandatory sentences of life imprisonment without the possibility of parole on juvenile offenders convicted of nonhomicide crimes likewise constitutes cruel and unusual punishment. Specifically, Miller requires that prior to sentencing juveniles to life without parole, a judicial authority must "take into account how children are different [from adults], and how those differences counsel against irrevocably sentencing them to a lifetime in prison." Miller v. Alabama, supra, at 2469. Thus, juvenile offenders facing life without the possibility of parole are entitled to an individualized sentencing that considers the mitigating factors of their youth. Our Supreme Court has determined that "the holding in Miller implicates not only mandatory sentencing schemes, but also discretionary sentencing schemes that permit a life sentence without parole for a juvenile offender but do not mandate consideration of Miller 's mitigating factors." Casiano v. Commissioner of Correction, supra, 317 Conn. at 72, 115 A.3d 1031. Thus, in Connecticut, Miller applies to discretionary sentences and term of years sentences that are functionally equivalent to life without parole. Our Supreme Court has addressed what constitutes a functional life without parole sentence. In State v. Riley, supra, 315 Conn. at 641, 110 A.3d 1205, our Supreme Court concluded that an aggregate sentence of 100 years without parole imposed on a juvenile offender violates Miller, and remanded the case for resentencing with consideration of the factors identified in Miller. Our Supreme Court has concluded that Miller applies in both direct and collateral review sentencing appeals. See id. (direct appeal); Casiano v. Commissioner of Correction, supra, at 54-55, 115 A.3d 1031 (habeas appeal). The defendant in Casiano, whose case was on collateral review, was sentenced to fifty years without parole. In reaching its conclusion that a sentence of fifty years without parole violates Miller, the court rejected the "notion that, in order for a sentence to be deemed life imprisonment, it must continue until the literal end of one's life." (Internal quotation marks omitted.) Casiano v. Commissioner of Correction, supra, at 73, 75, 115 A.3d 1031. The court remanded the case for resentencing. Riley and Casiano also dealt with claims brought under Graham v. Florida, supra, 560 U.S. at 48, 130 S.Ct. 2011. As our Supreme Court has explained: "Graham precludes the [judicial authority] from determining at the outset that a juvenile nonhomicide offender is beyond rehabilitation, [and] thus requir[es] that such offenders be afforded a meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation if sentenced to life imprisonment." State v. Riley, supra, 315 Conn. at 661, 110 A.3d 1205. Because Graham specifically applied to nonhomicide offenses, our Supreme Court in Riley declined to consider that defendant's Graham claim that he was entitled to a "second look." Id., at 663, 110 A.3d 1205. In Riley, which involved a direct appeal, our Supreme Court concluded that the Graham claim was not ripe, and that legislation regarding the " 'means and mechanisms for compliance' with the dictates of Graham " was pending in our legislature. Id., at 662, 110 A.3d 1205. In Casiano, our Supreme Court declined to consider the habeas petitioner's Graham claim and deferred to the legislature, stating that it had "every reason to expect that [its] decisions in Riley and [Casiano ] will prompt our legislature to renew earlier efforts to address the implications of the [United States] Supreme Court's decisions in Graham and Miller. " (Emphasis added.) Casiano v. Commissioner of Correction, supra, 317 Conn. at 79, 115 A.3d 1031. There have been two extremely significant changes in the law regarding juvenile sentencing at the state and federal level since our Supreme Court decided Riley and Casiano: our legislature's enactment of Public Act 15-84 and the United States Supreme Court's decision in Montgomery v. Louisiana, supra, 136 S.Ct. at 718. On October 1, 2015, Public Act 15-84, codified in part at § 54-91g and 54-125a (f), which was entitled "An Act Concerning Lengthy Sentences for Crimes Committed by a Child or Youth And the Sentencing of a Child or Youth Convicted of Certain Felony Offenses," became effective. This public act was our legislature's direct response to Miller, Graham, Riley, and Casiano. See, e.g., 58 S. Proc., Pt. 8, 2015 Sess., p. 2644, remarks of Senator John A. Kissel. It provides parole eligibility for juveniles sentenced to greater than ten years incarceration prior to Miller and Graham, and also provides prospective sentencing procedures that bring Connecticut into compliance with the requirements of Graham and Miller going forward. Under § 54-125a (f), a juvenile offender serving a sentence of greater than ten years incarceration on or after October 1, 2015, will be parole eligible. If the sentence is fifty years incarceration or less, the juvenile becomes parole eligible after serving 60 percent of his or her sentence, or twelve years, whichever is greater. If the sentence is greater than fifty years, the juvenile offender becomes parole eligible after serving thirty years. The statute also requires the parole board to consider whether "such person has demonstrated substantial rehabilitation since the date such crime or crimes were committed considering such person's character, background and history, as demonstrated by factors, including, but not limited to . the age and circumstances of such person as of the date of the commission of the crime or crimes, whether such person has demonstrated remorse and increased maturity since the date of the commission of the crime or crimes . obstacles that such person may have faced as a child or youth in the adult correctional system, the opportunities for rehabilitation in the adult correctional system and the overall degree of such person's rehabilitation considering the nature and circumstances of the crime or crimes. " (Emphasis added.) General Statutes § 54-125a (f)(4)(C). These criteria substantially encompass the mitigating factors of youth referenced in Miller and Riley. See footnote 4 of this opinion. Furthermore, the statute ensures that indigent juvenile offenders will have the right to counsel in obtaining, in the terminology of Graham, a "meaningful opportunity to obtain release." Graham v. Florida, supra, 560 U.S. at 75, 130 S.Ct. 2011. Overall, the legislature not only gave Miller retroactive application, but also effectively eliminated life without the possibility of parole, even as a discretionary sentence, for juvenile offenders in Connecticut. Also of great significance is the fact that the United States Supreme Court has substantially refined its holding in Miller since our Supreme Court decided Riley and Casiano. In Montgomery v. Louisiana, supra, 136 S.Ct. at 718, decided on January 25, 2016, the United States Supreme Court held that Miller applies retroactively upon collateral review to all juvenile offenders serving mandatory life without parole sentences because Miller announced a substantive rule of constitutional law. Id., at 734. The court also recognized that the substantive rule in Miller had procedural components regarding the factors that the judicial authority must consider. It stated that "Miller requires [the judicial authority] to consider a juvenile offender's youth and attendant characteristics before determining that life without parole is a proportionate sentence." Id. The court noted that "[t]he foundation stone for Miller ' s analysis was [the] Court's line of precedent holding certain punishments disproportionate when applied to juveniles." (Internal quotation marks omitted.) Id., at 732. The court reiterated that because of children's decreased culpability and greater ability to reform, "Miller recognized that the distinctive attributes of youth diminish the penological justifications for imposing life without parole on juvenile offenders." (Internal quotation marks omitted.) Id., at 733. "Miller, then, did more than require [the judicial authority] to consider a juvenile offender's youth before imposing life without parole; it established that the penological justifications for life without parole collapse in light of the distinctive attributes of youth." (Internal quotation marks omitted.) Id., at 734. The United States Supreme Court, however, also recognized in Montgomery the practical limitations in remedying sentences that violated Miller upon its retroactive application. Juvenile offenders whose sentences violate Miller upon retroactive application did not have the opportunity to demonstrate the mitigating factors of youth at the time of sentencing. The court emphasized that this violation of Miller could be remedied by affording those juvenile offenders parole eligibility, thus providing, in the context of Graham, a meaningful "opportunity for release...." Id., at 736. The court also emphasized that "[g]iving Miller retroactive effect . does not require States