author: PETERS, J.

text:
    THEODORE A. VERSPYCK ET AL. v. MICHAEL J. FRANCO ET AL.
    (AC 23813)
    Lavery, C. J., and Bishop and Peters, Js.

      Argued December 2, 2003 —
    officially released February 24, 2004

      John Wayne Fox, with whom were John J. Louizos and, on the brief, Patricia M. Gaug, for the appellant (defendant Marilyn P. Altsheler).

      Louis Ciccarello, for the appellees (plaintiffs).
   Opinion

PETERS, J.

General Statutes § 52-568 (1) permits a party to a civil action who has been wrongfully sued to recover double damages on the ground of vexatious litigation. The trial court held that the plaintiffs met their burden of showing lack of probable cause for the initiation of the earlier litigation. The principal issue on appeal is whether the trial court properly rejected the present defendant’s special defense of reliance on the advice of counsel. We disagree with the court’s holding. Accordingly, we reverse the judgment and direct the entry of judgment for the present defendant.

The plaintiffs, Theodore A. Verspyck and Patricia J. Verspyck, filed a two count complaint against the defendant Marilyn P. Altsheler. The complaint alleged that the defendant had brought a federal action against them “without probable cause, and with a malicious intent unjustly to vex and trouble them.” They sought damages for violation of subdivisions (1) and (2) of § 52-568.

The defendant had brought the federal action to contest the validity of a conveyance to the present plaintiffs of property located at 19 Valeview Road in Wilton. The issue she brought to the court was whether a deed of conveyance, signed by only one of two alleged cotrus-tees of an irrevocable trust, gave the plaintiffs good title to trust property. The United States District Court for the District of Connecticut, Squatrito, J., did not address the merits of this issue. It dismissed the defendant’s complaint because the trust had not availed itself of the opportunity of recordation pursuant to General Statutes § 47-20. The United States Court of Appeals for the Second Circuit affirmed summarily.

In response to the plaintiffs’ state court action for vexatious litigation, the defendant filed an answer and special defenses. The centerpiece of her defense was that she did not lack probable cause to bring the federal action because she had relied in good faith on the advice of her attorneys.

After a court trial, the court rendered judgment in favor of the plaintiffs and awarded them damages of $142,000. Although the court held that the plaintiffs had not established malicious intent on the part of the defendant, it held that she had brought the federal action without probable cause to do so. The court rejected the defendant’s special defense of reliance on the advice of counsel on the ground that she had failed to disclose relevant information to counsel.

On appeal, the defendant asks us to reverse the judgment of the trial court on five grounds. We agree with the defendant that the court was mistaken in rejecting her special defense. We therefore do not need to address the four other issues that she has raised. See Shea v. Chase Manhattan Bank, N.A., 64 Conn. App. 624, 630-31, 781 A.2d 352 (2001).

I

THE FEDERAL LITIGATION

To understand the present litigation, we must first examine the facts underlying the claim that the defendant presented to the federal court concerning ownership rights to a disputed parcel in Wilton. The focus of the defendant’s claim was a 1978 conveyance of property to the plaintiffs by her deceased husband in a deed signed by her husband as trustee. The defendant claimed that this deed did not convey good title to the plaintiffs because it lacked the signature of her sister-in-law, a cotrustee.

The defendant’s federal action was based on her interpretation of the terms of an irrevocable trust created in 1955 by Leonard Altsheler and Eleanor Altsheler, the defendant’s parents-in-law. Although originally funded only with securities, the trust contemplated that it would include “all other property, real and personal, which, from time to time, the [settlors] may place under the operation of the trust . . . .” The trust named the defendant’s husband, Richard A. Altsheler, and Marilyn M. Altsheler, her sister-in-law, as cotrustees and principal beneficiaries under the trust. The trust was never recorded.

In 1971, one of the settlors, the defendant’s mother-in-law, transferred to the defendant’s husband some real property that included the parcel that is the subject of the present litigation. This property was conveyed to “Richard A. Altsheler, trustee,” for $175,000. Although the sister-in-law attended the closing and served as a witness to the conveyance, her name was not on the deed. The defendant claims that the words “as trustee” were intended to identify the real property as trust property.

In 1978, after a subdivision, the defendant’s husband conveyed the disputed parcel to the plaintiffs by warranty deed, which he signed as Richard A. Altsheler, trustee. In the deed, her husband retained a right of first refusal with respect to any future sale of the parcel by the plaintiffs. The deed was not signed by the defendant’s sister-in-law.

In 1988, more than nine years after this conveyance, the defendant was appointed as the trust’s sole trustee because of the death of her husband. She had been named successor trustee in 1985 after the death of her sister-in-law. She was also designated as the trust’s sole beneficiary.

Until April, 1997, neither the defendant nor any one else had ever challenged the validity of the plaintiffs’ title to the disputed parcel. At that time, when the plaintiffs contemplated sale of the disputed parcel to a third party, a question was raised about whether the defendant might claim a right of first refusal. Relying on the advice of counsel, the defendant did not pursue such a claim.

In the process of consultation with counsel, the defendant noticed that the 1978 deed from her deceased husband to the plaintiffs was signed only by her husband and not by her sister-in-law, whom the trust had named as cotrustee. This discovery triggered her unsuccessful federal court action against the plaintiffs, the third party purchasers from the plaintiffs, and the financial and real estate institutions that had been involved in the sale of the property. She allegedly acted with the advice of counsel throughout the pursuit of her federal litigation.

The federal court dismissed the defendant’s action for failing to state a claim on which relief could be granted. Without addressing the merits of the defendant’s claim under the law of trusts, the court held that § 47-20 gave the defendant’s husband statutory authority to uphold the 1978 conveyance of the property to the plaintiffs. The court stated that because the trust had never been memorialized by a “separate duly executed and recorded instrument,” the plaintiffs were not bound by any trust related restrictions on the husband’s power of conveyance.

II

THE PRESENT LITIGATION

At the conclusion of the federal proceedings, the plaintiffs brought the vexatious litigation action that is the subject of this appeal. The trial court held that the plaintiffs had proven that the defendant lacked probable cause to initiate her federal lawsuit. The court awarded damages in accordance with § 52-568 (1) to the plaintiffs.

The defendant’s most persuasive contention on appeal from this judgment is that, even if the trial court properly concluded that she did not have probable cause to initiate the federal litigation, she is not hable to the plaintiffs because she established the special defense that she had acted on the advice of counsel. The court addressed and rejected this special defense. Our review of the court’s conclusion of law is plenary. State v. Clark, 255 Conn. 268, 279, 764 A.2d 1251 (2001). We conclude that the judgment in favor of the plaintiffs must be reversed.

Under Connecticut case law, “[a]dvice of counsel is a complete defense to an action of . . . vexatious suit when it is shown that the defendant . . . instituted [her] civil action relying in good faith on such advice, given after a full and fair statement of all facts within [her] knowledge, or which [she] was charged with knowing. The fact that the attorney’s advice was unsound or erroneous will not affect the result.” (Internal quotation marks omitted.) Shea v. Chase Manhattan Bank, supra, 64 Conn. App. 630.

The trial court found that the defendant had not been properly advised about the merits of her federal action. It is now conceded that her counsel in the federal litigation had failed to discover § 47-20, which was the basis for the dismissal of the defendant’s federal claim. The court nonetheless concluded that the defendant had not established her defense of reliance on counsel because, in its view, the defendant had not disclosed to counsel all the information that counsel needed to give informed advice about the viability of the federal action. We disagree.

A

Counsel’s View of Consultation with the Defendant

The record reveals that the defendant’s counsel, Michael J. Franco, was an experienced trusts and estates lawyer. He testified that his advice about the merits of the defendant’s trust claim was based on documentation that the defendant had supplied to him and his own independent legal research. In his professional view, the 1955 trust required that a conveyance of the disputed party be signed by both cotrustees of the trust.

The defendant had provided for counsel copies of (1) the May 8, 1997 letter from the plaintiffs’ attorney stating that the defendant did not have a right of first refusal, (2) the 1978 deed from her husband to the plaintiffs, (3) the 1971 deed from her mother-in-law to her husband that described her husband as trustee and (4) the 1955 trust. In addition to supplying these documents, the defendant had advised counsel of the importance of the dates of these various documents and their bearing on her contention that the disputed parcel was part of the trust.

Attorney Franco testified at trial that the defendant had fully complied with his requests for documentation. Moreover, he continued to advise the defendant that her lawsuit had merit even when he was alerted of the existence of § 47-20 by plaintiffs’ counsel subsequent to the initiation of the federal action.

Perhaps the trial court discounted the weight of this testimony as an effort by defense counsel to make amends to his client. The court did not, however, make such a finding in its memorandum of decision. Instead, it relied on two specific facts that the defendant, in the court’s view, improperly failed to disclose to her counsel.

B

The Letter of Resignation

The trial court held that the defendant should have disclosed to counsel a 1960 letter, signed by the defendant’s sister-in-law, in which she resigned as trustee of the trust. This letter predated the 1978 conveyance of the disputed parcel to the plaintiffs. In the court’s view, access to the resignation letter would have alerted counsel to a significant weakness in the defendant’s federal claim. Knowing of this letter, counsel would have recognized that the 1978 conveyance to the plaintiffs did not require the signature of a cotrustee because there was no longer a cotrustee.

The court discounted the defendant’s assertion that she had not been aware of the existence of the resignation letter. The court held, and we agree, that as successor trustee, the defendant had a duty to familiarize herself with trust files maintained by the firm that had long represented the settlors and the trust. See DeLaurentis v. New Haven, 220 Conn. 225, 258, 597 A.2d 807 (1991).

