author: SHELDON, J.

text:
    AGNES TARGONSKI ET AL. v. WALTER A. CLEBOWICZ
    (AC 33834)
    DiPentima, C. J., and Bear and Sheldon, Js.

      Argued November 29, 2012
    officially released April 23, 2013

      JuriE. Taalman, with whom, on the brief, was Timothy Brignole, for the appellants (plaintiffs).

      Elizabeth M. Cristofaro, with whom, on the brief, was Sandra Snaden Kuwaye, for the appellee (defendant).
   Opinion

SHELDON, J.

In this action for legal malpractice, the plaintiffs, Agnes Targonski and Krzysztof Targonski, appeal from the summary judgment rendered against them in favor of the defendant, Walter A. Clebowicz, an attorney, on the ground that their action is barred by the general three year tort statute of limitations, General Statutes § 52-577. On appeal, the plaintiffs claim that summary judgment was improper because the evidence before the trial court raised a genuine issue of material fact as to whether the continuing course of conduct doctrine tolled the statute of limitations. Because we agree with the plaintiffs, we reverse the judgment of the trial court.

The following facts and procedural history are necessary to our disposition of this appeal. Between April 18, 2004, and June 9, 2004, the defendant represented the plaintiffs with respect to a real estate transaction to purchase an undeveloped building lot on Indian Hill Road in Higganum (premises) together with a right-of-way over an adjacent lot retained by the seller, Karen Delahunty, for use as a driveway (right-of-way). On April 18,2004, the plaintiffs and Delahunty entered into a written purchase and sale agreement with respect to the premises and the right-of-way (agreement), which was conditioned expressly upon both Delahunty’s provision of the right-of-way and the plaintiffs’ promise to build a house on the premises of more than 2000 square feet. Delahunty retained attorney Thomas E. Cronan to represent her in connection with the transaction.

When, on June 9, 2004, the defendant conducted the closing on behalf of the plaintiffs, he was aware of the terms and conditions of the agreement, including, inter alia, its right-of-way contingency. The warranty deed for the premises (deed) that he ultimately obtained from Delahunty on behalf of the plaintiffs, however, made no mention of the right-of-way. Even so, when the plaintiffs asked the defendant, after the closing, if the right-of-way had been included in the deed, the defendant assured them that they “need not worry about it.” The plaintiffs understood the defendant’s response to mean that they in fact had acquired the right-of-way.

On several occasions after June 9, 2004, Cronan contacted the defendant in writing to advise him that the parties had not yet incorporated the right-of-way into the deed and to propose specific steps that might be taken to cure the problem. In the first such communication, a letter dated November 9,2004, Cronan proposed that the parties execute a contract addendum and easement/maintenance agreement in order to correct the omission of the right-of-way from the deed. To facilitate the implementation of this proposal, Cronan attached copies of a proposed contract addendum and a proposed easement/maintenance agreement to his letter and asked the defendant to call him to discuss them. The defendant never responded to this letter. Accordingly, four weeks later, in a follow-up letter to the defendant dated December 7,2004, Cronan repeated his offer to cure the omission of the right-of-way from the deed by having the plaintiffs and his client enter into an easement agreement. The defendant failed to respond to this letter as well. Finally, in a third letter dated December 22, 2004, Cronan informed the defendant, with regret, that, since there had as yet been no response to his proposal, “your clients will not enjoy a right of way over my client’s lot unless and until we have resolved the issue of a written easement agreement.” Despite this clear warning, the defendant never responded to any of Cronan’s letters, never informed the plaintiffs of their existence or their contents, and never took any other action to correct or apprise the plaintiffs of the omission of the right-of-way from the deed.

The plaintiffs subsequently constructed a house on the premises. Because the plaintiffs built their house too close to the setback line, however, the town required the plaintiffs to acquire additional property from Delahunty in order to conform to zoning regulations and obtain a certificate of occupancy. Thus, on August 25, 2005, the plaintiffs purchased an additional 48.61 square feet of property from Delahunty, who was still represented by Cronan. Thereafter, on September 20, 2005, the defendant represented the plaintiffs in connection with the refinancing of their enlarged property, by which they converted the construction loan, with which they had financed the purchase of the premises and the construction of their new home, into a home mortgage loan.

In October, 2005, on the basis of the defendant’s alleged misrepresentation concerning the creation of the right-of-way, the plaintiffs constructed a stone wall on that portion of Delahunty’s adjacent property over which they believed that they had a right-of-way.

On August 1, 2008, nearly three years after the plaintiffs finished building the stone wall, the defendant received a letter from Cronan claiming that it had been improperly constructed on Delahunty’s property. Upon receipt of the letter, the defendant for the first time informed the plaintiffs that they had no right-of-way over Delahunty’s property and that she had a claim against them for unauthorized use of her property. On September 23, 2008, Cronan sent the defendant a letter, which the defendant subsequently forwarded to the plaintiffs, setting forth specific allegations of trespass and nuisance upon which Delahunty intended to seek injunctive relief against them. On September 29, 2008, the defendant finally sent Cronan a letter, in an unsuccessful attempt to resolve the alleged trespass and nuisance issues arising from the plaintiffs’ use of Delahunty’s property. Thereafter, on October 2, 2008, to halt the plaintiffs’ allegedly unauthorized use of her property, Delahunty, through Cronan, caused the plaintiffs to be served with an application for a temporary injunction and an order to show cause. Although the plaintiffs initially asked the defendant to represent them in connection with that matter, they later terminated his services upon discovering that he had failed to include the right-of-way in their deed.

On March 6, 2009, the plaintiffs filed the complaint in the present action against the defendant, claiming in relevant part that his conduct constituted negligence and negligent misrepresentation. In their eomplaint, the plaintiffs alleged that the defendant, after negligently failing to include the right-of-way in their deed, engaged in a continuous course of conduct to prolong the harm flowing from his drafting error by failing to respond to Cronan’s letters proposing to cure the defective deed by having them enter into an easement agreement with Delahunty. The defendant, by way of special defense, alleged that § 52-577 barred the plaintiffs’ claims against him because his representation of them with respect to their purchase of the premises had ended in July, 2004, more than three years before this action was commenced.

On January 31, 2011, the defendant moved for summary judgment on the plaintiffs’ claims against him, arguing that those claims, as pleaded in the plaintiffs’ complaint, were barred by the statute of limitations. In support of his motion, the defendant argued that the plaintiffs could not invoke the continuing representation doctrine to toll the statute of limitations for two reasons: first, that doctrine is limited in application to litigation matters; and second, the plaintiffs did not present evidence raising a genuine issue of material fact that the defendant continued to represent them in the same matter wherein he allegedly committed malpractice after the June 9, 2004 closing. The defendant addressed the plaintiffs’ claim that the continuing course of conduct doctrine tolled the statute of limitations by arguing in a footnote that the doctrine is not applicable where, as alleged here, an attorney’s negligence involved only the drafting of a document and subsequent failure to warn his clients about the consequences of such negligence. The plaintiffs objected to the motion, arguing that the continuous representation and continuing course of conduct doctrines tolled the statute of limitations.

The plaintiffs were the only parties to submit evidence on the motion. Appended to their objection, such evidence included: (1) certified copies of excerpts from their own and the defendant’s depositions in this case; (2) a copy of the 2004 purchase and sale agreement and deed; (3) copies of all written communications from Cronan to the defendant from November 9, 2004, through October 1, 2008; and (4) a copy of the defendant’s letter to Cronan, dated September 29, 2008.