to relitigate sentences, let alone convictions, in every case where a juvenile offender received mandatory life without parole. A State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them. See, e.g., Wyo. Stat. Ann. § 6-10-301(c) (2013) (juvenile homicide offenders eligible for parole after [twenty-five] years). Allowing those offenders to be considered for parole ensures that juveniles whose crimes reflected only transient immaturity-and who have since matured-will not be forced to serve a disproportionate sentence in violation of the Eighth Amendment. "Extending parole eligibility to juvenile offenders does not impose an onerous burden on the States, nor does it disturb the finality of state convictions. Those prisoners who have shown an inability to reform will continue to serve life sentences. The opportunity for release will be afforded to those who demonstrate the truth of Miller 's central intuition-that children who commit even heinous crimes are capable of change." (Emphasis added.) Montgomery v. Louisiana, supra, 136 S.Ct. at 736. It is within this legal framework that we address the defendant's specific claims. II JURISDICTION We first address the issue of whether the trial court had jurisdiction over the defendant's motion to correct an illegal sentence. The trial court dismissed the defendant's motion to correct for lack of jurisdiction. The defendant appealed, claiming (1) that the trial court erred in concluding that it lacked jurisdiction to consider his Miller claim; (2) that the trial court erred in concluding that it lacked jurisdiction to consider his Graham claim; and (3) that the court erroneously concluded that the defendant's sentence did not violate the eighth amendment and the constitution of Connecticut. We agree that the trial court erred in concluding that it lacked jurisdiction. "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...." (Internal quotation marks omitted.) Ajadi v. Commissioner of Correction, 280 Conn. 514, 533, 911 A.2d 712 (2006). "A determination of whether the trial court has jurisdiction to consider a motion to correct an illegal sentence filed pursuant to Practice Book § 43-22 presents a question of law, and, therefore, our review is plenary." State v. Henderson, 130 Conn.App. 435, 443, 24 A.3d 35 (2011), appeal dismissed, 308 Conn. 702, 66 A.3d 847 (2013) (certification improvidently granted). Practice Book § 43-22 provides: "The judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner." "An illegal sentence is essentially one which either exceeds the relevant statutory maximum limits, violates a defendant's right against double jeopardy, is ambiguous, or is inherently contradictory.... Sentences imposed in an illegal manner have been defined as being within the relevant statutory limits but . imposed in a way which violates the defendant's right . to be addressed personally at sentencing and to speak in mitigation of punishment . or his right to be sentenced by a judge relying on accurate information or considerations solely in the record, or his right that the government keep its plea agreement promises...." State v. Logan, 160 Conn.App. 282, 287, 125 A.3d 581 (2015), cert. denied, 321 Conn. 906, 135 A.3d 279 (2016). The trial court concluded that it lacked jurisdiction because, at the time, Miller and Graham did not clearly apply to lengthy term of years sentences, and "the relief sought exceeds the jurisdiction of this court." In reviewing the defendant's pleadings, however, the motion challenged the manner in which the sentence was imposed, namely, that the court did not consider the Miller factors during sentencing and whether the defendant was entitled to a later meaningful opportunity for release. Because the motion to correct challenged the manner in which the sentence was imposed, the defendant's claim was properly raised by a motion to correct pursuant to Practice Book § 43-22. See State v. Bozelko, 154 Conn.App. 750, 758-59, 108 A.3d 262 (2015) (allegations of procedural violations in sentencing properly raised in motion to correct pursuant to Practice Book § 43-22 ). The court's conclusion that it could not provide the defendant a remedy did not implicate the court's authority to determine whether the sentence had been imposed in an illegal manner. It is clear from the trial court's memorandum of decision, however, that the court, prior to dismissing the motion, considered the merits of the defendant's Miller and Graham claims, and concluded that the defendant's sentence was not illegal. In parts III and IV of this opinion, we address why the trial court properly concluded that the defendant's sentence was not illegal, albeit for a different reason than the trial court. "[An appellate court] can sustain a right decision although it may have been placed on a wrong ground." (Internal quotation marks omitted.) LaBow v. LaBow, 69 Conn.App. 760, 761 n. 2, 796 A.2d 592, cert. denied, 261 Conn. 903, 802 A.2d 853 (2002). Accordingly, we conclude that the trial court did not lack jurisdiction over the defendant's motion to correct an illegal sentence and that the proper disposition was for the court to deny, rather than to dismiss, the defendant's motion to correct. III FEDERAL CONSTITUTIONAL CLAIM We next address the defendant's claim that his sentence of thirty-five years imprisonment violates the eighth amendment of the United States constitution because it was imposed without consideration of the factors listed in Miller v. Alabama, supra, 132 S.Ct. at 2455. We note that, pursuant to § 54-125a (f), which the legislature enacted after the defendant filed the present appeal, the defendant will be parole eligible after serving 60 percent of his sentence, which is twenty-one years. Thus, the actual issue before this court is whether parole eligibility is a constitutionally adequate remedy if the imposition of the defendant's thirty-five year sentence without parole required the procedures set forth in Miller. The defendant asserts that, notwithstanding that he will be parole eligible under § 54-125a (f), his case must be remanded for resentencing with consideration of the Miller factors as our Supreme Court ordered in Riley and Casiano. He asserts that parole eligibility is a constitutionally inadequate remedy because (1) the language in Montgomery that parole eligibility is constitutionally adequate to remedy a Miller violation is dicta, and (2) Montgomery is at odds with our own Supreme Court's holdings in Riley and Casiano and our legislature's intent in enacting Public Act 15-84. We conclude that, for juvenile offenders who were entitled to be, but were not, sentenced with consideration of the mitigating factors of youth as required by Miller, § 54-125a (f) offers a constitutionally adequate remedy under the eighth amendment to those who qualify for parole under its provisions. Our review of the defendant's constitutional claims is plenary. See State v. Long, 301 Conn. 216, 236, 19 A.3d 1242, cert. denied, - U.S. -, 132 S.Ct. 827, 181 L.Ed.2d 535 (2011). A We first address the defendant's claim that the United States Supreme Court's statement that parole eligibility will remedy a Miller violation is dicta, and, regardless, is at odds with our Supreme Court's rationale regarding Miller as set forth in State v. Riley, supra, 315 Conn. at 637, 110 A.3d 1205, and Casiano v. Commissioner of Correction, supra, 317 Conn. at 52, 115 A.3d 1031. We are not persuaded. Black's Law Dictionary (9th Ed. 2009) defines "obiter dictum" as "[a] judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential...." See also Remax Right Choice v. Aryeh, 100 Conn.App. 373, 378, 918 A.2d 976 (2007) (statements by court that are not germane to holding are dicta and not binding precedent). Dicta of the United States Supreme Court, however, is persuasive authority. See United States v. Dorcely, 454 F.3d 366, 375 (D.C.Cir.) ("carefully considered language of the [United States] Supreme Court, even if technically dictum, generally must be treated as authoritative" [internal quotation marks omitted] ), cert. denied, 549 U.S. 1055, 127 S.Ct. 691, 166 L.Ed.2d 518 (2006). This is especially so in this case, in which we consider a federal constitutional claim. See State v. Kimbro, 197 Conn. 219, 235, 496 A.2d 498 (1985) ("we recognize, as we must, the authority of the United States Supreme Court to act as the final arbiter of controversies arising under the United States constitution"), overruled in part on other grounds by State v. Barton, 219 Conn. 529, 544, 594 A.2d 917 (1991). It is true that the Supreme Court granted certiorari in Montgomery to determine only whether the court had jurisdiction over the defendant's claim and whether Miller applied retroactively. Montgomery v. Louisiana, supra, 136 S.Ct. at 725, 727. The court, though, had to have recognized that Miller 's retroactive application would potentially affect thousands of cases across several states and that the logical extension of its holding would require state legislatures and