The court did not, however, take sufficient account of the fact that the resignation letter was not the only relevant document in the trust files. If the defendant had examined the files, as she should have, she would have discovered several documents raising questions about the viability of the 1960 resignation letter. The files contained (1) a 1982 amendment to the 1955 trust that was signed by both the defendant’s husband and her sister-in-law as cotrustees, accompanied by a statement expressing their mutual desire to amend the trust, and (2) various stock certificates and federal tax documents for the years 1983 and 1985 that identified the defendant’s husband and her sister-in-law as trustees, and a 1978 letter addressed to her husband and her sister-in-law that canceled insurance of the disputed parcel. This documentation would have raised doubts about the effectiveness of the letter of resignation.

We recognize that the trial court made no finding about the significance of the contents of the file as a whole. It would have been good practice for the defendant to have asked the court for an articulation. See Practice Book § 60-5. Nonetheless, the plaintiffs have not disputed the fact that each of the contradictory documents was in the trust files. Indeed, they themselves refer to the existence of the unexamined files as evidence of lack of good cause. They cannot now be heard to complain about the significance of the contents of these files.

We are persuaded that counsel could not have been misled by the defendant’s failure to disclose the resignation letter. Knowing of the letter, counsel would have been obligated to conduct a comprehensive search of the trust files. If he had done so, he would have discovered the other documents that undermine the significance of the defendant’s nondisclosure. Indeed, upon discovery of this contradictory documentation, the defendant’s counsel made a deliberate decision that the defendant’s federal action should go forward.

We conclude, therefore, that the record does not support the trial court’s inference that the defendant’s counsel would have reached a different legal conclusion if the letter had been discovered prior to the initiation of the federal action. We know of no authority for the proposition that, before initiating litigation, the defendant had the burden of deciding which of various inconsistent documents accurately described her sister-in-law’s trust status at the time of the 1978 conveyance of the disputed parcel.

C

Friendly Relationships with the Plaintiffs

The court also held that the defendant should have alerted her counsel to the fact that her husband and her sister-in-law had been on friendly terms with the plaintiffs throughout their residence at the disputed parcel. The court found it significant that, throughout that nineteen year period, neither the defendant nor her sister-indaw had challenged the validity of the plaintiffs’ title.

Although the court concluded that the long period of acquiescence demonstrated that the defendant lacked probable cause to initiate her federal action, that conclusion is irrelevant with respect to reliance on advice of counsel. The documentation provided to counsel would necessarily have informed counsel of the existence of this time gap. Indeed, the record reveals that, before developing his legal strategy, the defendant’s counsel knew that no complaints had been filed previously. At trial, during cross-examination, Franco stated: “[The defendant] didn’t withhold that information from me. That was just a conclusion that I had already reached that nobody challenged the title.”

The court found it telling, however, that the defendant did not expressly inform counsel of the fact that her sister-in-law had never complained about the absence of her signature in the 1978 conveyance. We disagree. The record at trial did not establish that the sister-in-law, who did not attend the 1978 closing, was aware of the terms of the conveyance to the plaintiffs.

According to the court, the defendant should have informed counsel of the long-standing friendly relationship between the plaintiffs and her husband and her sister-in-law. This is a puzzling conclusion.

At trial, the plaintiffs testified that they had had only a few conversations with the defendant’s husband during their residence at the disputed parcel. In the same period, according to the record, the plaintiffs had never had a conversation with the defendant’s sister-in-law even though for some time she had lived near the plaintiffs.

We disagree, therefore, with the court’s conclusion that these nondisclosures materially impaired Franco’s ability to assess the merits of the defendant’s challenge to the validity of the 1978 deed. Even a friendly relationship would not have diminished the validity of the defendant’s contention that the disputed parcel was trust property that had been conveyed in disregard of the terms of the trust.

In sum, we conclude that the trial court improperly determined that the defendant was not entitled to rely on a defense of advice of counsel. None of the information that the court found the defendant to have withheld from counsel had any demonstrated impact on counsel’s decision to file the federal action on her behalf.

We conclude, therefore, that the plaintiffs did not establish their claim for damages for vexatious litigation. We empathize with the plaintiffs’ understandable frustration with the length and expense of the litigation about their property rights. Nonetheless, the defendant established that she had brought her misguided federal action on the advice of counsel, who concededly should have discovered the dispositive statute before initiating the federal action. It follows that the plaintiffs failed to prove that the federal action was brought without probable cause to do so. See Ancona v. Manafort Bros., Inc., 56 Conn. App. 701, 709, 746 A.2d 184, cert. denied, 252 Conn. 953, 749 A.2d 1202 (2000).

The judgment is reversed and the case is remanded with direction to render judgment for the defendant.

In this opinion the other judges concurred.

       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.”

       The plaintiffs’ action originally included three additional counts. The plaintiffs withdrew one count charging the defendant Marilyn P. Altsheler with slander of title and withdrew two counts charging her attorneys, Michael J. Franco and Tiziana M. Scaccia, with having improperly represented her in the federal action. Thus, Altsheler was the only defendant at trial. We refer to her in this opinion as the defendant.

       General Statutes § 47-20 provides in relevant part: “The word ‘trustee’ . . . following the name of the grantee in a duly executed and recorded instrument which conveys, transfers or assigns real estate or any interest therein, with or without the name of a cestui que trust or principal appearing and without any other language expressly limiting the powers, interest or estate of the grantee, do not, in the absence of a separate duly executed and recorded instrument defining the powers of the grantee, affect the right of the grantee to sell, mortgage or otherwise dispose of the real estate or interest therein in the same manner as if those words had not been used. . . .”

       The defendant also filed, but subsequently abandoned, a special defense calling for the apportionment of damages among her attorneys.

       The court found that the plaintiffs had incurred approximately $71,000 in legal fees in 1he federal proceedings and doubled that award pursuant to General Statutes § 52-568 (1).

       Those claims challenged the propriety of the court’s holding that the defendant (1) lacked probable cause to initiate the federal action, (2) was liable under the vexatious litigation statute, General Statutes § 52-568 (1), even though she had not acted maliciously, (3) was obligated to pay double damages to the plaintiffs even though she had not acted with malicious intent and (4) was obligated to pay damages to the plaintiffs without a setoff for the damages that had been paid by the defendant’s counsel.

       The defendant attended the closing.

       It is not entirely clear that the undisclosed information about matters of relevance to the defendant’s federal claim had any relationship to the dismissal of that claim. As noted previously, the federal court based that dismissal solely on the terms of General Statutes § 47-20.

       Although the plaintiffs also brought suit against attorney Franco’s associate, Tiziana M. Scaccia, the record reveals that Franco made all of the relevant decisions in the federal litigation.

       The defendant’s counsel also testified that he had searched the land records prior to filing the lawsuit and had not found a record of the 1955 trust. Nonetheless, he still concluded that the disputed parcel was trust property.

       The original copy of the 1955 trust did not include “Schedule A,” which listed the stocks that served as the original funding source for the trust.

       The defendant’s counsel testified that the defendant told him that “the trust, which was the owner of this property prior to the conveyance to the [plaintiffs], empowered two trustees and that she raised the issue that the deed only contained the signature of one trustee and she questioned the validity of the deed.”

       In the defendant’s view, the resignation letter was ineffective as a matter of law because it did not conform to the terms of the trust with regard to resignation. Article four of the 1955 trust set out the guidelines for resignation and required the resigning trustee to provide an accounting and to turn over all property acquired via the trust. In the alternative, the defendant also claimed that the 1960 resignation letter was never properly authenticated at trial. We need not reach those issues.

       The defendant’s counsel testified at trial that he had analyzed the applicability of the claims of laches, estoppel and adverse possession and had concluded that the defendant should continue the lawsuit based on the fact that the defendant did not become trustee and, therefore, had standing to complain until 1988.

       Patricia Verspyck testified that she had had a friendly relationship with the defendant’s mother-in-law.

       They described the sister-in-law as a recluse allegedly suffering from a mental illness.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    WYATT ENERGY, INC. v. MOTIVA ENTERPRISES, LLC, ET AL. MOTIVA ENTERPRISES, LLC, ET AL. v. WYATT ENERGY, INC.
    (AC 23740)
    Foti, West and Dupont, Js.
    Argued December 8, 2003 —
    officially released February 24, 2004

      Robert A. Izard, Jr., with whom were Todd A. Higgins, Barbara F. Wolf and, on the brief, Nancy A. Kulesa, for the appellant (plaintiff in the first case, defendant in the second case).

      Sheila A. Huddleston, with whom, on the brief, were Paul D. Sanson and Alexandra M. McHugh, for the appellees (defendants in the first case, plaintiffs in the second case).
   Opinion

PER CURIAM.

The plaintiff, Wyatt Energy, Inc. (Wyatt), appeals from the judgment of the trial court granting the application for a prejudgment remedy filed by the defendants, Motiva Enterprises, Inc., Shell Oil Company, Shell Oil Products Company and Equiva Trading Company (collectively Motiva), in connection with their breach of contract counterclaim. On appeal, Wyatt’s sole claim is that the court, Hodgson, J., failed to consider properly its defense that its contract with Motiva had become illegal and unenforceable as a result of allegedly anticompetitive conduct by Motiva.