The court heard argument on the motion on April 4, 2011. The court subsequently granted the motion, rendering judgment in favor of the defendant in a memorandum of decision issued on July 18,2011. With respect to the plaintiffs’ claim under the continuous representation doctrine, the court ruled that, even if the defendant’s later representation of the plaintiffs on their refinancing tolled the statute of limitations beyond the date of the defendant’s initial drafting error in June, 2004, the defendant was entitled to summary judgment because there was no genuine issue of material fact that the defendant did not continue to represent the plaintiffs after the refinancing, which took place on September 20, 2005, more than three years before this action was commenced. With respect to the plaintiffs’ claim under the continuing course of conduct doctrine, the court ruled that that doctrine did not toll the statute of limitations either because the defendant’s alleged negligence had occurred only at and immediately after the June, 2004 closing, or because no evidence was presented to establish that the defendant owed the plaintiffs any continuing duty thereafter. The court thus concluded that the defendant was entitled to summary judgment because the plaintiffs commenced this action outside of the three year limitation period prescribed by § 52-577. After the court denied their ensuing motion for reconsideration and reargument on August 12, 2011, the plaintiffs filed this appeal.

“This court’s review of a trial court’s granting of a motion for summary judgment is plenary in nature. . . . Our task is to determine whether [the trial court’s] conclusions are legally and logically correct and find support in the facts that appear in the record. . . . Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. • • • The party moving for summary judgment has the burden of showing . . . that the party is . . . entitled to judgment as a matter of law.” (Internal quotation marks omitted.) Lee v. Brenner, Saltzman & Wattman, LLP, 128 Conn. App. 250, 254-55, 15 A.3d 1215, cert. denied, 301 Conn. 926, 22 A.3d 1277 (2011). “Summary judgment may be granted where the claim is barred by the statute of limitations.” (Internal quotation marks omitted.) Flannery v. Singer Asset Finance Co., LLC, 128 Conn. App. 507, 512-13, 17 A.3d 509, cert. granted on other grounds, 302 Conn. 902, 23 A.3d 1242 (2011). “The question of whether a party’s claim is barred by the statute of limitations is a question of law, which this court reviews de novo.” (Internal quotation marks omitted.) Lee v. Brenner, Saltzman & Wattman, LLP, supra, 255.

“Although allowing a statute of limitations defense may result in meritorious claims being foreclosed, that must be so. A statute of limitations promotes two important interests: (1) it reflects a policy of law, as declared by the legislature, that after a given length of time a [defendant] should be sheltered from liability and furthers the public policy of allowing people, after the lapse of a reasonable time, to plan their affairs with a degree of certainty, free from the disruptive burden of protracted and unknown potential liability . . . and (2) to avoid the difficulty in proof and record keeping which suits involving older [claims] impose.” (Internal quotation marks omitted.) Flannery v. Singer Asset Finance Co., LLC, supra, 128 Conn. App. 513.

The claims underlying the plaintiffs’ present action were based on negligence, and thus were subject to the three year limitation period set forth in § 52-577. “This court has determined that [§] 52-577 is an occurrence statute, meaning that the time period within which a plaintiff must commence an action begins to run at the moment the act or omission complained of occurs. . . . Moreover, our Supreme Court has stated that [i]n construing our general tort statute of limitations, General Statutes § 52-577, which allows an action to be brought within three years from the date of the act or omission complained of, we have concluded that the history of that legislative choice of language precludes any construction thereof delaying the start of the limitation period until the cause of action has accrued or the injury has occurred. . . . The three year limitation period of § 52-577, therefore, begins with the date of the act or omission complained of, not the date when the plaintiff first discovers an injury.” (Internal quotation marks omitted.) Piteo v. Gottier, 112 Conn. App. 441, 445, 963 A.2d 83 (2009).

Here, the defendant’s alleged acts and omissions at and immediately after the June 9,2004 closing triggered the statute of limitations. The trial court found that the plaintiffs did not commence this action until February 26, 2009, which was outside of the three year limitation period prescribed by § 52-577. Accordingly, because more than three years had passed since the date of the defendant’s alleged negligence before the plaintiffs served their complaint, the plaintiffs’ claims can survive the defendant’s challenge under the statute of limitations only if the statute was tolled before the limitation period expired.

On appeal, the plaintiffs claim that there is a genuine issue of material fact as to whether the statute of limitations was tolled in this case by the continuing course of conduct doctrine. Specifically, the plaintiffs argue that the defendant breached a continuing duty owed to them when, after engaging in his initial negligent conduct, he learned of the error in the deed but failed to take action to correct it despite having the opportunity to do so. We agree.

“The question of whether a party’s claim is barred by the statute of limitations is a question of law, which this court reviews de novo. . . . The issue, however, of whether a party engaged in a continuous course of conduct that tolled the running of the statute of limitations is a mixed question of law and fact. . . . We defer to the trial court’s findings of fact unless they are clearly erroneous.” (Internal quotation marks omitted.) Lee v. Brenner, Saltzman & Wallman, LLP, supra, 128 Conn. App. 256-57.

Section 52-577 “is a statute of repose in that it sets a fixed limit after which the tortfeasor will not be held liable and in some cases will serve to bar an action before it accrues. . . . Nonetheless, [w]hen the wrong sued upon consists of a continuing course of conduct, the statute does not begin to run until that course of conduct is completed.” (Internal quotation marks omitted.) Vanliner Ins. Co. v. Fay, 98 Conn. App. 125, 139-40, 907 A.2d 1220 (2006).

“[I]n order [t]o support a finding of a continuing course of conduct that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto. That duty must not have terminated prior to commencement of the period allowed for bringing an action for such a wrong .... Where we have upheld a finding that a duty continued to exist after the cessation of the act or omission relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act.” (Internal quotation marks omitted.) Watts v. Chittenden, 301 Conn. 575, 584, 22 A.3d 1214 (2011). “Therefore, a precondition for the operation of the continuing course of conduct doctrine is that the defendant must have committed an initial wrong upon the plaintiff.” (Internal quotation marks omitted.) Id., 585. “A second requirement for the operation of the continuing course of conduct doctrine is that there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto.” (Internal quotation marks omitted.) Id. “The doctrine of continuing course of conduct as used to toll a statute of limitations is better suited to claims where the situation keeps evolving after the act complained of is complete . . . .” Sanborn v. Greenwald, 39 Conn. App. 289, 297-98, 664 A.2d 803, cert. denied, 235 Conn. 925, 666 A.2d 1186 (1995).

Here, the parties agree that the allegations of the plaintiffs’ complaint are sufficient to state a claim of legal malpractice based upon the defendant’s negligent drafting of the deed without providing for a right-of-way over the seller’s property. They also agree that the plaintiffs commenced this action more than three years after the alleged malpractice was committed. Accordingly, the plaintiffs’ appeal turns on our resolution of the second element of the continuing course of conduct doctrine, to wit: whether the defendant, by his conduct after the alleged malpractice, breached a continuing duty to the plaintiffs that was related to his initial wrong.