courts to fashion a constitutionally adequate remedy for sentences that violated Miller. It thus is illogical to categorize Montgomery 's conclusion that Miller applies retroactively as the holding of the court, but its pronouncement of a constitutionally adequate remedy in light of Miller 's retroactive application as not being germane to that holding, and, thus, mere dicta. We do not believe that the United States Supreme Court would so glibly identify a constitutionally adequate remedy under the eighth amendment. Moreover, as noted, the court in Montgomery stated unequivocally that "[a] State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them." Montgomery v. Louisiana, supra, at 736. The court could hardly have been clearer. We conclude that parole eligibility is an adequate remedy for sentences that violated Miller as applied retroactively. B Nevertheless, the defendant suggests that this court cannot follow Montgomery regarding parole eligibility as a constitutionally adequate remedy for a Miller violation because, in doing so, we would implicitly be overruling our own Supreme Court. The defendant argues that because Riley and Casiano treated the claims raised under Miller and Graham as distinct claims, we are required to reject Montgomery to the extent that it concludes that providing a "meaningful opportunity to obtain release" under Graham, in this case parole eligibility, will remedy a Miller violation. He thus asserts that he is constitutionally entitled to be resentenced like the defendants in Riley and Casiano. We find this argument to be convoluted and reject it. Although our Supreme Court remanded Riley and Casiano for resentencing pursuant to Miller, at the time it did so, Montgomery had not yet been decided. In other words, Montgomery significantly changed the legal landscape under which Riley and Casiano were decided. In Riley and Casiano, our Supreme Court did not have the opportunity to consider parole eligibility as a remedy pursuant to the eighth amendment for sentences already imposed that violated Miller. Nothing in Riley or Casiano remotely suggests, however, that in light of the subsequent passage of § 54-125a (f) and the United States Supreme Court's decision in Montgomery, parole eligibility is not a constitutionally adequate remedy for Connecticut juvenile offenders whose sentences may have violated Miller. It is noteworthy that our Supreme Court declined to extend Miller to apply to sentences of less than fifty years and stated that it had "every reason to expect that [its] decisions in Riley and [Casiano ] will prompt our legislature to renew earlier efforts to address the implications of the Supreme Court's decisions in Graham and Miller. " Emphasis added.) Casiano v. Commissioner of Correction, supra, 317 Conn. at 79, 115 A.3d 1031. Our legislature has now implemented such a remedy. Our conclusion that parole eligibility provides a constitutionally adequate remedy under the eighth amendment to sentences that may have violated Miller does not disturb or contradict the holdings in Riley or Casiano. Riley and Casiano make clear that juvenile offenders whose sentences violated Miller are entitled to an individualized consideration of the mitigating factors of youth and their effect on a juvenile's criminal behavior. The United States Supreme Court in Montgomery clarified that this individualized consideration can occur at a parole hearing, and § 54-125a (f) clearly provides this opportunity. The United States Supreme Court is the ultimate authority on the requirements of the federal constitution, and has emphasized that parole eligibility is a constitutionally adequate remedy for sentences that violate Miller in light of that case's retroactive application. IV STATE CONSTITUTIONAL CLAIM The defendant also contends that this court should hold that, even if parole eligibility is adequate under the federal constitution, it does not provide an adequate remedy under the state constitution. The defendant argues that, under the Connecticut constitution, the only remedy for sentences imposed in violation of Miller is resentencing. The following legal principles are relevant to this claim. "It is well established that federal constitutional law establishes a minimum national standard for the exercise of individual rights and does not inhibit state governments from affording higher levels of protection for such rights." (Internal quotation marks omitted.) State v. Ross, 230 Conn. 183, 247, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S.Ct. 1133, 130 L.Ed.2d 1095 (1995). In several cases, our Supreme Court has concluded that "the state constitution provides broader protection of individual rights than does the federal constitution." (Internal quotation marks omitted.) Id., at 248, 646 A.2d 1318. "It is by now well established that the constitution of Connecticut prohibits cruel and unusual punishments under the auspices of the dual due process provisions contained in article first, § 8 and 9. Those due process protections take as their hallmark principles of fundamental fairness rooted in our state's unique common law, statutory, and constitutional traditions.... Although neither provision of the state constitution expressly references cruel or unusual punishments, it is settled constitutional doctrine that both of our due process clauses prohibit governmental infliction of cruel and unusual punishments." (Citations omitted; footnote omitted.) State v. Santiago, 318 Conn. 1, 17-18, 122 A.3d 1 (2015). We must determine whether, under these sections of the state constitution, parole eligibility under § 54-125a (f) is a constitutionally adequate remedy for sentences that were imposed in violation of Miller. We conclude that it is. "In order to construe the contours of the state constitution and reach reasoned and principled results, the following tools of analysis should be considered to the extent applicable: (1) the textual approach . (2) holdings and dicta of [our Supreme Court], and the Appellate Court . (3) federal precedent . (4) sister state decisions or sibling approach . (5) the historical approach, including the historical constitutional setting and the debates of the framers . and (6) economic/sociological considerations." (Citations omitted; emphasis omitted.) State v. Geisler, 222 Conn. 672, 685, 610 A.2d 1225 (1992). In regard to the first Geisler factor, the textual approach is neutral. Article first, § 8 and 9, of the Connecticut constitution do not contain any language specifically applying to juveniles. As to the second Geisler factor, we have already addressed the relevant Connecticut precedents on juvenile sentencing, namely, Riley, Casiano, Taylor G., and Logan. See part I of this opinion. As noted, Riley and Casiano expanded the holdings of Graham and Miller under Connecticut law to apply to discretionary life sentences and de facto life sentences. That our Supreme Court has expanded upon Miller in previous cases does not provide, in and of itself, a principled reason for us to further expand the requirements of that case under the state constitution in the present case. Our Supreme Court has had no occasion to consider the remedy of parole eligibility because § 54-125a (f) had not yet been enacted. As we have noted, we consider it significant that our Supreme Court in Casiano stated that it expected our legislature to enact an appropriate remedy to respond to the requirements of Graham, Miller, Riley, and Casiano. The legislature has since implemented a remedy. Thus, we believe that our Supreme Court's precedent weighs against expanding the state constitution to require resentencing. Requiring resentencing under the state constitution, even though parole eligibility is adequate under the federal constitution, would seem to undermine the very legislative response that our Supreme Court contemplated in Casiano. We next address the third Geisler factor, federal precedent. The defendant asserts that federal precedent supports his claim and cites to United States v. Pete, 819 F.3d 1121, 1126, 1133-34 (9th Cir.2016), in which the United States Court of Appeals for the Ninth Circuit, after Montgomery, remanded the case to the District Court for a second resentencing because the District Court had abused its discretion in declining to appoint an expert to aid the defendant in presenting mitigating evidence at his first resentencing after Miller. The defendant was serving a mandatory life without parole sentence pursuant to federal statute for a murder he committed in 2002 at the age of sixteen. Id., at 1124, 1126. The Ninth Circuit concluded that the refusal to appoint an expert was an abuse of discretion, vacated the sentence, and remanded the case for resentencing. Id., at 1133-34. There is no reference in Pete to the remedy of parole eligibility because "[t]he Sentencing Reform Act of 1984 abolished all forms of federal parole for offenses committed after November 1, 1987." Rich v. Maranville, 369 F.3d 83, 85 n. 1 (2d Cir.) cert. denied