On October 16 and 17, 2002, the court held a hearing on the cross applications for a prejudgment remedy. In a twenty page memorandum of decision, the court granted Motiva’s application, authorizing it to attach Wyatt’s assets in the amount of $1,156,930 and denied Wyatt’s application for a prejudgment remedy.

On December 16, 2003, after oral argument before this court, Motiva filed a motion to dismiss this appeal, alleging mootness. By that motion, to which there was no opposition filed, Motiva claimed that the appeal is moot because there is no practical relief that this court can render. Together with its motion, Motiva has filed a memorandum of decision by the court, Sheedy, J., dated December 8, 2003, of which we take judicial notice, rendering summary judgment in favor of Motiva on Wyatt’s illegality defense.

“Mootness presents a circumstance wherein the issue before the court has been resolved or had lost its significance because of a change in the condition of affairs between the parties. . . . Since mootness implicates subject matter jurisdiction . . . it can be raised at any stage of the proceedings. ... A case becomes moot when due to intervening circumstances a controversy between the parties no longer exists. ... An issue is moot when the court can no longer grant any practical relief. . . . Whenever a claim of lack of jurisdiction is brought to the court’s attention, it must be resolved before the court can proceed. . . .

“The test for determining mootness of an appeal is whether there is any practical relief this court can grant the appellant. . . . [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. ... If no practical relief can be afforded to the parties, the appeal must be dismissed.” (Internal quotation marks omitted.) Taylor v. Zoning Board of Appeals, 71 Conn. App. 43, 46, 800 A.2d 641 (2002).

The plaintiff’s appeal is moot because there is no practical relief that this court can render. The sole issue on appeal, whether Judge Hodgson failed to consider Wyatt’s antitrust illegality defense or applied an improper legal standard in considering it, is no longer in the case. In light of Judge Sheedy’s ruling that Wyatt’s antitrust illegality defense was insufficient as a matter of law, which was a ground different from that addressed by Judge Hodgson, we no longer have an appealable issue to consider for which we can grant practical relief.

The appeal is dismissed.

       The granting or denial of a prejudgment remedy is deemed a final judgment for the purposes of appeal. General Statutes § 52-2781 (a).

       The defendants, in addition to Motiva Enterprises, Inc., are Shell Oil Company, Shell Oil Products Company and Equiva Trading Company. We will refer to the defendants collectively as Motiva, as did the trial court.

       Wyatt appealed from the “ruling on the application for prejudgment attachments,” which also denied Wyatt’s application for a prejudgment remedy. Wyatt’s brief, however, is limited to its claim that the court improperly granted Motiva’s application.

       The appeal was argued before this court on December 8, 2003. We will address only those facts and procedures necessary for a disposition of this appeal.

       The illegality defense was pleaded by Wyatt as a special defense to Motiva’s counterclaim. While this appeal was pending, Motiva filed a motion for summary judgment in the trial court on that special defense, as well as on other issues.

       In rendering summary judgment on that issue, Judge Sheedy found that the defense fails as a matter of law because the agreement did not require a violation of law and was capable of execution without violating the law.

       Even if we assume arguendo that Judge Hodgson improperly rejected Wyatt’s illegality defense on the grounds as challenged, we could not vacate the prejudgment ruling in light of Judge Sheedy’s ruling rejecting that defense on another ground, not challenged in this appeal.


author: FOTI, J.

text:
    CHASE MANHATTAN MORTGAGE CORPORATION v. MICHAEL L. BURTON
    (AC 23975)
    Foti, West and Hennessy, Js.
    Argued December 3, 2003 —
    officially released February 24, 2004

      Kerry M. Wisser, with whom, on the brief, was Nathan A. Schatz, for the appellant (defendant).

      Jennifer S. Allison, for the appellee (plaintiff).
   Opinion

FOTI, J.

The defendant, Michael L. Burton, appeals from the trial court’s judgment of strict foreclosure and from the denial of his motion to open and vacate that judgment. On appeal, the defendant claims that the court improperly rendered the default judgment of strict foreclosure in violation of Practice Book § 17-32 (b). We conclude that the appeal is moot and must, therefore, be dismissed.

The following facts and procedural history are relevant to the resolution of the defendant’s claims. On July 24, 2002, the plaintiff, Chase Manhattan Mortgage Corporation, filed this action against the defendant, seeking foreclosure of the mortgage on the defendant’s real property. The defendant subsequently filed a pro se appearance, but did not file any pleadings. Consequently, on August 29, 2002, the plaintiff filed a motion for default for failure to plead and a motion for judgment of strict foreclosure. On September 11, 2002, the court clerk granted the motion for default. On September 16, 2002, the court granted the plaintiffs motion for judgment of strict foreclosure and sent notice of its judgment on September 17, 2002. The court set the law day for October 15, 2002, and, because the defendant did not redeem on that day, title vested in the plaintiff.

On November 27, 2002, the defendant, through counsel, filed a motion to open and to vacate the judgment of strict foreclosure. On February 7, 2003, after a hearing, the court denied the defendant’s motion to open and sent notice of its denial on February 19, 2003. On February 28, 2003, the defendant filed this appeal from the judgment of strict foreclosure and from the denial of his motion to open and to vacate the judgment of strict foreclosure. On May 27, 2003, the plaintiff filed a motion to dismiss the appeal as moot. This court denied that motion on June 25, 2003. Additional facts and procedural history relevant to the defendant’s claims will be set forth as necessary.

“Mootness implicates the subject matter jurisdiction of this court. . . . [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. ... If no practical relief can be afforded to the parties, the appeal must be dismissed.” (Citations omitted; internal quotation marks omitted.) Edgewood Village, Inc. v. Housing Authority, 54 Conn. App. 164, 167, 734 A.2d 589 (1999).

Here, notice of the court’s judgment of strict foreclosure was sent on September 17, 2002, which began the twenty day appeal period as well as a twenty day automatic stay. See Practice Book §§ 63-1 and 61-11. Both the appeal period and the automatic stay expired on October 7, 2002. The court set the law day for October 15, 2002, and, because the defendant did not redeem on that day and because the automatic stay had expired, title vested in the plaintiff. If title vested absolutely at that time, there would be no practical relief that this court can grant, which would render this appeal moot. See Barclays Bank of New York v. Ivler, 20 Conn. App. 163, 167, 565 A.2d 252, cert. denied, 213 Conn. 809, 568 A.2d 792 (1989). We recognize, however, that the question of mootness is intertwined with the only issue raised on appeal, whether title vested properly in the plaintiff.

The defendant claims that title did not vest absolutely because a procedural error (1) caused an improper entry of the default judgment and (2) was an adequate ground for opening the judgment. Specifically, the defendant argues that the court did not wait the requisite fifteen days after entering the default to render the judgment of strict foreclosure pursuant to Practice Book § 17-32 (b). Because this same procedural error underlies both of the defendant’s claims, we will address the claims jointly.

The resolution of the defendant’s claim of procedural error requires this court to examine Practice Book §§ 17-32 (b) and 17-33 (b), which pertain to when a judgment may be entered where a defendant is in default for failure to plead. That examination requires us to apply our well settled principles of statutory construction. See Doe v. Connecticut Bar Examining Committee, 263 Conn. 39, 61, 818 A.2d 14 (2003). “Statutory construction is a question of law and therefore our review is plenary.” (Internal quotation marks omitted.) Original Grasso Construction Co. v. Shepherd, 70 Conn. App. 404, 415, 799 A.2d 1083, cert. denied, 261 Conn. 932, 806 A.2d 1065 (2002).

Section 17-32 (b) provides in relevant part that “[a] claim for a hearing in damages or motion for judgment shall not be filed before the expiration of fifteen days from the date of notice of issuance of the default under this subsection.” Section 17-33 (b), however, provides in relevant part that “the judicial authority, at or after the time it renders the default, notwithstanding Section 17-32 (b), may also render judgment in foreclosure cases . . . provided the plaintiff has also made a motion for judgment . . . .” (Emphasis added.) Although the phrase “notwithstanding Section 17-32 (b)” was added as part of the 2003 revision of our rules of practice, which was after the date at issue in this appeal, the commentary to Practice Book § 17-33 (b) makes it clear that this amendment “was made for clarity.”

Here, the defendant claims that Practice Book § 17-32 (b) is controlling and that it required the court to wait at least fifteen days after the default before it could enter a default judgment against him. He further argues that the amendment to Practice Book § 17-33 (b), which clearly places the issues raised in this appeal within the realm of Practice Book § 17-33 (b) and not Practice Book § 17-32 (b), is inapplicable because the trial court rendered judgment on the default in this case prior to the effective date of the amendment. Such an argument is without merit. Our objective in interpreting a rule of practice is to ascertain and give effect to the intent of the drafters. See State v. Tinsley, 59 Conn. App. 4, 17, 755 A.2d 378, cert. denied, 254 Conn. 938, 761 A.2d 765 (2000); see also State v. Pare, 253 Conn. 611, 622, 755 A.2d 180 (2000). The amendment to Practice Book § 17-33 (b) was for clarification purposes and did not substantively change the meaning and intent behind the provision. Accordingly, we must conclude that the provisions of Practice Book § 17-33 (b) apply notwithstanding the fifteen day requirement of Practice Book § 17-32 (b) even when, as here, the effective date of the amendment occurred after the date at issue.