As general matter, once the attorney-client relationship ends, the prior representation does not give rise to any continuing duty. Id., 297. Thus, in Sanborn, this court held that “ [t]here is no tolling of statutes of limitations in either tort or contract actions for the failure of an attorney to tell a client that a document drafted by the attorney could be inaccurate because, once the representation of the client is complete and the document executed, any warning would be ineffective.” Id. In that case, however, this court, in deciding not to apply the continuing course of conduct doctrine, explained that no duty existed between an attorney and a client after the attorney negligently drafted a document because the client did not offer evidence that (1) the attorney subsequently learned that his drafting was negligent; (2) the attorney was capable of remedying any problems associated with the negligent drafting; and (3) any warning from the defendant to the plaintiff would be effective. Id. The clear implication of this holding is that even after an attorney’s representation of a client ends, he owes a duty to his client, which relates back to his original wrong of rendering negligent services to the client, to correct the results of such prior negligence if he later learns of the negligence at a time when he has the power to remedy the problems arising from it. See Haas v. Haas, 137 Conn. App. 424, 433, 48 A.3d 713 (2012) (“continuing wrongful conduct may include acts of omission as well as affirmative acts of misconduct” [internal quotation marks omitted]). By force of simple logic, this duty continues until such time as he takes action to cure his prior negligence or the opportunity to cure such prior negligence ceases to exist.

Here, then, if the trial court received competent evidence tending to show that, after negligently failing to include the right-of-way in the deed, the defendant learned of his negligence but failed to correct it when he had the opportunity to do so, it should have denied the defendant’s motion for summary judgment if the evidence also showed that his opportunity to correct the negligence extended to a point less than three years before the commencement of this action.

In the present case, the plaintiffs in fact have presented evidence, in the form of written communications between the defendant and Cronan, tending to establish that, upon learning of his earlier negligence in drafting the deed, the defendant breached an ongoing duty to the plaintiffs to correct his prior error at a time when he had the opportunity to do so. Specifically, the evidence shows that, after the June 9, 2004 closing, Cronan notified the defendant of his drafting error on multiple occasions and also advised him that his error could be rectified by having his clients, the plaintiffs, enter into an easement agreement with Delahunty. Because this offer was not withdrawn until Delahunty filed suit against the plaintiffs to enjoin their farther use of the driveway in 2008, the defendant’s opportunity to cure his negligence lasted until well within three years of the commencement of this action. The defendant’s failure to inform the plaintiffs of the defects in their deed or of their opportunity to cure them, by the process suggested by Cronan or otherwise, constituted later wrongful conduct in violation of a continuing duty related to the defendant’s original breach. See Sanborn v. Greenwald, supra, 39 Conn. App. 296 (in cases in which continuing course of conduct doctrine applied to toll statute of limitations, “the plaintiffs injury was perpetuated, enhanced and even caused by the breach of a [continuing] duty on the part of the defendant”).

On appeal, the defendant argues that the letter and faxes from Cronan to the defendant are unauthenticated and inadmissible, and thus cannot be considered by the court. Without such evidence, he further argues, there was no competent proof before the trial court that the challenged communications, even if written in 2004, were ever received by the defendant in that time frame, thus giving rise to a continuing duty on his part to correct his prior negligence in drafting the deed while there was an opportunity to do so. We disagree.

Before a document may be considered by the court in opposition to a motion for summary judgment, the proponent need only advance “evidence sufficient to support a finding” that the proffered evidence is what it is claimed to be. Conn. Code Evid. § 9-1 (a). A writing may be authenticated by an admission of the opposing party at a deposition. See id., commentary (a) (7); C. Tait & E. Prescott, Connecticut Evidence (4th Ed. 2008) § 9.2.1, pp. 621-22. Here, appended to their opposition to the defendant’s motion for summary judgment, the plaintiffs submitted a certified copy of the deposition of the defendant during which the defendant identified a letter and two faxes he had received from Cronan in 2004. Specifically, during his deposition, the defendant testified that, in 2004, Cronan had notified him in writing that the plaintiffs “would not be receiving a right-of-way or an easement over [Delahunty’s property] that they expected . . . The defendant’s testimony at his deposition thus operated not only to authenticate the proffered letter and faxes, but also to establish that he had received them in 2004. The plaintiffs thus have presented competent evidence tending to establish that the defendant breached a continuing duty, which he owed the plaintiffs, to apprise them of his negligence in drafting the deed and cure the problems resulting from it while the opportunity to do so existed, that lasted until within three years of the plaintiffs’ commencement of this action. We thus conclude that it was improper for the trial court to have found, as a matter of law, that § 52-577 was not tolled by the defendant’s failure to cure his own negligence under the continuing course of conduct doctrine.

The judgment is reversed and the case is remanded for further proceedings according to law.

In this opinion the other judges concurred.

       General Statutes § 52-577 provides: “No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.”

       Because we agree with the plaintiffs that the evidence before the trial court raised a genuine issue of material fact as to whether the continuing course of conduct doctrine tolled the statute of limitations, we need not address their alternate claim for reversal of the judgment, which is based on the continuous representation doctrine.

       At her deposition, Agnes Targonski stated that before the closing, she explained to the defendant: “I dropped off a purchase and sales agreement. And I’m buying land to build a house, and that the only thing, other than the normal stuff that [the defendant] does, whatever [the defendant] does, to look at page 3 [of the agreement], and then there are contingency things to go on . . . paperwork. To look at those contingencies, and make sure they’re in effect because I need to get into my house. I need the right-of-way to get into my house.”

       At her deposition, Agnes Targonski stated that, at the conclusion of the closing, she “asked [the defendant] if he took care of the contingency, right-of-way, and the over 2000 square foot. And he’s, like, oh, I took care of it. And I said because I want an entrance to my house.”

       These communications were marked as exhibits during the defendant’s deposition and identified by him as documents he had received in 2004.

       The November 9, 2004 letter provided in relevant part: “I have attached a copy of a contract addendum whose provisions never made it into the deed.
      “I have also attached an unexecuted easement/maintenance agreement . . . which I suggest we use for your clients as well.”

       The December 7, 2004 letter provided in relevant part: “I have not received any response to my fax letter to you dated 11/9/04 ....
      “Does that mean that your clients are not interested in a formal easement agreement?”

       The December 22, 2004 letter provided in relevant part: “I write this letter with some regret but, the fact that my earlier faxes to your office . . . have met with no response, requires that I advise you that your clients will not ervjoy a right of way over my client’s lot unless and until we have resolved the issue of a written easement agreement.
      “I am sorry to have to take this position but the absence of any response whatsoever to my earlier attempts to resolve this matter leave me no other choice.”

       In her deposition, Agnes Targonski stated that, based on her recollection, the defendant did not represent the plaintiffs in their August 25, 2005 purchase of additional property.

       In 2007, believing that they owned the right-of-way, the plaintiffs paved a driveway over Delahunty’s property.

       The August 1, 2008 letter was addressed to the defendant and referred to the plaintiffs as the defendant’s clients.

       These communications between the defendant and Cronan, dated 2008, were marked as exhibits during the defendant’s deposition and identified by him as documents he had received in 2008.

       The plaintiffs’ revised complaint, dated June 10,2009, also alleged breach of fiduciary duty and breach of contract. On November 12, 2009, however, the court struck these counts and subsequently rendered judgment on them. They are not the subject of this appeal.

       In their complaint, the plaintiffs also alleged that the defendant continuously represented them until 2008.

       We note that the defendant’s January 7, 2011 answer alleged that the plaintiffs’ negligence and negligent misrepresentation counts were both barred by § 52-577. In his motion for summary judgment, however, the defendant claimed that § 52-577 barred the negligence count and General Statutes § 52-584 barred the negligent misrepresentation count. Section 52-584 provides: “No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed.” See footnote 18 of this opinion.