sub nom. Rich v. Hatin, 543 U.S. 913, 125 S.Ct. 233, 160 L.Ed.2d 193 (2004). Pete therefore is not persuasive authority upon which this court, in light of the defendant's parole eligibility, should expand Miller and Graham under the constitution of Connecticut to require resentencing for juvenile offenders in the defendant's circumstances. In regard to decisions from sister states, the trend, though not definitive, appears to be that in states that have enacted a statute providing parole eligibility for juveniles whose life without parole and functional equivalent sentences were imposed without consideration of Miller, courts have concluded that parole eligibility is constitutionally adequate to remedy a Miller violation. For example, the California Supreme Court recently held, in a direct appeal, that the claims of juvenile offenders whose mandatory de facto life sentences violate Miller are moot because those juvenile offenders are now parole eligible under a recently enacted statute. People v. Franklin, 63 Cal.4th 261, 370 P.3d 1053, 202 Cal.Rptr.3d 496 (2016). In Franklin, the defendant was convicted of murder as a juvenile and was serving a mandatory fifty year to life sentence. Id., at 268, 202 Cal.Rptr.3d 496, 370 P.3d 1053. After the defendant was sentenced but before the Montgomery decision, the California legislature enacted a statute conferring parole on juvenile offenders and explicitly recognized that the purpose of the legislation was "to bring juvenile sentencing into conformity with Graham [and] Miller ." Id., at 277, 202 Cal.Rptr.3d 496, 370 P.3d 1053. Under this statute, the defendant in Franklin is entitled to a parole hearing after serving twenty-five years in prison. Id. The court stated that "[the defendant] is now serving a life sentence that includes a meaningful opportunity for release during his 25th year of incarceration. Such a sentence is neither [life without parole] nor its functional equivalent. Because [the defendant ] is not serving [a life without parole ] sentence or its functional equivalent, no Miller claim arises here. The Legislature's enactment of [the statute ] has rendered moot [the defendant's ] challenge to his original sentence under Miller. " Emphasis added.) Id., at 279-80, 202 Cal.Rptr.3d 496, 370 P.3d 1053. The remedy under § 54-125a (f) is similar to the remedy provided by the California statute. We find the California Supreme Court's analysis persuasive in our consideration of the present case. The defendant in the present case will be eligible for parole at approximately the age of thirty-nine. After the enactment of § 54-125a (f), the defendant is not serving a life without parole sentence or its functional equivalent. The defendant in his supplemental brief to this court asserts that sister state precedent supports his position that parole eligibility is constitutionally inadequate as a remedy for a Miller violation. He cites to State v. Zarate, Indictment No. 09-02-0062, 2016 WL 1079462, *1 (N.J.App.Div. March 21, 2016), in which the juvenile offender was sentenced in 2009 to a "life sentence carrying a mandatory parole ineligibility period of 63.75 years" pursuant to New Jersey's "No Early Release Act...." The defendant in that case would not be eligible for parole until 2069, at which time he would be seventy-eight years and eight months old. State v. Zarate, supra, 2016 WL at 1079462, *2. The court determined that a mandatory parole ineligibility period of 63.75 years is a de facto life sentence and remanded the case to the trial court to reconsider the defendant's sentence. State v. Zarate, supra, 2016 WL at 1079462, *15. Zarate is not persuasive authority that parole eligibility, as constituted under § 54-125a (f), is not a constitutionally adequate remedy and that resentencing of the defendant in the present case is required. First, the parole ineligibility period of 63.75 years exceeds what our legislature in General Statutes § 53a-35b has defined as a life sentence (sixty years), and what our Supreme Court concluded in Casiano was a de facto life sentence for juvenile offenders (fifty years). Section 54-125a (f) provides a maximum parole ineligibility period of thirty years for a juvenile offender. Thus, assuming a juvenile offender was sentenced just before the age of eighteen to a term of years sentence exceeding fifty years, that juvenile offender would be parole eligible, at the latest, when he or she is approximately forty-eight years of age. This is far different from Zarate, in which the defendant was sentenced pursuant to a pre-Miller state statute under which he would not be parole eligible until he was the age of approximately seventy-nine. Cf. State v. Tyson, Indictment No. 85-06-2616, 2016 WL 483527, *2 (N.J.App.Div. February 9, 2016) (sentence of life with parole eligibility after thirty years on juvenile offender does not violate eighth amendment). Section 54-125a (f) was enacted in direct response to the requirements of Graham, Miller, Riley, and Casiano, and requires that a juvenile offender serve, at most, thirty years without parole eligibility. The defendant is correct that, after Montgomery, some courts have remanded cases for resentencing. This is especially true in jurisdictions that do not have parole or have limited parole eligibility for juvenile offenders sentenced prior to Miller. See Atwell v. State, 197 So.3d 1040, 1042, 2016 WL 3010795, *2 (Fla.2016) (remanding for resentencing because juvenile defendant would not be parole eligible pursuant to pre-Miller statute until 2130 and "[r]ather than offer[ing] parole as a means of complying with the principles . [in Miller and Graham ], the Florida Legislature chose instead to enact a wholly new and distinct sentencing framework for juvenile offenders, offering term-of-years sentencing options for trial courts and providing for subsequent judicial review of lengthy sentences" [emphasis added] ). We are unpersuaded, however, that such cases support the proposition that remanding for resentencing is constitutionally required even after a state legislature has enacted a statute specifically to offer parole eligibility to defendants whose sentences now would be held to violate Miller. The fifth Geisler factor, the historical approach, in theory, arguably weighs against the defendant. The state, quoting State v. Jose C., Superior Court, judicial district of New Haven, Docket No. CR-6421185, 1996 WL 165549 (March 21, 1996) (16 Conn. L. Rptr. 419, 425 ), aff'd sub nom. State v. Angel C., 245 Conn. 93, 715 A.2d 652 (1998), points out that "[a]t the time of the adoption of its 1818 constitution, Connecticut followed the common law and treated fourteen and fifteen year olds as adults when charged with a felony offense. It was not until 1921 that Connecticut established by statute a juvenile justice system." (Internal quotation marks omitted.) This historical consideration, however, offers no insight into the specific question of whether the state constitution mandates the resentencing of juvenile offenders whose sentences violate Miller upon retroactive application. The sixth Geisler factor involves consideration of the contemporary understandings of applicable economic and sociological norms. In regard to sociological considerations, the laws of Connecticut have changed in several areas throughout our state's history to provide special protections to juveniles. Section 54-125a (f) specifically confers special protection on juveniles, as it applies only to those who were under the age of eighteen at the time they committed their offenses. This factor does not support the defendant's assertion that the remedy the statute provides is not constitutionally adequate; it was specifically enacted by the legislature to respond to Miller and Graham by providing increased parole eligibility to juvenile offenders. Because of the unique circumstances of this case, we also note the practical challenges that would be inherent in requiring resentencing in these circumstances. Section 54-91g provides an extensive list of factors that sentencing courts must consider post-Miller when a juvenile offender is convicted of a class A or B felony. This section mandates consideration of "the defendant's age at the time of the offense, the hallmark features of adolescence, and any scientific and psychological evidence showing the differences between a child's brain development and an adult's brain development...." General Statutes § 54-91g (a)(1). Furthermore, the statute ensures that the sentencing court will have this information before it prior to sentencing, as the statute prohibits the waiver of any presentence investigation or report. General Statutes § 54-91g (b). In the present case, as a practical matter, it would be exceedingly difficult for a sentencing court to retroactively make the determinations required by § 54-91g. The defendant waived the presentence investigation and there was no consideration of the Miller factors, as Miller would not be decided for another twelve