In this case, the plaintiff filed a motion for default for failure to plead and a motion for a judgment of strict foreclosure on August 29, 2002. The court clerk then granted the motion for default on September 11, 2002, and the court rendered judgment of strict foreclosure on September 16, 2002. Because this is a foreclosure proceeding, Practice Book § 17-33 (b), which allows a court to render judgment “at or after the time it renders the default,” is applicable. As a result, under Practice Book § 17-33 (b), the court properly rendered the judgment even though it did so only five days after the default was entered. We therefore conclude that because there was no procedural error in the entry of the default, the court properly rendered judgment of strict foreclosure and properly denied the motion to open the judgment.

Because there was no procedural error, as the defendant claims there was, which would have resulted in an improper rendering of the judgment of strict foreclosure and the denial of the motion to open the judgment, we conclude that title vested properly and absolutely in the plaintiff following the law day on October 15, 2002, because the automatic stay had expired. As a result, there is no practical relief that this court can grant the defendant. We therefore conclude that the defendant’s claims are moot and dismiss this appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

       The defendant’s appeal from the judgment of strict foreclosure, which he filed more than five months after the judgment was rendered, is untimely. The plaintiff, however, did not file a motion to dismiss on that ground, thereby waiving any objection to the appeal’s timeliness. We therefore will consider the defendant’s claim. See Savage v. Savage, 25 Conn. App. 693, 694 n.1, 596 A.2d 23 (1991).

       The plaintiff also filed a motion for reconsideration en banc on July 7, 2003, which this court denied on October 15, 2003.

       Although the defendant’s motion to open would have extended the appeal period pursuant to Practice Book § 63-1 (c), and, therefore, the automatic stay pursuant to Practice Book § 61-11 (a), he did not file his motion until November 27,2002, which was after the original appeal period and automatic stay had expired and after title had already vested in the plaintiff. Furthermore, the defendant did not file this appeal until February 28, 2003, which prevented the continuation of the stay pursuant to § 61-11 (a).

       Specifically, the defendant argues that such procedural error is an adequate ground for opening a judgment of strict foreclosure pursuant to General Statutes § 49-15, which prohibits the opening of a judgment of strict foreclosure when “title has become absolute in any encumbrancer,” because such error in the entry of the default judgment prevented title from vesting absolutely in the plaintiff.

       The defendant also claims that the judgment should be opened because he did not receive notice of the court’s entry of the judgment of strict foreclosure. The defendant recognizes, however, that “the limited scope of appellate review applicable to that factual finding [by the trial court] will prevent him from being able to successfully challenge that finding on appeal. ”

       The defendant concedes that “under Practice Book § 17-33 (b), as amended, a trial court may simultaneously consider a motion for default for failure to plead and a motion for judgment upon that default . . . .”

       The date at issue in this appeal is September 17, 2002, which is the date that notice of the court’s rendering of the judgment of strict foreclosure was sent. The effective date of the amendment to Practice Book § 17-33 (b) was January 1, 2003.

       Although we recognize that we are not bound by the commentary to Practice Book § 17-33 (b), we agree with it and, therefore, conclude that the 2003 amendment was for clarification purposes only.

       Because no procedural error exists in this matter, we need not address whether procedural error is an adequate ground to open a judgment of strict foreclosure under General Statutes § 49-15.


author: DUPONT, J.

text:
    IN RE ALEXANDER T. ET AL.

    (AC 23673)
    Dranginis, DiPentima and Dupont, Js.

      Argued November 20, 2003 —
    officially released February 24, 2004

      Marissa L. Elkins, certified legal intern, with whom were Paul Chill, supervising attorney, and, on the brief, Melanie Brookes, Heather Phaneuf and Maribeth McGloin, certified legal interns, for the appellant (respondent mother).

      John E. Tucker, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, 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.

   Opinion

DUPONT, J.

The respondent mother appeals from the judgments of the trial court terminating her parental rights as to two of her minor children after petitions to do so were filed by the petitioner, the commissioner of children and families (commissioner). The respondent claims that (1) the court incorrectly ruled that the department of children and families had made reasonable efforts to reunify the family in accordance with General Statutes § 17a-112, (2) the court incorrectly decided that she was unable or unwilling to benefit from efforts at reunification and (3) the evidence was insufficient to support the finding that she had failed to achieve sufficient personal rehabilitation to allow her to assume a responsible position in her children’s lives. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the respondent’s appeal. The respondent is the mother of Alexander T. and Elijah T., bom in 1994 and 1996, respectively. The respondent has three other children, two older and one infant. On the evening of January 20, 1999, police officers raided the apartment of the respondent’s adult daughter, suspecting the daughter of illegally selling drugs. The respondent was present dining the raid, and was residing at the apartment with her adult daughter and Alexander T. and Elijah T. The respondent was arrested on an outstanding warrant, and her children were taken into the custody of the commissioner. At the time, the respondent had a lengthy history with the department, beginning in 1992 or 1993.

On January 22,1999, the commissioner filed petitions alleging that Elijah T. and Alexander T. were uncared for. The court issued orders containing specific steps to assist the respondent in regaining custody of the children. Those specific steps included, inter alia, no substance abuse, no further interaction with the criminal justice system, participation in counseling and cooperation with the department.

On April 19, 1999, the respondent was arrested and charged with assault and breach of the peace. On August 6,1999, the respondent tested positive for cannabis. From April 5, 1999, until October 18, 2001, the respondent missed at least seven appointments for either counseling or drug screening. The respondent, however, successfully completed twelve hours of the pretrial drug education program at Catholic Family Services in November, 2000, and completed 100 hours of community service in 2001. She had two negative drug screens in early 2002.

On October 15, 1999, the children were adjudicated uncared for and committed to the commissioner’s custody. The commitments were repeatedly extended. On January 29, 2001, the commissioner filed petitions to terminate the parental rights of the respondent. The petitions were granted by the trial court on September 23, 2002, and are the subject of the present appeal.

On September 21, 2000, Kelly F. Rogers, a psychologist, conducted an evaluation of the respondent and her children. The evaluation showed results consistent with paranoid personality disorder or possibly delusional disorder in the respondent. Rogers warned that any positive drug test should result in inpatient substance abuse treatment for the respondent, followed by residential aftercare. Rogers recommended a psychiatric evaluation as well as anger management and assertiveness training. Additional facts will be set forth as necessary.

I

We will address the first two claims of the respondent together. The respondent claims that the trial court improperly ruled that the department’s efforts at reunification were reasonable by clear and convincing evidence, and that she was unwilling or unable to benefit from those efforts. General Statutes § 17a-112 (j) provides in relevant part: “The Superior Court, upon hearing and notice as provided in sections 45a-716 and 45a-717, may grant a petition filed pursuant to this section if it finds by clear and convincing evidence (1) that the Department of Children and Families has made reasonable efforts to . . . reunify the child with the parent, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts . . . .” Section 17-112 (j) makes clear that the court must make a finding based on clear and convincing evidence that the department made reasonable efforts at reunification or, in the alternative, make a finding that the parent is unwilling or unable to benefit from reunification efforts. The trial court decided both issues. An analysis of the relevant facts is needed to determine whether the department made reasonable efforts to reunify the respondent with her children. A parallel analysis of the respondent’s response to those efforts is necessary to determine how able or willing she was to benefit from those efforts. Those findings are fact based.

Our standard of review is limited. We analyze the trial court’s decision in light of the evidence in the entire record to determine whether the decision was clearly erroneous. In re Luis C., 210 Conn. 157, 166, 554 A.2d 722 (1989). We make every reasonable presumption in favor of the court’s decision. In re Charles A., 55 Conn. App. 293, 297, 738 A.2d 722 (1999).

The interest of parents in raising their children, and in their children in general, is a fundamental right. That right warrants deference and protection. Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972). Termination of parental rights does not follow automatically from parental conduct that might justify the removal of a child from the natural parental home. See In re Baby Girl B., 224 Conn. 263, 293, 618 A.2d 1 (1992). While observing the proper deference for the parent-child relationship, we note that the department must make a reasonable effort at reunification, not every possible effort. In re Ebony H., 68 Conn. App. 342, 349, 789 A.2d 1158 (2002).

In the case of In re Ebony H., the respondent, in circumstances somewhat similar to those of the respondent in this case, received shoddy service from the department in response to her request for a housing referral following a successful completion of a substance abuse program. Nine days later, the respondent was again using cocaine. This court held that reasonable efforts to reunify were made despite the failure of the department to assist with housing. Id., 349-50. Despite the department’s “shameful and unacceptable”; id., 350; conduct, the court held that the efforts of the department to reunify the family were reasonable. Id.

The respondent in this case alleges failure on the part of the department to make reasonable efforts to reunify her family. She contends that the failure of the department to provide a referral for a psychiatric examination following Rogers’ report amounts to a failure to make a reasonable effort at reunification. In light of the entire record, the failure to provide the referral, while a lapse, does not make the overall efforts of the department fall below the level of what is reasonable. In addition, the efforts of the department were reasonable in light of the respondent’s conduct.

There were ten reports since 1992 that the respondent had neglected her children. Six were substantiated. On April 5, 1999, the department referred the respondent for drug screening and evaluation. She failed to attend. The respondent subsequently was arrested on April 19, 1999, and charged with assault. On June 2, 1999, the department referred the respondent to Catholic Family Services for counseling. Once again, she did not attend. Starting in July, 1999, the respondent failed to visit her children for nine months. On August 6, 1999, the respondent tested positive for cannabis in a rare instance in which she responded to requests for testing. In mid-2001, the respondent was incarcerated in the York Correctional Institution in Niantic and failed to participate in rehabilitation efforts while incarcerated. At the time of trial, the respondent was living with a man who was on probation for the crimes of reckless burning and threatening.