       In his answer to the plaintiffs’ revised complaint, by way of special defenses, the defendant also alleged that the plaintiffs had failed to mitigate their damages and that their damages had resulted from their own negligence because they added improvements on Delahunty’s property, which would have been unauthorized even if the right-of-way had been included in the deed.

       As an alternate ground for granting his motion for summary judgment, the defendant also argued that his alleged negligence, even if true, did not cause the plaintiffs’ damages because the unauthorized improvements at issue would have exceeded their use of Delahunty’s property had the right-of-way been included in the deed.

       The parties disagree as to what statute of limitations applies to the negligent misrepresentation claim. Although the defendant claims that General Statutes § 52-584, which has a two year statute of limitations, applies to this claim, this court has held that “[ajctions for legal malpractice based on negligence are subject to § 52-577, the tort statute of limitations. ” (Internal quotation marks omitted.) Weiner v. Clinton, 106 Conn. App. 379, 386, 942 A.2d 469 (2008). The defendant did plead, however, that the plaintiffs’ action was barred by § 52-577.

       As an alternative to entering into an easement agreement with Dela-hunty, as suggested by Cronan, the plaintiffs could have sought to enforce the written purchase and sale agreement that the parties had signed prior to the closing, on which the statute of limitations would not have expired until April 18, 2010. See General Statutes § 52-576 (a) (“[n]o action ... on any contract in writing, shall be brought but within six years after the right of action accrues”); American Express Centurion Bank v. Head, 115 Conn. App. 10, 15-16, 971 A.2d 90 (2009) (“[t]he elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages” [internal quotation marte omitted]); see also FCM Group, Inc. v. Miller, 300 Conn. 774, 799, 17 A.3d 40 (2011) (“[u]nder the doctrine of equitable conversion a contract for the sale of land vests equitable title in the vendee” [internal quotation marks omitted]).

       The following is a transcript of the relevant portions of the defendant’s deposition:
      “Q. Do you recall ever, back in 2004 to August of 2005, explaining to the [plaintiffs] that, in fact, they would not be receiving a right-of-way or an easement over this area that they expected?
      “A. No, I do not.
      “Q. Do you recall any correspondence at all from attorney Cronan indicating that that would not be forthcoming?
      “A. There was some faxes from attorney Cronan.
      “Q. And when were those—I’m looking at the next correspondence, which is September 23 [2008]. Is that the correspondence that you’re referring to? . . .
      “A. No. There would be a 2004 correspondence. They’re in there. . . .
      “Q. I have a September 23, 2008 correspondence. Then the next one is September 29, 2008. Then there’s a correspondence dated October 1, 2008.
      “A. I believe there’s some attachments to that.
      “Q. All right. There is a December 22, 2004 correspondence to you, a December 7, 2004 correspondence and [a November 4, 2004], Those three correspondences are all after the purchase of the property?
      “A. Correct.”


source: Caselaw Access Project

license: Public Domain

text:
    PATRICIA FAULKNER v. DANIEL DADDONA ET AL.
    (AC 33854)
    Beach, Robinson and Sheldon, Js.

      Argued December 13, 2012
    officially released April 23, 2013

      David Compagnone, for the appellant (plaintiff).

      Jeffrey G. Schwartz, for the appellees (defendant Kevin Conard et al.).
   Opinion

SHELDON, J.

The plaintiff, Patricia Faulkner, brought an action to recover damages for injuries she claims to have suffered in a motor vehicle accident on Route 262 in Watertown when she was thrown off the back of a motorcycle then being operated by Thomas Bouchard. The plaintiff now appeals from the judgment of the trial court rendered after it granted the motion to strike filed by the defendants Kevin Conard, John Gavallas and the town of Watertown.

The plaintiff alleges that the accident occurred when, as she and Bouchard came upon the scene of a prior, unrelated motor vehicle accident to which Watertown police Officer Conard had already responded, a tow truck owned by Daniel Daddona, doing business as Watertown Auto Body, then being operated by his employee, Gregory Moscaritolo, suddenly pulled out onto and across the highway, blocking both lanes of travel. The truck’s unexpected movement allegedly forced Bouchard to swerve his motorcycle behind the truck to avoid a collision, which caused the motorcycle to skid out of control and the plaintiff to be ejected from it onto the pavement.

The plaintiff made two sets of claims in this action. The first were claims against Daddona and Moscaritolo, based upon alleged negligence by the latter in operating Daddona’s tow truck at the time and place of the accident. The second were claims against the town of Water-town and two of its employees, Officer Conard and police Chief John Gavallas, based upon, inter alia, alleged breaches of duties to the plaintiff and other members of the public to properly secure the scene of the prior accident before the plaintiff came upon it and suffered her injuries and, more generally, to enforce certain town rules and regulations governing the performance of town towing services by private contractors.

With respect to Conard, who was present at the scene of the prior accident when the tow truck pulled out in front of Bouchard’s motorcycle and caused the plaintiffs fall and resulting injuries, the plaintiff claimed that Conard “had an obligation to secure the scene of [the preexisting accident] in order to protect persons at the accident scene and members of the general public from harm,” and that his failure to meet that obligation in several particular ways proximately caused her injuries. With respect to the town, the plaintiff made two claims, pursuant to General Statutes § 52-557n. First, she claimed that the town had failed to properly train and supervise its officers and to establish protocols and procedures to secure an accident scene. Second, she claimed that the town had failed to adequately oversee towing operations undertaken on behalf of the town by failing to ensure that the towing company maintained the proper level of liability insurance coverage on its truck. Finally, as to Gavallas, the plaintiff claimed that he, like the town, had breached his duty to oversee the rules and regulations governing the towing of motor vehicles, by failing to ensure that the towing company maintained the proper level of liability insurance coverage on its truck.

The defendants moved to strike all of the plaintiffs claims against them on two basic grounds. First, they argued that no such claim stated a legally cognizable cause of action against them; and second, they argued that even if any of the plaintiffs claims was legally cognizable, any such claim was based upon alleged violations of a discretionary governmental duty, and thus was barred by the doctrine of governmental immunity. The plaintiff objected to the defendants’ motion, arguing that all of her claims were legally cognizable, that no such claim could properly be challenged on the ground of governmental immunity on a motion to strike, and that even if a governmental immunity challenge could properly be brought on a motion to strike, none of her claims was vulnerable to such a challenge because each was either based upon the alleged breach of a ministerial duty or covered by the imminent harm, identifiable person exception to the governmental immunity doctrine.

On July 25, 2011, the court granted the defendants’ motion to strike, concluding in relevant part as follows: “The plaintiff was unable to direct this court to any case law which suggested a private tort duty based upon the negligent securing of an accident scene by police or the allegations . . . regarding the [town] of Watertown and/or its chief of police failing to ascertain that the tow operator had the amount of insurance set forth in his contract with the town. The court can find no private legal basis for the assertion of th[ose] claims .... However, even assuming [that the challenged claims] set forth causes of action, the plaintiff must still overcome the hurdle that the[y] . . . are barred by the doctrine of government immunity. . . . While the plaintiff claims that the acts which form the basis of the allegations set forth in [those claims] . . . are ministerial, the court finds that the allegations in the amended complaint relate to discretionary acts, not ministerial acts. In determining whether there was an imminent harm, identifiable person exception to such claimed immunity, the court finds that there was nothing apparent to . . . Conard or . . . Gavallas that the plaintiff would have been the subject of the alleged imminent harm.” When the plaintiff failed, in the wake of this ruling, to replead her stricken claims within the time required by law, the court rendered judgment in favor of those defendants. This appeal followed.