years. In light of our legislature enacting § 54-125a (f), we have significant concerns as to whether trial courts are the proper forum in which to provide the defendant and others in his position with a "meaningful opportunity to obtain release...." State v. Riley, supra, 315 Conn. at 661, 110 A.3d 1205. Although courts in some instances can consider postsentencing conduct during resentencing; Pepper v. United States, 562 U.S. 476, 491-92, 131 S.Ct. 1229, 179 L.Ed.2d 196 (2011) ; "[u]nder Miller . the inquiry is whether the inmate was seen to be incorrigible when he was sentenced-not whether he has proven corrigible and so can safely be paroled today." Montgomery v. Louisiana, supra, 136 S.Ct. at 744 (Scalia, J., dissenting). For example, in the present case, a resentencing court would be called on to determine, without the benefit of a presentence investigation conducted at the time of the defendant's conviction, what the defendant's character was sixteen years ago when he was sentenced. Without such information, the court would likely need to principally rely upon the defendant's subsequent rehabilitation or lack thereof since his sentencing. This situation would arise in other cases where juvenile offenders were sentenced several years or decades prior to Miller. Resentencing in such cases would be cumbersome and would in reality be more akin to a parole hearing. We note that the trial court recognized at oral argument on the defendant's motion that the defendant had presented documentation demonstrating his efforts at rehabilitation. Whether the defendant has sufficiently rehabilitated himself to safely rejoin society, however, is precisely the determination that the parole board is statutorily designated to make. Moreover, a new sentencing proceeding would impose emotional burdens on victims, who may have struggled to cope with tragic losses caused by a defendant's crimes. As the United States Supreme Court emphasized in Montgomery, the key focus in remedying retrospective Miller violations is providing juvenile offenders a meaningful opportunity for release in which they will be able to demonstrate the mitigating factors of youth and their greater ability for rehabilitation. See id., at 736 (majority). In this state, juvenile offenders sentenced to greater than ten years incarceration will have a meaningful opportunity for release in a parole hearing during which the parole board will be able to consider the mitigating factors of youth. Our state legislature has enacted, in careful consideration of the evolving legal landscape, a constitutionally adequate remedy for sentences that were imposed in violation of Miller. We conclude that, for those juvenile defendants whose sentences violated Miller and who are, or will be, eligible for parole under § 54-125a (f), resentencing is not required under our state constitution. The form of the judgment is improper, the judgment is reversed and the case is remanded with direction to render judgment denying the defendant's motion to correct an illegal sentence. In this opinion the other judges concurred. The state subsequently dropped the charge of conspiracy to commit murder. We address Riley, Casiano, and the changes in the law regarding juvenile sentencing more fully in part I of this opinion. The parties filed supplemental briefs addressing the effect of the recent changes in the law on the outcome of this case. When we refer to a Miller claim, we mean the requirement that a sentencing court consider the defendant's "chronological age and its hallmark features" as a mitigating factor prior to sentencing a juvenile offender to life without parole or its functional equivalent. State v. Riley, supra, 315 Conn. at 651-52, 110 A.3d 1205. When we refer to a Graham claim we mean a claim that a juvenile offender serving a life sentence or its functional equivalent is entitled to "some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation." Graham v. Florida, supra, 560 U.S. at 75, 130 S.Ct. 2011. Our Supreme Court stated that "Miller logically indicates that, if a sentencing scheme permits the imposition of a punishment on a juvenile homicide offender, the trial court must consider the offender's 'chronological age and its hallmark features' as mitigating against such a severe sentence. Miller v. Alabama, supra, 132 S.Ct. at 2468. As the court in Miller explained, those features include: 'immaturity, impetuosity, and failure to appreciate risks and consequences'; the offender's 'family and home environment' and the offender's inability to extricate himself from that environment; 'the circumstances of the homicide offense, including the extent of [the offender's] participation in the conduct and the way familial and peer pressures may have affected him'; the offender's 'inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys'; and the 'possibility of rehabilitation....' " (Emphasis in original.) State v. Riley, supra, 315 Conn. at 658, 110 A.3d 1205. Section 1 of Public Act 15-84, codified in part at § 54-125a (f), provides in relevant part: "(f)(1) Notwithstanding the provisions of subsections (a) to (e), inclusive, of this section, a person convicted of one or more crimes committed while such person was under eighteen years of age, who is incarcerated on or after October 1, 2015, and who received a definite sentence or total effective sentence of more than ten years for such crime or crimes prior to, on or after October 1, 2015, may be allowed to go at large on parole in the discretion of the panel of the Board of Pardons and Paroles for the institution in which such person is confined, provided (A) if such person is serving a sentence of fifty years or less, such person shall be eligible for parole after serving sixty per cent of the sentence or twelve years, whichever is greater, or (B) if such person is serving a sentence of more than fifty years, such person shall be eligible for parole after serving thirty years. Nothing in this subsection shall limit a person's eligibility for parole release under the provisions of subsections (a) to (e), inclusive, of this section if such person would be eligible for parole release at an earlier date under any of such provisions. (2) The board shall apply the parole eligibility rules of this subsection only with respect to the sentence for a crime or crimes committed while a person was under eighteen years of age.... (3) Whenever a person becomes eligible for parole release pursuant to this subsection, the board shall hold a hearing to determine such person's suitability for parole release. At least twelve months prior to such hearing, the board shall notify the office of Chief Public Defender, the appropriate state's attorney, the Victim Services Unit within the Department of Correction, the Office of the Victim Advocate and the Office of Victim Services within the Judicial Department of such person's eligibility for parole release pursuant to this subsection. The office of Chief Public Defender shall assign counsel for such person pursuant to section 51-296 if such person is indigent. At any hearing to determine such person's suitability for parole release pursuant to this subsection, the board shall permit (A) such person to make a statement on such person's behalf, (B) counsel for such person and the state's attorney to submit reports and other documents, and (C) any victim of the crime or crimes to make a statement pursuant to section 54-126a. The board may request testimony from mental health professionals or other relevant witnesses, and reports from the Commissioner of Correction or other persons, as the board may require. The board shall use validated risk assessment and needs assessment tools and its risk-based structured decision making and release criteria established pursuant to subsection (d) of section 54-124a in making a determination pursuant to this subsection. (4) After such hearing, the board may allow such person to go at large on parole with respect to any portion of a sentence that was based on a crime or crimes committed while such person was under eighteen years of age if the board finds that such parole release would be consistent with the factors set forth in subdivisions (1) to (4), inclusive, of subsection (c) of section 54-300 and if it appears, from all available information, including, but not limited to, any reports from the Commissioner of Correction, that (A) there is a reasonable probability that such person will live and remain at liberty without violating the law, (B) the benefits to such person and society that would result from such person's release to community supervision substantially outweigh the benefits to such person and society that would result from such person's continued incarceration, and (C) such person has demonstrated substantial rehabilitation since the date such crime or crimes were committed considering such person's character, background and history, as demonstrated by factors, including, but not limited to, such person's correctional