The respondent submitted an extensive appendix, some of which shows the positive steps that she took in furtherance of her efforts at rehabilitation and reunification. That same appendix shows that she arrived late for supervised visits, that she failed to cooperate with the department, and concerns from those responsible for the treatment of Elijah T. and Alexander T. that her visits with the children were doing more harm than good.

The court’s memorandum of decision reflects the efforts on the part of the department to reunify the respondent with her children, which rose, by clear and convincing evidence, to the level of reasonable efforts as set forth in In re Ebony H., supra, 68 Conn. App. 349. Those same facts demonstrate a corresponding lack of will or ability on the part of the respondent to cooperate with such efforts.

The respondent further alleges that the department’s decision to cut off contact between her and her children showed a lack of reasonable effort to reunify the family. The decision to cut off contact can be inferred as one made in light of all the relevant circumstances. During one period of time, the respondent did not visit her children for nine months. Although the respondent alleged hostility toward her at the home in which the children were placed during that nonvisiting period, that cannot justify her total lack of effort to visit or her failure to avail herself of the department or the courts to enforce her visitation rights.

On October 15, 1999, the respondent and the department both signed the “specific steps” that the respondent would have to take to regain custody of her children. Among them was the respondent’s authorization by signing releases to allow the department to communicate with service providers to monitor her attendance, cooperation and progress toward identified goals. Another was that the respondent must visit her children as often as permitted. She also was to abstain from substance abuse and to have no involvement with the criminal justice system. Two letters from Kareem A. Muhammad, a social worker, reflect either the respondent’s unwillingness to sign releases or her inability to stay in contact after she had signed the court’s orders containing the specific steps and then failed on two occasions to appear for drug screening and evaluation.

Finally, the respondent claims that the court could not make a finding that she was unable or unwilling to benefit from reunification efforts without the benefit of expert testimony. Expert testimony is necessary when the subject in question is beyond the field of ordinary knowledge and experience for a judge. LePage v. Horne, 262 Conn. 116, 125, 809 A.2d 505 (2002). The respondent alleged that the court found that she was unable or unwilling to benefit from reunification efforts on the basis of speculation that she would not attend a meeting after a referral to a psychiatrist. The court, in its memorandum of decision, referred to the respondent’s “track record” over five years of involvement with the department. Expert testimony is not required to examine the respondent’s history with the department and the trouble she has experienced in achieving rehabilitation to determine that the respondent was unable or unwilling to benefit from the efforts of the department.

As outlined by the court, clear and convincing evidence existed showing that the department had made reasonable efforts to reunify the respondent with the children. The respondent’s subsequent failure to take advantage of those efforts establish her inability or unwillingness to benefit from those reasonable efforts, also by clear and convincing evidence.

II

The respondent next claims that the evidence was insufficient to support the court’s decision that she had failed to achieve a sufficient degree of rehabilitation and that the court’s resulting decision to terminate her parental rights in accordance with § 17a-112 (J) (3) (B) (ii) was incorrect. We disagree.

When considering a challenge to the sufficiency of the evidence, the function of an appellate court is to review the findings of the trial court, not to retry the case. In re Quanitra M., 60 Conn. App. 96, 105-106, 758 A.2d 863, cert. denied, 255 Conn. 903, 762 A.2d 909 (2000). “A court’s determination that the evidence is clear and convincing that the parent has not rehabilitated herself will be disturbed only if that finding is not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous.” (Internal quotation marks omitted.) In re Amneris P., 66 Conn. App. 377, 384, 784 A.2d 457 (2001).

It is important to note at the outset of our analysis that in considering the evidence, we do not necessarily analyze the claim in terms of what is best for the children. Specific statutory standards necessary for termination must be met to justify termination. Consideration of the best interest of the child comes after a determination that termination is warranted. See footnote 8. What this court does analyze is whether it was clear error to determine that the evidence was clear and convincing and therefore sufficient to justify a finding that the respondent had failed to achieve sufficient personal rehabilitation so that termination of her parental rights was necessary pursuant to § 17a-112 (j) (3) (B) (ii). Our analysis concerns the statutory provisions of § 17a-112 (j) and whether there was justification for termination by clear and convincing evidence.

The statute requires the court to analyze the respondent’s rehabilitative status as it relates to the needs of the particular children. In re Eden F., 250 Conn. 674, 706, 741 A.2d 873 (1999). The critical distinction to be made is not whether the respondent has shown some improvement in her ability to manage her life, but whether she has shown some improvement in her ability to provide adequate care for the particular children in question. In re Amneris P., supra, 66 Conn. App. 385.

The court considered the respondent’s history, including positive and negative aspects, before making its decision. The court considered the improvements that the respondent had made and the testimony of the various expert and lay witnesses, and it had a large amount of information available to it before rendering its decision, including the fact that the respondent had custody of and was caring for another child at that time. We cannot say that the evidence was insufficient.

The respondent argues that termination would not have taken place had she not been arrested on a prior warrant as a result of the drug raid on her daughter’s apartment and her children placed in the commissioner’s custody because of the respondent’s temporary incarceration on charges that later were nolled. See footnote 5. We do not dispute that she was arrested and discharged from custody on those charges. Essentially, the respondent argues that the department should have placed great weight on those facts and ignored warning signs of neglect and her sad history in caring for her children, and returned the children to a potentially unsafe situation. The termination of her parental rights was not the result of an initial removal of the children from her care that “snowballed” into a termination, as the respondent suggests. Rather, it was the result of reasonable efforts by the department at reunification that met with the respondent’s failure to show an ability or willingness to achieve a sufficient degree of personal rehabilitation to allow her to assume a responsible position in her children’s lives.

The foregoing facts as found by the court and discussed in its memorandum of decision established by clear and convincing evidence that the department made reasonable attempts at reunification and that the respondent was unwilling or unable to benefit from those efforts due to her failure to achieve a sufficient degree of personal rehabilitation. The evidence was sufficient to terminate her parental rights.

The judgments are affirmed.

In this opinion the other judges concurred.

       The parental rights of the children’s fathers also were terminated. Only the respondent mother has appealed. W e therefore refer to her in this opinion as the respondent.

       Counsel for the commissioner and for the respondent are commended for their excellent briefs and oral arguments. Counsel for the respondent were certified legal interns from the University of Connecticut School of Law legal clinic.

       The children have different fathers. Neither father has shown any interest in his child, and neither is involved in this appeal.

       Only Alexander T. and Elijah T. were the subjects of the petitions for the termination of the respondent’s parental rights.

       The respondent was arrested on charges of risk of injury to a child, possession of narcotics and failure to appear. All charges later were nolled.

       The respondent received probation and a suspended one year sentence on conviction of the charges.

       The court described the response of the department to the respondent’s request for assistance as “'shameful and far beneath any acceptable level of professional conduct . . . (Internal quotation marks omitted.) In re Ebony H., supra, 68 Conn. App. 347.

       We are mindful that the best interest of a child is not the primary focus when determining whether to grant a petition to terminate parental rights. In re Valerie D., 223 Conn. 492, 511, 613 A.2d 748 (1992). The determination of a child’s best interest arises only after a statutory ground for the termination of parental rights has been established. Id. The respondent’s and the petitioner’s appendices, however, reveal that concern over the best interests of the children was the focus of the children’s therapists when they wrote letters to the department recommending a decrease in supervised visits. Although the trial court cannot use those facts to find grounds for termination, concern for the children is an additional, not an alternative, requirement for the termination of parental rights. Id., 511 n.15. The children’s best interests here are relevant to our discussion.

       During the period in which the respondent did not visit her children, they were placed temporarily with her sister. The record reflects a mistake on the part of the department in that placement. The children were physically abused while in the sister’s care. That fact does not, however, reflect a lack of reasonable effort on the part of the department to reunify the respondent and her children.

       General Statutes § 17a-112 (j) provides in relevant part: “The Superior Court, upon hearing and notice . . . may grant a petition filed pursuant to this section if it finds by clear and convincing evidence ... (3) ... (B) the child . . . (ii) is found to be neglected or uncared for and has been in the custody of the commissioner for at least fifteen months and the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent . . . and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . .”


text:
    JUDY MICHAELIS v. LAWRENCE MICHAELIS
    (AC 23450)
    Lavery, C. J., and Bishop and Peters, Js.
    Argued December 2, 2003 —
    officially released February 24, 2004

      Elaine Rubinson, for the appellant (defendant).

      Daniel J. Krisch, with whom were Christopher Mattei, legal intern, and, on the brief, Wesley W. Horton and Elizabeth Eisenmann, legal intern, for the appel-lee (plaintiff).
   Opinion

PER CURIAM.

The defendant, Lawrence Michaelis, appeals from the judgment of the trial court dissolving his marriage to the plaintiff, Judy Michaelis. The defendant claims that he was prejudiced by the court’s financial orders in that the court failed to value certain financial assets of the parties adequately. We affirm the judgment of the trial court.

The record discloses the following facts and procedural history. In a memorandum of decision filed August 20, 2002, the court rendered judgment dissolving the parties’ fourteen year marriage and entered orders regarding the division of the parties’ real and personal property, periodic alimony for the plaintiff, and the custody, care and maintenance of the parties’ two minor children. In fashioning the orders, the court, inter alia, ascribed an earning capacity to the plaintiff of at least $45,000 per year, attributed a net income to the defendant of $100,000 per year', found that a certain account held approximately $1000, and stated that the plaintiff had “deposited the proceeds from the sale of her sole real property owned at the time of the marriage, amounting to approximately $59,000, to a mutual fund, a substantial portion of which was subsequently used for a down payment” on the parties’ Westport home.