On appeal, the plaintiff presents two challenges to the court’s judgment as to three of the four counts that the court ordered stricken as to the defendants. First, she claims that the court improperly concluded that she had failed to set forth legally cognizable causes of action in those stricken counts. Second, she argues that the court improperly concluded that such claims were barred by governmental immunity because they were all based upon alleged violations of ministerial rather than discretionary duties. We conclude that the plaintiff’s challenged claims against the defendants were all based upon alleged violations of discretionary duties and thus that they are all barred by governmental immunity. Accordingly, we conclude that the trial court did not err in granting the defendants’ motion to strike and in rendering judgment in their favor.

“Because a motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court, our review of the court’s ruling on the [defendants’ motion] is plenary. . . . We take the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency. . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied. . . . Moreover, we note that [w]hat is necessarily implied [in an allegation] need not be expressly alleged. ... It is fundamental that in determining the sufficiency of a complaint challenged by a defendant’s motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted. . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically. . . .

“The [common-law] doctrines that determine the tort liability of municipal employees are well established. . . . Generally, a municipal employee is hable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts. . . . Governmental acts are performed whohy for the direct benefit of the public and are supervisory or discretionary in nature. . . . The hallmark of a discretionary act is that it requires the exercise of judgment. . . . In contrast, [mjinisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion. . . .

“Municipal officials are immunized from liability for negligence arising out of their discretionary acts in part because of the danger that a more expansive exposure to liability would cramp the exercise of official discretion beyond the limits desirable in our society. . . . Discretionary act immunity reflects a value judgment that—despite injury to a member of the public—the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by the fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury. ... In contrast, municipal officers are not immune from liability for negligence arising out of their ministerial acts, defined as acts to be performed in a prescribed manner without the exercise of judgment or discretion. . . . This is because society has no analogous interest in permitting municipal officers to exercise judgment in the performance of ministerial acts. . . .

“The tort liability of a municipality has been codified in § 52-557n. Section 52-557n (a) (1) provides that [e]xcept as otherwise provided by law, a political subdivision of the state shall be hable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties .... Section 52-557n (a) (2) (B) extends, however, the same discretionary act immunity that applies to municipal officials to the municipalities themselves by providing that they will not be hable for damages caused by neghgent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law. . . .

“We have previously determined that governmental immunity must be raised as a special defense in the defendant’s pleadings. . . . Governmental immunity is essentially a defense of confession and avoidance similar to other defenses required to be affirmatively pleaded [under Practice Book § 10-50]. . . . The purpose of requiring affirmative pleading is to apprise the court and the opposing party of the issues to be tried and to prevent concealment of the issues until the trial is underway. . . . Nevertheless, [w]here it is apparent from the face of the complaint that the municipality was engaging in a governmental function while performing the acts and omissions complained of by the plaintiff, the defendant is not required to plead governmental immunity as a special defense and may attack the legal sufficiency of the complaint through a motion to strike. Determining whether it is apparent on the face of the complaint that the acts complained of are discretionary requires an examination of the nature of the alleged acts or omissions.” (Citations omitted; internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 317-22, 907 A.2d 1188 (2006).

It is clear from the plaintiffs complaint that the defendants were performing governmental functions when they engaged in the conduct therein complained of, and thus that the court properly relied upon the doctrine of governmental immunity in granting the defendants’ motion to strike those claims. The plaintiff contends initially that some of her claims against Conard involved alleged breaches of ministerial duties because they were based upon his alleged failure to enforce certain statutes or to follow certain provisions of the Water-town police department general orders. In fact, thirteen of the plaintiffs twenty allegations against Conard involved his alleged failure to enforce state statutes; and five involved his alleged failure to comply with provisions of the Watertown police department general orders. The fact that a claim is based upon a defendant’s alleged failure to enforce a statute, however, does not, in and of itself, make enforcement of that statute a ministerial duty. See Shore v. Stonington, 187 Conn. 147, 444 A.2d 1379 (1982). Rather, a police officer’s decision whether and how to enforce a statute necessarily requires an examination of the surrounding circumstances and a determination as to what enforcement action, if any, is necessary and appropriate in those circumstances. Such a decision thus invariably involves the exercise of judgment and discretion. Indeed, even if the command of a statute is mandatory, it is well settled that a police officer’s decision whether or not to enforce the statute in particular circumstances is a matter that requires the exercise of judgment and discretion. See id.

As for Conard’s alleged failure to comply with certain provisions of the Watertown police department general orders, they also do not impose mandatory duties upon police officers to take particular action in all circumstances. No such provision prescribes the particular manner in which an officer must always secure an accident scene. This, of course, is because all accident scenes are different from one another, and in fact are so different as to require that different measures be taken to secure them. Consistent with this reality, even the general orders which the plaintiff claims to have been violated are replete with directives to officers to take “appropriate” action, as “necessary” or “reasonable” in the attending circumstances, rather than prescribing a single, unalterable method for securing the scene. Such directives describe duties whose performance requires the exercise of judgment and discretion, for which the officer is entitled to governmental immunity.

The plaintiffs final claim against Conard, which is not based upon an allegation that he failed to enforce a statute or to follow a general order, is that he failed to “close the trunk lid on his Watertown Police Cruiser [to avoid] obscuring his emergency lights to oncoming traffic . . . .’’An officer’s determinations whether or not to activate his emergency fights at an accident scene and, if so, whether he should open his trunk lid if it might block oncoming motorists’ view of the lights, are clearly judgments requiring the officer to assess the circumstances at the scene, which, in turn, require the exercise of judgment as to how best to proceed. The making of such discretionary determinations thus involves the performance of a governmental duty for which the defendants are entitled to governmental immunity. Therefore, Conard is entitled to governmental immunity as to each and every one of the plaintiffs specifications of negligence against him.

Turning to the plaintiffs allegations against the town and Gavallas, the plaintiffs claims of negligence against them stemmed from their alleged violation of various regulations and procedures for the towing of motor vehicles in the town. The plaintiff alleged that the town had a “duty to ensure that all rules and regulations for the towing of motor vehicles were followed” and that it breached that duty, inter alia, by failing to ensure that Moscaritolo had “experience in towing and recovery” and that Daddona had adequate insurance coverage on his tow truck. The plaintiff similarly alleged that Gavallas, acting in his capacity as the chief of police, had an “obligation to oversee the [Regulations and [procedures governing police towing of certain motor vehicles” and that he, like the town, breached that duty by failing, inter alia, to ensure that Moscaritolo had “experience in towing and recovery” and that Daddona had adequate insurance coverage. The trial court concluded that the plaintiff, by so pleading, had failed to “allege recognized causes of action” against the town and Gavallas, because she “was unable to direct this court to any case law which suggested a private tort duty based upon . . . the allegations . . . regarding the [town] and/or [Gavallas for] failing to ascertain that the tow operator had the amount of insurance set forth in his contract with the town.” The plaintiff did not thereafter seek to replead her complaint to address the deficiencies found by the trial court, nor did she seek an articulation of the court’s conclusion that she had failed to set forth cognizable causes of action. An examination of the plaintiffs complaint reveals that she did not allege that the negligence of the town and/or Gaval-las caused her injuries. “The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury.” (Internal quotation marks omitted.) Sic v. Nunan, 307 Conn. 399, 406, 54 A.3d 553 (2012). Even, then, if the plaintiff had properly pleaded a breach of one or more legal duties owed to her by the town and Gavallas, and if the breach of such a duty gave rise to a private cause of action by her, she failed to plead two essential elements of a negligence claim, to wit: causation and actual injury. Accordingly, we conclude that the court properly struck the plaintiffs claims against Gavallas and the town for failure to state a claim upon which relief could be granted.