record, the age and circumstances of such person as of the date of the commission of the crime or crimes, whether such person has demonstrated remorse and increased maturity since the date of the commission of the crime or crimes, such person's contributions to the welfare of other persons through service, such person's efforts to overcome substance abuse, addiction, trauma, lack of education or obstacles that such person may have faced as a child or youth in the adult correctional system, the opportunities for rehabilitation in the adult correctional system and the overall degree of such person's rehabilitation considering the nature and circumstances of the crime or crimes. (5) After such hearing, the board shall articulate for the record its decision and the reasons for its decision. If the board determines that continued confinement is necessary, the board may reassess such person's suitability for a new parole hearing at a later date to be determined at the discretion of the board, but not earlier than two years after the date of its decision. (6) The decision of the board under this subsection shall not be subject to appeal." (Emphasis added.) Section 2 of Public Act 15-84, codified at § 54-91g, provides: "(a) If the case of a child, as defined in section 46b-120 of the general statutes, is transferred to the regular criminal docket of the Superior Court pursuant to section 46b-127 of the general statutes, as amended by this act, and the child is convicted of a class A or B felony pursuant to such transfer, at the time of sentencing, the court shall: (1) Consider, in addition to any other information relevant to sentencing, the defendant's age at the time of the offense, the hallmark features of adolescence, and any scientific and psychological evidence showing the differences between a child's brain development and an adult's brain development; and (2) Consider, if the court proposes to sentence the child to a lengthy sentence under which it is likely that the child will die while incarcerated, how the scientific and psychological evidence described in subdivision (1) of this subsection counsels against such a sentence. (b) Notwithstanding the provisions of section 54-91a of the general statutes, no presentence investigation or report may be waived with respect to a child convicted of a class A or B felony. Any presentence report prepared with respect to a child convicted of a class A or B felony shall address the factors set forth in subparagraphs (A) to (D), inclusive, of subdivision (1) of subsection (a) of this section. (c) Whenever a child is sentenced pursuant to subsection (a) of this section, the court shall indicate the maximum period of incarceration that may apply to the child and whether the child may be eligible to apply for release on parole pursuant to subdivision (1) of subsection (f) of section 54-125a of the general statutes, as amended by this act. (d) The Court Support Services Division of the Judicial Branch shall compile reference materials relating to adolescent psychological and brain development to assist courts in sentencing children pursuant to this section." In the aftermath of Miller, state and federal courts have struggled with whether Miller applied retroactively upon collateral review, and divided several ways. Under federal law regarding the retroactivity of constitutional rules upon collateral review, a rule applies retroactively if it is a new substantive rule, or, if it is a new procedural rule, it is a "watershed rule of criminal procedure." Casiano v. Commissioner of Correction, supra, 317 Conn. at 62, 115 A.3d 1031. A mere new procedural rule does not apply retroactively. See id., at 62-63, 115 A.3d 1031. Some courts have concluded that Miller announced a substantive rule and thus applied retroactively; see, e.g., Diatchenko v. District Attorney, 466 Mass. 655, 666, 1 N.E.3d 270 (2013) ; our Supreme Court determined that Miller announced a new watershed rule of criminal procedure, and thus applied retroactively; Casiano v. Commissioner of Correction, supra, at 69, 115 A.3d 1031 ; and other courts determined that Miller merely announced a procedural rule that did not apply retroactively; see, e.g., In re Morgan, 713 F.3d 1365, 1368 (11th Cir.2013). In light of the legislature's enactment of Public Act 15-84 and the United States Supreme Court's decision in Montgomery, the defendant amended his appeal by withdrawing his Graham claim. In fact, the defendant states in his appellate brief that the court "impliedly" denied his motion to correct an illegal sentence. The defendant suggests that Miller is automatically implicated because he was exposed to a sentence of life without parole and the court did not consider the Miller factors prior to sentencing him. See footnote 4 of this opinion. Going forward, courts certainly must comply with Miller through consideration of the requirements listed in § 54-91g in sentencing juveniles convicted of class A and B felonies. "However, there is no authority, nor is there any principled analysis, that specifically supports the defendant's theory that the defendant's sentence should be examined in light of hypothetical sentences that could have been imposed but which were not imposed." State v. Holley, Superior Court, judicial district of Middlesex, Docket No. CR-08-185982, 2016 WL 3179683 (May 18, 2016). The defendant received a sentence of thirty-five years; the fact that he could have received a life sentence but did not has no bearing on our analysis of whether the sentence actually imposed violates Miller retrospectively. The defendant claims that Casiano, which held that a sentence of fifty years without parole violates the constitutional principles outlined in Miller, supports his contention that his sentence of thirty-five years without parole violated Miller. In Casiano, our Supreme Court stated that it "need not decide . whether the imposition of a term of less than fifty years imprisonment without parole on a juvenile offender would require the procedures set forth in Miller . Indeed, we have every reason to expect that our decisions in Riley and in the present case will prompt our legislature to renew earlier efforts to address the implications of the Supreme Court's decisions in Graham and Miller. " (Emphasis added.) Casiano v. Commissioner of Correction, supra, 317 Conn. at 79, 115 A.3d 1031. This court has held that a sentence of thirty-one years is not the functional equivalent of life without parole and, thus, does not implicate Miller. State v. Logan, supra, 160 Conn.App. at 293-94, 125 A.3d 581 ; see also State v. Taylor G., 315 Conn. 734, 744, 110 A.3d 338 (2015) (concluding that mandatory sentences of five and ten years do not violate the eighth amendment pursuant to Miller ). The defendant contends that because, if he serves his full sentence, he will not be released until he is fifty-two years old, "[a]s identified in Casiano [v. Commissioner of Correction, supra, 317 Conn. at 77, 115 A.3d 1031 ] the defendant's prospect of 'establishing a career, marrying, raising a family, or voting,' will have diminished greatly by that age." He cites to several statistics demonstrating the decreased prospects of employment for people between the ages of fifty and sixty-five, as well as statistics regarding the decreased fertility of men over the age of forty. "Although the deprivation of liberty for any amount of time, including a single year, is not insignificant, Roper, Graham and Miller cannot be read to mean that all mandatory deprivations of liberty are of potentially constitutional magnitude." State v. Taylor G., supra, 315 Conn. at 745, 110 A.3d 338. We are cognizant that those being released from extended periods of incarceration will likely face greater obstacles in establishing a career, marrying, raising a family, or voting than those who have not been incarcerated. We see no legally meaningful distinction, however, between the sentence of thirty-one years without parole in Logan, which this court concluded did not violate Miller, and the defendant's sentence of thirty-five years without parole. We note that the Iowa Supreme Court has concluded that a sentence with a thirty-five year parole ineligibility period imposed on a juvenile violates Miller. State v. Pearson, 836 N.W.2d 88, 96 (Iowa 2013). Although Pearson involved a nonhomicide conviction, we note that our Supreme Court has favorably cited the Iowa Supreme Court's juvenile sentencing jurisprudence. Casiano v. Commissioner of Correction, supra, 317 Conn. at 79, 115 A.3d 1031 (citing State v. Null, 836 N.W.2d 41 [ (Iowa 2013) ] ). Only for purposes of our analysis of whether parole eligibility under § 54-125a (f) provides a constitutionally adequate remedy, we will assume, without deciding, that the defendant's sentence of thirty-five years without parole violated the eighth amendment pursuant to Miller. We note that, notwithstanding the defendant's claim that parole eligibility is not an adequate remedy, one of the remedies