On appeal, the defendant claims that the court incorrectly determined that (1) the plaintiff had a gross annual earning capacity of $45,000, (2) he had gross annual earnings of approximately $208,000 and net earnings of $100,000, (3) the plaintiff had $1000 rather than $2000 in a particular financial account, and (4) the plaintiff had received $60,000 rather than $52,000 from the sale of real property she had owned and sold prior to the parties’ purchase of the marital home.

The defendant’s claims implicate two standards of review. To the extent the defendant assails the court’s factual findings, our function is to determine whether the court’s findings were clearly erroneous. E.g., Parley v. Parley, 72 Conn. App. 742, 750, 807 A.2d 982 (2002). Additionally, to the extent that the defendant claims that the court’s orders flowing from its findings were improper, we review those orders to determine whether the court abused its discretion. E.g., id., 752.

On the basis of our review of the record, we find no support for the defendant’s claim that the court’s factual findings were incorrect. In each instance, the record reveals an evidentiary basis from which the court could have correctly made its factual determinations. Similarly, the court’s comprehensive and well reasoned memorandum of decision reflects that the court properly and adequately considered all relevant criteria in fashioning its orders. We conclude that the court’s orders did not constitute an abuse of discretion. The defendant’s claims must therefore fail.

The judgment is affirmed.


author: BERDON, J. SCHALLER, J.,

text:
    ROBERT BERUBE ET AL. v. LOUIS NAGLE ET AL.
    (AC 23201)
    Foti, Schaller and Berdon, Js.

      Argued September 22, 2003 —
    officially released March 2, 2004

      William E. McCoy, for the appellants-cross appellees (named defendant et al.).

      Richard S. Cody, for the appellees-cross appellants (plaintiffs).
   Opinion

BERDON, J.

The defendants, Louis Nagle, Sandra Nagle and Donald Bessette, Sr., appeal, and the plaintiffs, Robert Berube and Debra Berube, cross appeal from the judgment of the trial court. Bessette on the appeal and the plaintiffs on their cross appeal claim that the court improperly found a right-of-way providing access to Pachaug Pond in Griswold in favor of Greg LaLummier. Bessette also claims that the court improperly awarded damages based on the diminution in value of the plaintiffs’ property at the time of trial rather than at the time of his breach of warranty. The Nagles claim that the court improperly found an easement for parking in favor of the plaintiffs on their property. In their cross appeal, the plaintiffs further claim that the court improperly denied relief on their claims of nuisance, malicious erection of a structure and infliction of emotional distress, and denied their prayers for punitive or exemplary damages. We agree with Bessette’s claim that the court improperly awarded damages based on the diminution in value of the plaintiffs’ property at the time of trial and the Nagles’ claim that the court improperly found an easement for parking in favor of the plaintiffs. We disagree with Bessette’s and the plaintiffs’ claim that the court improperly found a right-of-way providing access to Pachaug Pond in favor of LaLummier. We also disagree with the plaintiffs’ claims of nuisance, malicious erection of a structure and infliction of emotional distress that were raised in their cross appeal.

The following facts are not in dispute. Bessette was the owner of four parcels of property located in Gris-wold: 79 Osga Lane, 83 Osga Lane, 92 Osga Lane and lot 19.

In 1983, Bessette conveyed 92 Osga Lane to Harold Earls and Leilani Earls. Included in the conveyance was “a Right of Way to Pachaug Pond, 15 feet in width located along the northerly line of other land of the grantor and known as lot no. 6 on plan of Mary Osga, dated June, 1946.” Subsequently, on January 29, 1994, the Earls conveyed their interest in 92 Osga Lane, together with the right-of-way to Pachaug Pond, to LaLummier.

The only means of obtaining access to Osga Lane, which is a right-of-way to Bethel Road, for 79 Osga Lane and 83 Osga Lane is over lot 19. In 1987, Bessette conveyed, by warranty deed, 83 Osga Lane to the plaintiffs in fee simple. The deed to the plaintiffs included “the right to use the right of way [over lot 19] leading to Bethel Road for all purposes of ingress and egress.” The warranty deed from Bessette to the plaintiffs did not except the right-of-way to Pachaug Pond to LaLummier.

In 2000, Bessette conveyed 79 Osga Lane and lot 19 to the Nagles. Upon taking possession, the Nagles began parking their vehicles on lot 19, which the plaintiffs claimed interfered with their right-of-way to Osga Lane and inhibited their ability to park their vehicles there, as they had previously. Shortly after purchasing the property, the Nagles constructed a kennel on their property near the property line of the plaintiffs.

The plaintiffs subsequently brought the present action to quiet title and to settle other related disputes. Following a trial, the court held that (1) the plaintiffs had an easement across lot 19 “for all purposes, including ingress, egress, parking and any other appropriate use,” (2) LaLummier had a right-of-way to Pachaug Pond over the plaintiffs’ property, (3) Bessette had breached the covenants in the plaintiffs’ warranty deed as a result of the right-of-way to Pachaug Pond in favor of LaLummier, resulting in $15,000 in damages, and (4) the plaintiffs failed to sustain their burden of proof on their claims of nuisance, malicious erection of a structure and intentional infliction of emotional distress.

I

Both Bessette and the plaintiffs claim that the court improperly found a right-of-way to Pachaug Pond over the plaintiffs’ property in favor of LaLummier. We disagree.

The court found the following additional facts that are relevant to our resolution of this claim. In 1983, Bessette conveyed 92 Osga Lane to the Earls, including the right-of-way to Pachaug Pond over 83 Osga Lane. Subsequently, in 1987, Bessette conveyed 83 Osga Lane to the plaintiffs in fee simple, without excepting the right-of-way that he had conveyed to the Earls.

In 1993, LaLummier was in the Pachaug Pond area, looking for a house to rent or purchase that was on the water. While he was passing the plaintiffs’ property, he asked Debra Berube whether she knew of any properties that were available. Debra Berube told LaLum-mier that the Earls were planning on either renting or selling their property and that the property had a right-of-way to Pachaug Pond over her property. Subsequently, LaLummier entered into a rental agreement with the Earls and in 1994, the Earls sold 92 Osga Lane to him. Included in the conveyance was the right-of-way to Pachaug Pond. Since the time LaLummier began renting the property, he utilized the right-of-way to Pachaug Pond without interference from the plaintiffs.

A

Bessette claims that the court improperly found that he breached the warranty deed he gave to the plaintiffs because the plaintiffs had knowledge of the right-of-way to Pachaug Pond. We disagree.

“With regard to the trial court’s factual findings, the clearly erroneous standard of review is appropriate. ... A factual finding is clearly erroneous when it is not supported by any evidence in the record or when there is evidence to support it, but the reviewing court is left with the definite and firm conviction that a mistake has been made. . . . Simply put, we give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses.” (Internal quotation marks omitted.) Miller v. Guimaraes, 78 Conn. App. 760, 766-67, 829 A.2d 422 (2003).

In its memorandum of decision, the court found that the plaintiffs knew of the easement over their property in favor of 92 Osga Lane. It has long been held that knowledge of the encumbrance by the grantee at the time of purchase is immaterial. See Hubbard v. Norton, 10 Conn. 422, 431-32 (1835). “[T]he fact that the grantee knew of an outstanding superior claim at the time of the conveyance does not bar his right to recover for breach of a covenant of warranty . . . .”20 Am. Jur. 2d 536, Covenants § 108 (1995); see also Adams v. Belote, 263 Ga. App. 640, 642, 588 S.E.2d 827 (2003); Hughes v. Young, 115 N.C. App. 325, 330, 444 S.E.2d 248, review denied, 337 N.C. 692, 448 S.E.2d 525 (1994); Leach v. Gunnarson, 290 Or. 31, 36, 619 P.2d 263 (1980). Accordingly, Bessette’s claim that the court improperly found that he breached the warranty deed because the plaintiffs had prior knowledge of the right-of-way is unavailing.

B

The plaintiffs claim that the court improperly held that they were barred by the doctrine of equitable estop-pel from claiming that LaLummier did not have a right-of-way over their property to Pachaug Pond. Specifically, the plaintiffs claim that the court improperly invoked the doctrine of equitable estoppel when there was no evidence presented to the court that they had told LaLummier that a right-of-way to the pond existed over their property or that LaLummier ever had relied to his detriment on any statements made by them. We disagree.

The court found that the plaintiffs were barred by the doctrine of equitable estoppel from claiming that LaLummier had no interest in the pond easement. The court found that the plaintiffs knew of the easement and had assured LaLummier that he had a right to cross their property.

“The party claiming estoppel . . . has the burden of proof. . . . Whether that burden has been met is a question of fact that will not be overturned unless it is clearly erroneous. ... A court’s determination is clearly erroneous only in cases in which the record contains no evidence to support it, or in cases in which there is evidence, but the reviewing court is left with the definite and firm conviction that a mistake has been made. . . . The legal conclusions of the trial court will stand, however, only if they are legally and logically correct and are consistent with the facts of the case. . . . Accordingly, we will reverse the trial court’s legal conclusions regarding estoppel only if they involve an erroneous application of the law. . . .

“[I]n Connecticut, the doctrine of equitable estoppel . . . requires proof of two essential elements: [First] the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and [second] the other party must change [its] position in reliance on those facts, thereby incurring some injury.” (Internal quotation marks omitted.) Celentano v. Oaks Condominium Assn., 265 Conn. 579, 614-15, 830 A.2d 164 (2003).