The judgment is affirmed.

In this opinion the other judges concurred.

       Daniel Daddona and Gregory Moscaritolo, the other defendants named in this action, are not parties to this appeal. We therefore refer in this opinion to Conard, Gavallas and the town, collectively, as the defendants, and individually by name.

       General Statutes § 52-557n (a) (1) provides: “Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties . . . .”

       The allegations against the defendants are contained in counts two, three, four and five of the plaintiffs first amended complaint dated August 26, 2010.

       The plaintiff does not appeal from the court’s judgment striking her claim that the town failed to properly train and supervise its officers, and establish protocols and procedures to secure an accident scene.

       The plaintiff does not claim on appeal that her claims fell within the imminent harm, identifiable person exception to governmental immunity.

       We need not address the legal sufficiency of the plaintiffs claims against the defendants because, even if they are legally cognizable, they are barred by governmental immunity.

       The plaintiff claimed that Conard breached his duties in that “he failed to enforce [General Statutes] § 14-235 by allowing . . . Moscaritolo to operate his vehicle on the left side of the highway on a curve or upgrade . . . he failed to enforce [General Statutes] § 14-240 (b) by allowing . . . Moscar-itolo to operate his vehicle in proximity to another vehicle so as to impede the flow of traffic ... he failed to enforce [General Statutes] § 14-242 (a) by allowing . . . Moscaritolo to operate his vehicle from a direct course on a highway when such movement could not be performed with reasonable safety ... he failed to enforce [General Statutes] § 14-242 (a) by allowing . . . Moscaritolo to operate his vehicle without giving the appropriate signal in the manner provided in [General Statutes] § 14-244 ... he failed to enforce [General Statutes] § 14-242 (b) by allowing . . . Moscaritolo to operate his vehicle without giving the appropriate signal to turn left or right at least 100 feet prior to turning ... he failed to enforce [General Statutes] § 14-242 (c) by allowing . . . Moscaritolo to stop his vehicle without first giving the appropriate signal in the manner provided in [General Statutes] § 14-244 to the driver of any vehicle immediately to the rear when there is opportunity to give such signal ... he failed to enforce [General Statutes] § 14-242 (d) by allowing . . . Moscaritolo to turn his vehicle to proceed in the opposite direction upon a curve, where such vehicle cannot be seen by the driver of any other vehicle approaching from either direction within 500 feet ... he failed to enforce [General Statutes] § 14-242 (d) by allowing . . . Moscaritolo to turn his vehicle to proceed in the opposite direction upon the approach to a grade, where such vehicle cannot be seen by the driver of any other vehicle approaching from either direction within 500 feet ... he failed to enforce [General Statutes] § 14-242 (d) by allowing . . . Moscaritolo to turn his vehicle to proceed in the opposite direction near the crest of a grade, where such vehicle cannot be seen by the driver of any other vehicle approaching from either direction within 500 feet . . . he failed to enforce [General Statutes] § 14-243 (a) by allowing . . . Moscari-tolo to move his vehicle from a stopped position when such movement could not be made with reasonable safety and without interfering with other traffic ... he failed to enforce [General Statutes] § 14-243 (a) by allowing . . . Moscaritolo to move his vehicle from a stopped position when such movement could not be made with reasonable safety and without signaling as provided in § 14-244 ... he failed to enforce [General Statutes] § 14-243 (b) by allowing . . . Moscaritolo to back up his vehicle when such movement could not be made with reasonable safety and without interfering with traffic ... he failed to enforce [General Statutes] § 14-247 by allowing .. . Moscaritolo to operate his vehicle from an off road area without yielding the right of way to all vehicles approaching on such highway . . . .”

       The plaintiff claimed that Conard breached his duties in that “he failed to follow Watertown Police Department General Order 06-14, Section n, subsectionA, entitled ‘Procedure’, by not taking the appropriate enforcement actions for violations of traffic laws by . . . Moscaritolo . . . that occurred within his presence ... he failed to follow Watertown Police Department General Order 06-14, Directive V, section A, subsection 1, as a uniformed officer in a marked patrol unit not taking enforcement actions for violations of traffic laws by . . . Moscaritolo . . . that occurred within his view . . . he failed to follow Watertown Police Department General Order 06-14, Directive VI, section A, subsection 2, by not closing a section of the highway until the situation endangering the roadway safety could be corrected . . . he failed to follow Watertown Police Department General Order 06-14, Directive VI, section A, subsection 2, by not closing a section of the highway and utilizing flares and/or cones until the situation endangering the roadway safety could be corrected [and] he failed to follow Watertown Police Department General Order 06-15, Directive n, section A, by not positioning his cruiser to protect the vehicle and not using highway flares as needed.”

       The plaintiff claimed generally that Conard “failed to follow Watertown Police Department Procedure for securing an accident scene . . .


author: BEAR, J.

text:
    BANK OF NEW YORK, AS TRUSTEE (BS ALT A 2005-9) v. SONJA V. BELL ET AL.
    (AC 33649)
    Alvord, Bear and Sheldon, Js.

      Argued December 11, 2012
    officially released April 23, 2013

      Geoffrey K. Milne, with whom, on the brief, were James T. Shearin and Steven J. Stafstrom, Jr., for the appellant (plaintiff).

      J. Hanson Guest, for the appellee (named defendant).

      Johnathan S. Bell, pro se, the appellee (defendant).
   Opinion

BEAR, J.

The plaintiff, Bank of New York, as trustee for BS ALT A 2005-9, appeals from the judgment of the trial court holding the plaintiff in contempt for its failure to comply with discovery orders issued in response to the discovery requests filed by the defendants Sonja V. Bell and Johnathan S. Bell. On appeal, the plaintiff claims, inter alia, that the court improperly held it in contempt because the court lacked subject matter jurisdiction and, alternatively, that the court lacked the authority to issue discovery orders requiring the plaintiff to turn over documents that belonged to another entity. We agree with the plaintiffs second claim and, accordingly, reverse the judgment of the trial court.

The following facts set forth the relevant background of this appeal. On December 16, 2010, the trial court held the plaintiff in contempt, specifically finding that the failure of the plaintiff to respond fully to the defendants’ interrogatories and requests for production over a period of more than a year constituted a wilful violation of the court’s prior orders. The court stated that its orders met the requirements set by our Supreme Court in Millbrook Owners Assn., Inc. v. Hamilton Standard, 257 Conn. 1, 17-18, 776 A.2d 1115 (2001), of reasonable clarity, a trial court finding based on the record of actual violation and that the sanction imposed was proportional to the violation: “Here, the court’s order was reasonably clear as evidenced by the numerous orders this court rendered against the plaintiff in its seeking to avoid answering the interrogatories and producing the requested production. The plaintiff violated the order by not answering a number of interrogatories and by not producing a list of foreclosure cases relating to the assets transferred by [JP Morgan Chase Bank, N.A. (JP Morgan Chase)] to the Bank of New York, and further, by omitting hundreds of pages in the material the plaintiff did submit. As a consequence, the court finds the plaintiff in contempt and orders it to pay to . . . Johnathan S. Bell a fine of $1000 to compensate him for the time expended analyzing the plaintiffs submissions and discovering the omitted pages.”