he sought in filing his motion to correct was parole eligibility. In his amended motion to correct the defendant requested that "the court order the Board of Pardon and Paroles to immediately evaluate the defendant for release or, in the alternative, that the court vacate the sentence and conviction and remand the case to the juvenile court and for such further relief to which the defendant may be entitled." We note that while this appeal has been pending, the judges of our Superior Court have expressed differing views about the appropriate remedy after Montgomery. In State v. Belcher, Superior Court, judicial district of Fairfield, Docket No. CR-94-100508, 2016 WL 2935462 (April 29, 2016), the court, noting that our Supreme Court remanded the case in Riley for resentencing, concluded that it was compelled to order the same result. The defendant argues that this court is required to reach a similar conclusion. Other Superior Court decisions, however, have concluded that parole eligibility provides a sufficient remedy and concluded that the defendants in each case were not entitled to resentencing. See State v. Ellis, Superior Court, judicial district of Waterbury, Docket No. CR-91-196561, 2016 WL 3452012 (June 3, 2016) ; State v. Holley, Superior Court, judicial district of Middlesex, Docket No. CR-08-185982, 2016 WL 3179683 (May 18, 2016) ; State v. Guess, Superior Court, judicial district of New Haven, CR-93-0385472, 2016 WL 5198412 (May 5, 2016). We find the analysis in Ellis especially persuasive in its rejection of the defendant's argument. In Ellis, the court concluded that a defendant's fifty-five year sentence did not violate Miller because he is now parole eligible pursuant to § 54-125a (f). The court disagreed with the reasoning in Belcher that, because our Supreme Court in Riley remanded the case for resentencing, resentencing is now required in all cases that arguably implicate Miller. It noted that the "Riley decision, which was prior to both Public Act 15-84 and the Montgomery decision, was predicated on the facts of [that] case; a virtual life sentence imposed on a juvenile with no possibility of parole. "Currently, as a direct result of Public Act 15-84, no Connecticut sentence imposed on a living juvenile offender, in the past, present or future, constitutes a life sentence, virtual or otherwise, without the possibility of parole. The predicate for the Riley decision no longer exists. "Furthermore, the court in Riley never suggested that its decision constituted a unique approach to the application of Miller creating an additional right for Connecticut citizens that could not be affected by future legislation or future United States Supreme Court decisions. The court simply applied Miller to a unique set of circumstances (a discretionary sentencing scheme, and virtual life sentence) that existed at the time of the decision." State v. Ellis, supra, Superior Court, Docket No. CR-91-196561. The defendant notes that the United States Supreme Court denied the petitions for writs of certiorari in Riley and Casiano. It is clear that those cases continue to be binding precedent on Connecticut courts. We do not see how the denial of the petitions in those cases, which had nothing to do with whether parole eligibility is an adequate remedy for a Miller violation, prevents this court from following Montgomery. The defendant makes an analogous argument that our legislature conceptualized Miller and Graham as separate claims in enacting Public Act 15-84. We do not see how, even if the defendant is correct that the legislature, pre-Montgomery, conceptualized Miller and Graham separately in enacting the two portions of Public Act 15-84, such consideration is relevant to our analysis of whether parole eligibility is a constitutionally adequate remedy under the eighth amendment after the decision in Montgomery. We are unpersuaded by the defendant's additional argument that § 54-125a (f) is not adequate in comparison to the Wyoming parole statute that the United States Supreme Court approvingly cited in Montgomery. Section 54-125a (f) provides more expansive parole eligibility than the Wyoming statute. Thus, it would be incongruous for us to conclude that our state statute is not a constitutionally adequate remedy under the eighth amendment. Connecticut is one of several states that have concluded that Graham and Miller apply to lengthy term of years sentences. See, e.g., State v. Null, 836 N.W.2d 41, 72 (Iowa 2013). Other states, however, have adhered to the principle that "[s]trictly read, Miller forbids only the imposition of a mandatory sentence of life imprisonment without parole on a person under age 18 who has committed a homicide." State v. Cardeilhac, 293 Neb. 200, 218, 876 N.W.2d 876 (2016) ; see also State v. Houston, 353 P.3d 55, 77 (Utah 2015) (Miller does not apply to discretionary life sentences); Vasquez v. Commonwealth, 291 Va. 232, 246, 781 S.E.2d 920 (2016) (aggregate term of years sentence for nonhomicide offense that set parole eligibility beyond defendant's life expectancy did not violate Graham ). We note that, in considering whether to further extend Miller, our Supreme Court has already expanded its requirements under state law beyond the original holding by applying it to discretionary life without parole sentences and term of years sentences that are the functional equivalent to life without parole. The defendant also cites to United States v. Under Seal, 819 F.3d 715 (4th Cir.2016), in which the Court of Appeals for the Fourth Circuit stated: "The limits of Montgomery will no doubt be litigated in future cases, but for present purposes it is sufficient to observe that the Supreme Court has indicated that vacating a conviction may not be necessary in order to remedy a past Miller violation." Id., at 728. That case did not involve the question of whether parole eligibility is a sufficient remedy for past Miller violations. It involved whether a juvenile offender could be prosecuted as an adult in federal district court where, if convicted, a federal statute mandated that the court impose either the death penalty or life without parole, both of which if imposed on a juvenile would violate the eighth amendment. Id. The Fourth Circuit affirmed the judgment that the prosecution could not proceed. Id. This case does not support the defendant's argument that federal precedent suggests that parole eligibility is not a constitutionally adequate remedy for a Miller violation, as the court did not consider that issue. Other state courts have reached a similar conclusion. The Arizona Court of Appeals recently denied a juvenile offender's request for resentencing pursuant to Miller because the juvenile offender is now parole eligible pursuant to state statute. State v. Mendez, Docket No. 2CA-CR 2016-0091-PR, 2016 WL 2855660, *1 (Ariz.App. May 16, 2016). In fact, the Arizona Court of Appeals had made such holding prior to Montgomery. See State v. Vera, 235 Ariz. 571, 578, 334 P.3d 754 (App.2014), cert. denied, - U.S. -, 136 S.Ct. 121, 193 L.Ed.2d 95 (2015). The Nebraska Supreme Court; State v. Cardeilhac, 293 Neb. 200, 218, 876 N.W.2d 876 (2016) (citing Montgomery and holding that minimum 60 year to life sentence imposed on juvenile offender did not violate Miller because defendant would be parole eligible pursuant to state statute after serving half of minimum term); and the Ohio Court of Appeals; State v. Terrell, Docket No. CR-13-581323-A, 2016 WL 3442917, *5 (Ohio App.2016) (declining to apply Miller to sentences that offer defendants parole eligibility); have also reached similar conclusions. See also State v. Tran, 378 P.3d 1014, 1020-22, 2016 WL 3768880, *6-7 (Haw.App.2016) (concluding that life sentence with possibility of parole imposed on juvenile offender does not violate Miller ). We recognize some distinctions between Franklin and the present case, but they do not affect our conclusion that parole eligibility is a constitutionally adequate remedy. For example, in Franklin, the court remanded the case to the trial court for the limited purpose of "determining whether [the defendant] was afforded an adequate opportunity to make a record of information that will be relevant" to the parole board. People v. Franklin, supra, 63 Cal.4th at 286-87, 202 Cal.Rptr.3d 496, 370 P.3d 1053. Section 54-125a (f)(3) allows juvenile offenders to present evidence and gives the Board of Pardons and Paroles the authority to request testimony from mental health professionals and other witnesses. The decision in Franklin also noted that its mootness holding was limited to circumstances where the state statute conferred parole eligibility to a juvenile offender sentenced to a lengthy mandatory sentence. Id., at 280, 202 Cal.Rptr.3d 496, 370 P.3d 1053. As we have stated, § 54-125a (f) applies to both mandatory and discretionary sentences imposed on a juvenile offender. We also find Massachusetts case law persuasive. The Massachusetts Supreme Judicial Court, two years before Montgomery, held