The plaintiffs incorrectly state that there was no evidence introduced to support the finding that they were equitably estopped from denying that LaLummier had the right-of-way. The record before us more than adequately supports the court’s findings. LaLummier testified that in 1993, prior to his renting 92 Osga Lane, Debra Berube told him that the property “had a right-of-way to the lake along her property.” LaLummier also testified that the plaintiffs commonly referred to the right-of-way as belonging to him. Furthermore, LaLum-mier testified that he had a conversation with the plaintiffs in 1997 in which the plaintiffs indicated that they would be willing to purchase the right-of-way from him if he wanted to sell it. Clearly, there was sufficient evidence before the court for it to have found that the plaintiffs had told LaLummier that he had a right-of-way over their property to the pond.

LaLummier relied on the plaintiffs’ actions to his detriment. LaLummier specifically testified that he would not have rented or purchased the property if the right-of-way to the pond did not exist. The court, therefore, properly found that the plaintiffs were equitably estopped from claiming that LaLummier did not have a right-of-way to Pachaug Pond.

II

Bessette next claims that the court improperly awarded the plaintiffs damages for the breach of the warranty deed based on the diminution in value of the plaintiffs’ property at the time of trial. Bessette claims that the amount of damages should have been measured as of the date of the alleged breach of warranty. Specifically, Bessette claims that because there was no evidence introduced as to the amount of damages at the time of the breach, the court improperly awarded damages to the plaintiffs in the amount of $15,000. We agree.

“When the factual basis of the trial court’s decision is challenged on appeal, the role of this court is to determine whether the facts set out in . . . the 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. ... On appeal, the function of this court is limited solely to the determination of whether the decision of the trial court is clearly erroneous.” (Internal quotation marks omitted.) Wren v. MacPherson Interiors, Inc., 69 Conn. App. 349, 353-54, 794 A.2d 1043 (2002). At trial, the only witness to testify in regard to the damages that resulted from Bes-sette’s breach of the warranty deed to the plaintiffs was James Blair, a licensed appraiser. Blair appraised the property to determine its value as if it were not encumbered by the right-of-way and then appraised the property as encumbered by the right-of-way as of the time of trial, January, 2001. He concluded that as a result of the property being encumbered by the right-of-way, its value had decreased by $15,000. Blair testified that his opinion of the value of the plaintiffs’ property and the decrease in the property as a result of the encumbrance was based on market data when he conducted his appraisal. He did not have an opinion of the diminution in value of 83 Osga Lane when the plaintiffs purchased it.

In Levesque v. D & M Builders, Inc., 170 Conn. 177, 365 A.2d 1216 (1976), our Supreme Court, in determining when damages are to be measured once a breach of a warranty deed has been established, stated that “the damages must be measured as of the date of the breach.” (Emphasis added.) Id., 183. In this case, the court’s measure of damages was based on the property value fourteen years after the breach of the warranty deed in 1987. We agree with the defendants’ claim that the court improperly awarded damages based on the diminution in value of the plaintiffs’ property measured at the time of the trial in 2001. Accordingly, the court’s award of damages was clearly erroneous because there was no evidence as to the damages that the plaintiffs sustained at the time of the breach. Because the record is devoid of evidence of the diminution in value of the property at the time of the breach, the court must rehear this matter solely on the issue of the assessment of damages. See Peck v. McClurg, 16 Conn. App. 651, 657, 548 A.2d 17 (1988).

Ill

The Nagles claim that the court improperly found an easement by prescription for parking in favor of the plaintiffs on their property. We agree.

Included in the conveyance from Bessette to the plaintiffs in 1987 was a “right to use the right of way leading to Bethel Road for all purposes of ingress and egress.” The right-of-way crossed over lot 19 and connected the plaintiffs’ property to Bethel Road, a public road. It was the plaintiffs’ contention at trial that the right-of-way included the right to park their vehicles on lot 19. The court agreed with the plaintiffs, finding that they had “an easement across lot 19 for all purposes, including ingress, egress, parking and any other appropriate use” by prescription.

“We begin our analysis of the issue by setting forth the requirements for establishing a prescriptive easement. General Statutes § 47-37 concerns the acquisition of easements by adverse use or prescription. Section 47-37 provides: No person may acquire a right-of-way or any other easement from, in, upon or over the land of another, by the adverse use or enjoyment thereof, unless the use has been continued uninterrupted for fifteen years. In applying that section, this court repeatedly has explained that [a] party claiming to have acquired an easement by prescription must demonstrate that the use [of the property] has been open, visible, continuous and uninterrupted for fifteen years and made under a claim of right. . . .

“Whether a right of way by prescription has been acquired presents primarily a question of fact for the trier after the nature and character of the use and the surrounding circumstances have been considered. . . . When the factual basis of the court’s decision is challenged, the reviewing court must determine whether the facts are supported by the evidence or whether they are clearly erroneous. ... In such cases, the trier’s determination of fact will be disturbed only in the clearest of circumstances, where its conclusion could not reasonably be reached.” (Citation omitted; internal quotation marks omitted.) McManus v. Roggi, 78 Conn. App. 288, 294, 826 A.2d 1275 (2003).

“There can be no claim of right unless the use is unaccompanied by any recognition of [the] right [of the owner of the servient tenement] to stop such use. [Thus, a] use by express or implied permission or license cannot ripen into an easement by prescription. . . . Connecticut law refrains from extinguishing or impairing property rights by prescription unless the party claiming to have acquired an easement by prescription has met each of these stringent conditions.” (Citation omitted; emphasis added; internal quotation marks omitted.) Lisiewski v. Seidel, 72 Conn. App. 861, 873, 806 A.2d 1121, cert. denied, 262 Conn. 921, 922, 812 A.2d 865 (2002).

The uncontroverted testimony at the trial, however, indicated that prior to the Nagles’ purchasing 79 Osga Lane and lot 19, Bessette permitted the plaintiffs to park their vehicles on lot 19. Bessette testified that he had agreed to let the plaintiffs use lot 19 to park their vehicles until he sold 79 Osga Lane and lot 19. As the court stated during the testimony of Bessette, “[apparently [the plaintiffs] parked there with his permission before he sold it to [the Nagles].” (Emphasis added.) Furthermore, Robert Berube, on cross-examination, admitted that it had been implied to him that he could park his vehicles on lot 19. Accordingly, because the plaintiffs admitted that they had permission to park their vehicles on lot 19 from the time they purchased 83 Osga Lane in 1987 until the time the Nagles purchased 79 Osga Lane and lot 19 in 2000, the plaintiffs did not adversely use lot 19 for the statutory requisite of fifteen years to establish an easement by prescription. See Sachs v. Toquet, 121 Conn. 60, 66, 183 A. 22 (1936). We conclude, therefore, that the court improperly found a prescriptive easement in favor of the plaintiffs.

IV

On cross appeal, the plaintiffs claim that the court improperly found that they did not meet their burden of proof on their claims of nuisance, malicious erection of a structure and intentional infliction of emotional distress. We disagree.

The court’s memorandum of decision reveals the following facts that are relevant to our resolution of the plaintiffs’ claim. Shortly after the Nagles purchased their property, they temporarily erected a chain-link dog kennel on 79 Osga Lane for their four dogs. The kennel was ten feet by ten feet in size and was erected approximately seven and one-half feet from the plaintiffs’ house. The plaintiffs claimed that the dogs barked constantly. The structure was in that location for six to eight weeks when it was then moved to another location on the Nagles’ property.

At trial, the plaintiffs claimed that the Nagles had erected the kennel near their house deliberately to torment them. Louis Nagle testified that he had placed the kennel near the plaintiffs’ property line because that was the flattest area on his property. Sandra Nagle had recently had shoulder surgery, and another location would have been difficult for her to access. Louis Nagle further testified that as soon as his wife recuperated, he moved the kennel away from the plaintiffs’ property line to another location. The court found that the plaintiffs had failed to prove their case with respect to their claims of nuisance, malicious erection of a structure and intentional infliction of emotional distress. We agree.

A

The plaintiffs first claim that the court improperly found that they had failed to establish that the Nagles’ placing the dog kennel near their property line amounted to a nuisance. We disagree.

“A private nuisance is a nontrespassory invasion of another’s interest in the private use and enjoyment of land. . . . The law of private nuisance springs from the general principle that [i]t is the duty of every person to make a reasonable use of his own property so as to occasion no unnecessary damage or annoyance to his neighbor. . . . The essence of a private nuisance is an interference with the use and enjoyment of land.” (Citations omitted; internal quotation marks omitted.) Pestey v. Cushman, 259 Conn. 345, 352, 788 A.2d 496 (2002).

In Pestey, the court formulated the following standard for a private nuisance: “[A] plaintiff must show that the defendant’s conduct was the proximate cause of an unreasonable interference with the plaintiffs use and enjoyment of his or her property. The interference may be either intentional . . . (nuisance is created intentionally if defendant intends act that brings about condition found to be nuisance); or the result of the defendant’s negligence. . . . Whether the interference is unreasonable depends upon a balancing of the interests involved under the circumstances of each individual case. In balancing the interests, the fact finder must take into consideration all relevant factors, including the nature of both the interfering use and the use and enjoyment invaded, the nature, extent and duration of the interference, the suitability for the locality of both the interfering conduct and the particular use and enjoyment invaded, whether the defendant is taking all feasible precautions to avoid any unnecessary interference with the plaintiffs use and enjoyment of his or her property, and any other factors that the fact finder deems relevant to the question of whether the interference is unreasonable. No one factor should dominate this balancing of interests; all relevant factors must be considered in determining whether the interference is unreasonable.