The plaintiff filed a motion to reargue the pertinent contempt motion and, on June 29, 2011, the court ruled on that motion in a memorandum of decision. The court stated: “Turning to the merits of the plaintiffs motion for reargument, the plaintiff is right that it did answer all the numbered interrogatories referred to in the defendants’ amended motion for contempt. The plaintiff also explained the omission of certain documents on the grounds that this court sustained the plaintiffs objections to some of the documents being submitted.

“However, in its memorandum of decision of December 16, 2010, the court noted that ‘discovery was not limited to the bundle of assets contained in [BS ALT A 2005-9] because the defendants challenged the entire transaction between JP Morgan Chase and the Bank of New York. Consequently, the defendants were entitled to inquire as to all assets transferred in the transaction.’ As the court further pointed out this put an enormous burden on the plaintiff to provide information and documents requested by the defendants. ‘However, that is a consequence of the complexity of the underlying transaction.’

“One of the defendants’ inquiries relates to all the foreclosure cases brought on mortgages included in the assets transferred by JP Morgan Chase to the Bank of New York. The plaintiff has responded by providing over six hundred pages listing foreclosure cases. Although some may relate to assets other than [BS ALT A 2005-9], they do not relate to all the assets other than [BS ALT A 2005-9]. And, while they may relate to all the cases in which Wells Fargo Bank was servicer, no foreclosure cases were listed of assets serviced by other than Wells Fargo Bank. There were several other ser-vicers of these assets.

“The court reiterates its conclusion stated in its December 16,2010 decision, ‘Thus, on its face, the plaintiff has failed to comply with the court’s order.’ The corut has no sympathy for the burden put on the plaintiff to respond to the defendants’ interrogatories and requests for production. It brought it on itself by bringing into play the entire transaction between JP Morgan Chase and Bank of New York. On reargument, the court finds the plaintiff has still not complied with the court’s order and for reasons stated in the December 16, 2010 decision, finds that that noncompliance was wilful. The motion to reargue is granted and after reconsideration, the court reaffirms its holding the plaintiff in contempt, as stated in its decision of December 16, 2010.”

On appeal, the plaintiff claims that the court lacked subject matter jurisdiction to render the judgment of contempt because the plaintiff withdrew the action as of right prior to the court holding the plaintiff in contempt. The plaintiff also claims that the court had no authority to order the plaintiff to respond to discovery requests on behalf of Bank of New York or on behalf of Bank of New York as trustee for trusts other than BS ALT A 2005-9, which trust held the note and mortgage executed by Sonja V. Bell, and that, accordingly, the court improperly held the plaintiff in contempt for violating an overly broad order.

With respect to the plaintiffs claim that the court lacked subject matter jurisdiction after the plaintiff withdrew its complaint, even if we were to assume, without deciding, that the plaintiff is correct that its action against the defendants was withdrawn as of right immediately upon its filing a withdrawal form, the plaintiff acknowledged in its reply brief that after such withdrawal there remained a counterclaim pending against it. See Practice Book § 10-55. Although the plaintiff further argues in its reply brief that the discovery requests that were the subject of the court’s contempt finding are unrelated to the counterclaim, the defendants, in part, specifically argued in their motion for contempt that the plaintiffs failure to respond to the discovery requests delayed their ability to proceed on their counterclaim by presenting their case against the plaintiff. On the basis of the record, therefore, including the fact of the pending counterclaim against the plaintiff, we disagree with the plaintiff that the court lacked subject matter jurisdiction.

The plaintiffs second claim on appeal is that the court improperly held it in contempt for violating an order that was overly broad, requiring the plaintiff to respond to discovery requests on behalf of Bank of New York or on behalf of Bank of New York as trustee for trusts other than BS ALT A 2005-9, which trust held the note and mortgage executed by Sonja V. Bell. Specifically, the plaintiff argues that the court’s discovery order procedurally was improper and the court lacked the authority to order compliance.

“Contempt is a disobedience to the rules and orders of a court which has power to punish for such an offense. . . . [0]ur analysis of a judgment of contempt consists of two levels of inquiry. First, we must resolve the threshold question of whether the underlying order constituted a court order that was sufficiently clear and unambiguous so as to support a judgment of contempt. . . . This is a legal inquiry subject to de novo review. . . . Second, if we conclude that the underlying court order was sufficiently clear and unambiguous, we must then determine whether the trial court abused its discretion in issuing, or refusing to issue, a judgment of contempt, which includes a review of the trial court’s determination of whether the violation was wilful or excused by a good faith dispute or misunderstanding.” (Citations omitted; internal quotation marks omitted.) In re Leah, 284 Conn. 685, 692-94, 935 A.2d 1021 (2007).

The plaintiff claims that the court had no authority to order it to turn over documents that belonged to Bank of New York or that belonged to Bank of New York as trustee for any trust other than BS ALT A 2005-9. The plaintiff argues that it is a separate entity from Bank of New York and that the court, therefore, improperly ordered it to turn over documents belonging to that separate entity, which ultimately led to the court’s improper finding of contempt. We agree with the plaintiff.

We must determine whether the court’s judgment of contempt constituted an abuse of discretion. See In re Leah, supra, 284 Conn. 694. To do so, we look at the scope of the discovery orders as determined by the court. On December 16, 2010, in its memorandum of decision on the defendants’ motion for contempt, the court reiterated its conclusion stated in its decision on the plaintiffs objection to the defendants’ interrogatories and requests for production dated November 12, 2009, that “discovery was not limited to the bundle of assets contained in [BS ALT A 2005-9] because the defendants challenged the entire transaction between JP Morgan Chase and the Bank of New York. Consequently, the defendants were entitled to inquire as to all assets transferred in the transaction.” The court further stated: “One of the inquiries of the defendants relates to all the foreclosure cases brought against mortgages in the assets transferred by JP Morgan Chase to the Bank of New York. The plaintiff has responded by providing over six hundred pages listing foreclosure cases. But all of them relate only to assets in [BS ALT A 2005-9] . . . . Thus, on its face, the plaintiff has failed to comply with the court’s order.” The court concluded its decision holding the plaintiff in contempt for violating its order as follows: “The plaintiff violated the order by not answering a number of interrogatories and by not producing a list of foreclosure cases relating to the assets transferred by JP Morgan Chase to the Bank of New York, and further, by omitting hundreds of pages in the material the plaintiff did submit. As a consequence, the court finds the plaintiff in contempt . . . .”

On June 29, 2011, the court issued its memorandum of decision on the plaintiffs motion to reargue in which it affirmed its December 16,2010 judgment of contempt. The court stated that “[the plaintiff] did answer all the numbered interrogatories in the defendants’ amended motion for contempt. The plaintiff also explained the omission of certain documents on the grounds that this court sustained the plaintiffs objections to some of the documents being submitted.” The court then summarized its reasoning in its December 16, 2010 decision regarding the scope of discovery not being limited to “the bundle of assets contained in [BS ALT A 2005-9] because the defendants challenged the entire transaction between JP Morgan Chase and the Bank of New York.” The court further stated: “The court reiterates its conclusion stated in its December 16, 2010 decision, ‘Thus, on its face, the plaintiff has failed to comply with the court’s order.’ The court has no sympathy for the burden put on the plaintiff to respond to the defendants’ interrogatories and requests for production. It brought it on itself by bringing into play the entire transaction between JP Morgan Chase and Bank of New York.”