that parole eligibility is an adequate remedy for a retroactive Miller violation. Diatchenko v. District Attorney, 466 Mass. 655, 673, 1 N.E.3d 270 (2013). The court concluded that the defendant's life sentence violated Miller. Id., at 667, 1 N.E.3d 270. Rather than requiring resentencing upon retroactive application, however, the court excised the portions of the applicable statute precluding homicide offenders from being parole eligible if the offenders were juveniles at the time they committed the crime. Id., at 674, 1 N.E.3d 270. The result in Massachusetts was that, under the statute, juvenile offenders sentenced to life without parole would become eligible for parole after fifteen years of imprisonment. See Commonwealth v. Costa, 472 Mass. 139, 140, 33 N.E.3d 412 (2015). The defendant cited to Costa in a letter submitted to this court prior to oral argument in support of his contention that parole eligibility is constitutionally insufficient. In Costa, the Massachusetts Supreme Judicial Court ordered resentencing of a juvenile offender, notwithstanding its decision in Diatchenko, because the defendant had been sentenced to two consecutive discretionary life sentences, and, thus, would not be parole eligible under Massachusetts law for thirty years. Id., at 140, 144, 33 N.E.3d 412. The court remanded the case for resentencing, reasoning that because the defendant was sentenced prior to Miller and Diatchenko, the trial court did not have the opportunity to consider the effect imposing consecutive life sentences would have on the defendant's parole eligibility. Id., at 144, 33 N.E.3d 412. This is not applicable to the situation in the present case. We have not been made aware of any such case in Connecticut where a juvenile offender, who otherwise would have been eligible for parole under § 54-125a (f), is not eligible for parole within the timeframe of the statute because he or she is serving consecutive sentences. If such case exists, we express no opinion on the constitutionality of such sentence. Our holding today that § 54-125a (f) provides a constitutionally adequate remedy is limited to juvenile offenders who are or will be eligible for parole within the applicable timeframes set forth in the statute. The defendant also cited to People v. Nieto, 402 Ill.Dec. 521, 52 N.E.3d 442, 545 (Ill.App.2016), in which the Appellate Court of Illinois remanded a case for resentencing after Montgomery. Nieto is distinguishable. The Nieto defendant was sentenced to seventy-eight years and would have had to serve at least 75.3 years after receiving sentencing credit. Id., at 447. He would not have been released until the age of ninety-four. Id., at 448. We note the recent decision of the Louisiana Supreme Court, which upon remand from the United States Supreme Court ordered that the defendant in Montgomery v. Louisiana, supra, 136 S.Ct. at 718, be resentenced. State v. Montgomery, 194 So.3d 606, 609 (La.2016). The court concluded that it was compelled to order resentencing because the Louisiana legislature had failed to enact a proposed law that would have conferred parole eligibility on those whose sentences violated Miller upon retroactive application. State v. Montgomery, supra, 194 So.3d at 608. The Iowa Supreme Court also recently remanded a case for resentencing after the defendant had been sentenced to a discretionary sentence of life without parole. State v. Sweet, 879 N.W.2d 811, 812 (Iowa 2016). The court held that sentencing a juvenile to a discretionary sentence of life without parole violates the state constitution. Id., at 839. It stated that "sentencing courts should not be required to make speculative up-front decisions on juvenile offenders' prospects for rehabilitation because they lack adequate predictive information supporting such a decision. The parole board will be better able to discern whether the offender is irreparably corrupt after time has passed, after opportunities for maturation and rehabilitation have been provided, and after a record of success or failure in the rehabilitative process is available." Id. Thus, the court remanded the case for resentencing precisely because the defendant was not eligible for parole. Superior Court decisions have noted these same practical concerns. For example, as the court, Fasano, J., aptly noted: "An actual resentencing would, presumably, require that the parties be limited to the facts and circumstances that existed at the time of the original sentencing, sometimes decades earlier, often in the absence of original judges and lawyers as well as other key participants in the original trial, many of whom have died or otherwise become unavailable. If the parameters of the resentencing extended to the offender's current maturity, rehabilitation, ability to function in society, etc; then, it would, actually, be a parole hearing without the benefit of a statutorily authorized, qualified, Board of [Pardon and] Parole. The resentencing or virtual parole hearing, would, then, be followed by another parole hearing pursuant to the new public act? It defies logic and legislative intent and subjects participants to the unnecessary, repeated ordeal of rehashing often horrific events and circumstances, unnecessarily." State v. Ellis, Superior Court, judicial district of Waterbury, Docket No. CR-91-196561, 2016 WL 3452012 (June 3, 2016). In another case involving four defendants' motions to correct illegal sentences, the court, Clifford, J., likewise expressed practical, commonsense concerns: "Here's why the parole remedy suggested by the U.S. Supreme Court in Montgomery is appealing to this court. The four defendants, or petitioners, today, I was not the sentencing judge. One judge may be available as a judge trial referee, and Judge Fracasse, who was the trial judge in two of these, is deceased, and Judge William Hadden is retired from the state bench. "Two of these defendants, well, are now in their forties or close to forty, and two are in their thirties. These four cases highlight the problems in resentencing and why parole, as suggested by our U.S. Supreme Court, is a more practical solution than resentencing. If I order resentencing for these four defendants, I would be the sentencing judge on probably all four. "Victims' families would have to be located and advised about a new sentencing procedure on cases where at least one conviction is over twenty-five years old. The victim's families will be informed that the hallmark characteristics of youth will be considered by a judge who previously had nothing to do with the case and for a defendant, in that particular case, who is now in his forties.... "If I conduct resentencing what is relevant at resentencing? Is it only the characteristics of the defendant's youth according to Miller ? Would I consider the defendant's immaturity, impetuosity, and failure to appreciate risks and consequences going back many, many years and that is all I would factor in? Would this court be able to consider negative or positive behavior by the defendant during incarceration since they received their sentence? Would I consider a defendant's maturity and rehabilitation at the time of resentencing just as parole would? "Clearly, pursuant to Montgomery, parole is a viable, constitutional way to remedy a Miller violation and Montgomery concerned interpreting the case under Miller, it was not a Graham 'second look' case. "This court believes parole is a more realistic and practical solution than resentencing. I would have to find that the holdings in Riley and Casiano prevent this remedy; however, our [Supreme] Court never considered parole as a remedy since it didn't exist at the time of the decision." (Emphasis added.) State v. Guess, Superior Court, judicial district of New Haven, Docket No. CR-93-0385472, 2016 WL 5198412 (May 5, 2016). The defendant, in a letter to this court prior to oral argument, and at oral argument, suggested that a conclusion by this court that parole eligibility is a sufficient remedy for a Miller violation would violate the separation of powers doctrine because juvenile offenders who are released on parole will still be subject to having to serve the full sentence if they violate their parole. Although we generally do not consider claims that have not been briefed; see State v. Wright, 197 Conn. 588, 595, 500 A.2d 547 (1985) ; we note that our Supreme Court in Casiano expected our legislature to implement future remedies to comply with Riley, Graham and Miller. Furthermore, Montgomery requires that those whose sentences violated Miller be given a meaningful opportunity for release; it does not require that all juvenile offenders be released with no further supervision by the criminal justice system. Whether juvenile offenders who are granted release pursuant to § 54-125a (f) return to prison or not is to be determined by their subsequent behavior.

12506731

MARIA G. v. COMMISSIONER OF CHILDREN AND FAMILIES

Maria G. v. Comm'r of Children & Families

2019-01-29

AC 40692