“The determination of whether the interference is unreasonable should be made in light of the fact that some level of interference is inherent in modem society. There are few, if any, places remaining where an individual may rest assured that he will be able to use and enjoy his property free from all interference. Accordingly, the interference must be substantial to be unreasonable.

“Ultimately, the question of reasonableness is whether the interference is beyond that which the plaintiff should bear, under all of the circumstances of the particular case, without being compensated.” (Citations omitted; internal quotation marks omitted.) Id., 361-62. Whether an interference is reasonable or unreasonable is a question of fact to be decided by the trier of fact. Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 580, 657 A.2d 212 (1995). The trier of fact’s determination of a question of fact will not be overturned unless it is clearly erroneous. See Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 538-39, 833 A.2d 883 (2003).

There was conflicting evidence as to why the Nagles chose that location for the kennel. “Where there is conflicting evidence ... we do not retry the facts or pass upon the credibility of the witnesses. . . . The probative force of conflicting evidence is for the trier to determine. ... 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 and, therefore, is free to accept or reject, in whole or in part, the testimony offered by either party.” (Internal quotation marks omitted.) DiVito v. DiVito, 77 Conn. App. 124, 138, 822 A.2d 294, cert. denied, 264 Conn. 921, 828 A.2d 617 (2003).

Accordingly, we cannot say that the court improperly found that the plaintiffs had failed to meet their burden of proof to establish that the Nagles’ temporary placement of the dog kennel near the plaintiffs’ property line was a nuisance.

B

The plaintiffs next argue that the court improperly found that they had failed to meet their burden of proof as to their claim for malicious erection of a structure in violation of General Statutes § 52-570. We disagree.

Section 52-570 provides: “An action may be maintained by the proprietor of any land against the owner or lessee of land adjacent, who maliciously erects any structure thereon, with intent to annoy or injure the plaintiff in his use or disposition of his land.” It is the plaintiffs’ contention that the Nagles violated § 52-570 by erecting the dog kennel near their property line. As stated previously, there was conflicting testimony about the reasons behind the Nagles’ decision to temporarily erect the dog kennel near the plaintiffs’ property line. It was within the court’s discretion which testimony to credit.

Accordingly, because there was evidence that the Nagles did not intend to annoy or to injure the plaintiffs when the Nagles placed the kennel near the property line, the court’s decision that the plaintiffs had failed to establish that the Nagles maliciously erected the dog kennel was not improper.

C

The plaintiffs next claim that the court improperly concluded that they had failed to meet their burden of proof on their claim of intentional infliction of emotional distress. We disagree.

“As an initial matter, we set forth the standard of review and legal principles that guide our resolution of that issue. In determining whether a plaintiff may maintain an action for intentional infliction of emotional distress, the plaintiff must establish four elements. 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 plaintiffs distress; and (4) that the emotional distress sustained by the plaintiff was severe. . . . Whether a defendant’s conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine. . . . Only where reasonable minds disagree does it become an issue for the jury. . . . 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.” (Internal quotation marks omitted.) Heim v. California Federal Bank, 78 Conn. App. 351, 364-65, 828 A.2d 129, cert. denied, 266 Conn. 911, 832 A.2d 70 (2003).

We cannot say that the Nagles’ temporarily erecting the dog kennel near the plaintiffs’ property line was conduct that was “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.” (Internal quotation marks omitted.) Id., 365. Accordingly, the court did not improperly find that the plaintiffs had failed to prove their case with respect to their claim of intentional infliction of emotional distress.

The judgment is reversed only as to the award of $15,000 in damages to the plaintiffs and the finding of a parking easement in favor of the plaintiffs and the case is remanded for a hearing in damages with respect to any diminution in value of the plaintiffs’ land as a result of the right-of-way across their property to Pachaug Pond. The judgment is affirmed in all other respects.

In this opinion FOTI, J., concurred.

SCHALLER, J.,

dissenting in part. Although I agree with the majority’s resolution of claims I, II and IV, I do not agree to reverse the trial court’s determination that the plaintiffs, Robert Berube and Debra Berube, established their right to a prescriptive parking easement. The court concluded that the plaintiffs had “an easement across lot 19 [which is owned by the defendants Louis Nagle and Sandra Nagle] for all purposes, including ingress, egress, parking and any other appropriate use. ” (Emphasis added.) Although the court made minimal findings pertaining to that issue, the defendant Donald Bessette, Sr., and the Nagles failed to file a motion for articulation of the court’s decision.

On appeal, the defendants raise two vague challenges to that conclusion. They first claim that the court improperly provided for a parking easement because it was “in the nature of an ownership of property rather than an easement.” They complain that the court so concluded “without explanation.” They next claim that the parking easement was found “without any legal foundation or authority for the same.” In presenting those claims, the defendants raise essentially factual questions. Their briefing of the two claims fails to shed light on the underlying issues.

The majority, nonetheless, reverses the court’s conclusion on the ground that certain “uncontroverted testimony at the trial” indicated that Bessette had given the plaintiffs permission to park on lot 19. The majority also relies on an offhand comment made by the court “during the testimony of Bessette” to the effect that the plaintiffs had permission to park on the lot.

As to the first ground, the “uncontroverted testimony” consists of the following testimony by Robert Berube:

“[The Defendants’ Counsel]: Well, how do you reconcile the deed description of 50 by 150 with the triangular parcel?
“[The Witness]: Sir, it was in the course of walking the lot and observing it, and where the parking was. It was implied to us that it was ours. I believed it was ours.
“[The Defendants’ Counsel]: Implied to you by whom?
“[The Witness]: By Mr. Bessette.
“[The Defendants’ Counsel]: It is your claim that Mr. Bessette told you that you owned the triangular parcel?
“[The Witness]: No, sir. That’s not what he said.
“[The Defendants’ Counsel]: Well, what exactly did Mr. Bessette say?
“[The Witness]: When we walked the land, the property was described as a whole block, running from Osga Lane to the pond.” (Emphasis added.)

That series of questions and answers hardly constitutes clear and unambiguous testimony that Bessette gave permission to use the property for parking purposes. To the contrary, it suggests that the Berubes had a right to park on the lot. As to the court’s casual remark during the trial testimony concerning permission, an incidental comment by the court made in the course of trial testimony does not, under any circumstances, constitute a.finding. Even if it did, the court may always revaluate an earlier finding and change its mind. See generally Whiteside v. State, 148 Conn. 77, 82, 167 A.2d 450 (1961).

Whether a trier of fact could find that the evidence established a permissive use is beside the point. The court in this case, in concluding that the plaintiffs had established their claim of a prescriptive easement, unmistakably rejected any evidence tending to establish permissive use. It would not otherwise have concluded that the plaintiffs’ use was prescriptive. It is not appropriate for us, in discharging our appellate role, to reverse the court’s decision on the basis of an interpretation of the evidence that the court clearly rejected. Doing so would place this court in the position of making its own findings and, in effect, second-guessing the trial court as to the evidence. See State v. Porter, 76 Conn. App. 477, 502, 819 A.2d 909, cert. denied, 264 Conn. 910, 826 A.2d 181 (2003). I believe that we have no choice, under the circumstances, but to affirm the judgment of the trial court on that issue.

For the foregoing reasons, I respectfully dissent.

       Greg LaLummier also was a defendant, in the underlying proceedings. On April 9,2003, we granted the motion of LaLummier’s counsel for permission to withdraw his appearance. On the same date, we also ordered, sua sponte, that the cross appeal would be considered on the basis of the briefs filed by the plaintiffs, the Nagles and Bessette, the record, and oral argument by the plaintiffs, the Nagles and Bessette, unless LaLummier filed an appearance and a brief on or before April 24, 2003. LaLummier did not file an appearance or brief. Accordingly, we consider this appeal and cross appeal only on the record, the oral arguments presented and the briefs that were filed.

       The properties that are now 79 Osga Lane and 83 Osga Lane were subdivided by Bessette from one parcel that was known as lot 6.

       The following colloquy took place between Robert Berube and the defendants’ counsel:
      “[The Defendants’ Counsel]: And so, you knew you did not own the triangular parcel of land [lot 19] that sits to the west of your property, isn’t that true?
      “[The Witness]: No, sir.
      “[The Defendants’ Counsel]: Well, how do you reconcile the deed description of 50 by 150 with that triangular parcel?
      “[The Witness]: Sir, it was in the course of walking the lot and observing it, and where the parking was. It was implied to us that it was ours. I believed it was ours.
      “[The Defendants' Counsel]: Implied to you by whom?
      “[The Witness]: By Mr. Bessette.
      “[The Defendants’ Counsel]: It is your claim that Mr. Bessette told you that you owned the triangular parcel?
      “[The Witness]: No, sir. That’s not what he said.
      “[The Defendants’ Counsel]: Well, what exactly did Mr. Bessette say?
      “[The Witness]: When we walked the land, the property was described as a whole block, running from Osga Lane to the pond.” (Emphasis added.)

       Because we conclude that the court properly found that the plaintiffs did not meet their burden of proof on their claims of nuisance, malicious erection of a structure and intentional infliction of emotional distress, we need not address the plaintiffs’ claim that the court improperly failed to award them punitive or exemplary damages on the basis of such claims.