We agree with the plaintiff that the court’s discovery order required the plaintiff to respond to interrogatories and requests for production as trustee for BS ALT A 2005-9, the sole plaintiff, and on behalf of Bank of New York, an entity not a party to this action. The plaintiff and Bank of New York, however, are separate entities. See 90 C.J.S. 131, Trusts § 2 (2010) (“[a] fiduciary acting in a representative capacity is a different person for judicial purposes from the same person acting in an individual capacity”). The interrogatories and requests for production to which the court ordered the plaintiff to respond were not limited to the trust assets. Furthermore, Bank of New York was never a party to this action. Practice Book §§ 13-6 and 13-9 permit parties to an action to serve interrogatories and requests for production only on other parties to that action. Despite Bank of New York’s nonparty status, the court broadened the scope of the interrogatories and requests for production to include the entire transaction between JP Morgan Chase and Bank of New York, a nonparty. Thus, pursuant to Practice Book §§ 13-6 and 13-9, the court had no authority to order the plaintiff to turn over documents that belonged to Bank of New York, a separate nonparty entity, nor did it have any authority in the circumstances of this case to order the plaintiff as trustee for BS ALT A 2005-9 to turn over documents from other trusts. The court had the authority to order the plaintiff to respond to discovery requests relating to BS ALT A 2005-9. The court, having ordered the plaintiff to turn over documents that belonged to a nonparty and to other trusts, and having found the plaintiff in contempt for failing to do so, acted beyond the scope of its authority. Accordingly, we conclude that the court’s judgment holding the plaintiff in contempt was improper and, therefore, an abuse of the court’s legal discretion.

The judgment is reversed and the case is remanded with direction to vacate the judgment of contempt.

In this opinion the other judges concurred.

       Mortgage Electronic Registration Systems, Inc., also was named as a defendant but is not a party to this appeal. We therefore refer in this opinion to Sonja V. Bell and Johnathan S. Bell collectively as the defendants, and individually by name where appropriate.

       Because we determine the substance of the plaintiff’s appeal on the basis of its second claim which is dispositive, we deem it unnecessary to address the plaintiffs remaining claims. See Tanzman v. Meurer, 128 Conn. App. 405, 407 n.2, 16 A.3d 1265, cert. granted on other grounds, 301 Conn. 930, 23 A.3d 724 (2011); Follacchio v. Follacchio, 124 Conn. App. 371, 373 n.2, 4 A.3d 1251, cert. granted on other grounds, 299 Conn. 914, 10 A.3d 530 (2010).

       Practice Book § 10-56 provides in relevant part: “The withdrawal of an action after a counterclaim, whether for legal or equitable relief, has been filed therein shall not impair the right of the defendant to prosecute such counterclaim . ”

       Normally, we address the clarity and ambiguity of a court’s order before determining whether the court abused its discretion in issuing a judgment of contempt. In the present case, however, we conclude, without deciding whether the order was clear and unambiguous, that the court exceeded its authority by ordering the plaintiff to turn over documents that belonged to a separate, nonparty entity, and we reverse the judgment of contempt on that basis.

       “The trustee is a proper party to assert the claims of a trust for any damages sustained to the trust during the term of the trust, and, as a general rule, the trustee is a proper person to sue or be sued on behalf of a trust. It is within the trustee’s power, and a duty of the trustee, to institute actions and proceedings for the protection of the trust estate and the enforcement of claims and rights belonging to the estate, and to take all steps as are reasonably necessary.” 76 Am. Jur. 2d 636, Trusts § 606 (2005). “A trustee’s duties in connection with his or her office do not include the rights to present an argument pro se in the courts, since in this capacity the trustee would be representing interests of others and would therefore be engaged in the unauthorized practice of law.” Id., § 606, observation, p. 636.
      “The trustee is the legal owner of trust property, and as such the trustee is the proper party to actions affecting title to trust property. Thus, a trustee is a necessary party to any suit or proceeding involving a disposition of trust properly or funds, and a trustee may maintain an action in law of equity against a third person to remedy an ir\jury with respect to the trust property as if the trustee held the property free of the trust. Therefore, in actions adverse to a trust, a trustee may sue or defend in the trustee’s own name, so long as that power is vested in the trustee.” Id., § 611, p. 640.

       Practice Book § 13-6 (a) provides in relevant part: “In any civil action . . . any party may serve . . . written interrogatories . . . upon any other party to be answered by the party served. . . .”
      Practice Book § 13-9 (a) provides in relevant part: “In any civil action . . . any party may serve . . . upon any other party a request to afford the party submitting the request the opportunity to inspect, copy, photograph or otherwise reproduce designated documents ... or to inspect and copy . . . any tangible things in the possession, custody or control of the party upon whom the request is served . . . .”


author: PER CURIAM.

text:
    CREATIVE MASONRY AND CHIMNEY, LLC v. NEIL JOHNSON
    (AC 33948)
    DiPentima, C. J., and Gruendel and Alvord, Js.
    Argued January 9
    officially released April 23, 2013

      Neil Johnson, pro se, the appellant (defendant).

      Jon L. Schoenhom, for the appellee (plaintiff).
   Opinion

PER CURIAM.

The defendant, Neil Johnson, appeals from the judgment of the trial court, rendered after a jury trial, in favor of the plaintiff, Creative Masonry & Chimney, LLC, on its claims of breach of contract, fraud and violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. On appeal, the defendant claims that the court erred by (1) prohibiting him from filing a motion for summary judgment, (2) admitting evidence pertaining to his disciplinary proceeding, (3) declining to set aside the verdict and (4) awarding punitive damages. We affirm the judgment of the trial court.

The following facts were set forth in the trial court’s memorandum of decision with respect to the parties’ various postverdict motions. “What should have been a simple breach of contract action for nonpayment of work done by the plaintiff on the defendant’s house morphed into a two year lawsuit, fueled mainly by the defendant’s conduct throughout the proceedings and trial, raising claims that were baseless and at times all out lies. What makes this even more egregious is that the defendant is an attorney admitted to practice law in this state.

“The suit arises out of a written contract between the plaintiff, through its principal, Edward Sziabowski, and the defendant, Neil Johnson, to repair and renovate a chimney and fireplace at the defendant’s home. The defendant hired the plaintiff to do the work and agreed to pay the plaintiff $13,500 pursuant to the written contract. During the course of the work, he falsely told the plaintiff that he was transferring money from an investment account to pay for the work, in order to induce the plaintiff to continue with and complete the work. Upon completion of the work, the defendant made no complaints about the work, but did not pay a balance owed under the contract of $5000. . . .

“The defendant’s behavior during the time the plaintiff was attempting to collect the balance owed was nothing short [of] outrageous. For example, in one instance when the defendant answered his cell phone identifying himself as Neil Johnson, when he discovered it was Sziabowski calling to collect his money, he began to speak in a falsetto tone, and said Neil Johnson was not available. . . .

“Moreover, the evidence demonstrates that the defendant lied not only to the plaintiff, but to the jury as well. Further examples of the defendant’s egregious actions are that he made false statements to the plaintiff in order to hinder the plaintiff s just collection of a debt; baseless accusations that the plaintiff was employing ‘illegal aliens’ and [that he] would be referring the plaintiff for such violations of federal and state law. . . .

“The defendant, a practicing attorney, has been referred to the Disciplinary Counsel for his actions related to this matter. Admitted at this hearing was the order by the court in that action, together with an affidavit by the defendant, wherein he admitted to threatening to ‘present criminal charges relating to the immigration status of the plaintiffs employees’ and using his position as an attorney to intimidate the plaintiff ‘to avoid honoring [his] obligation.’ ”

The court also set forth the following procedural history. “On June 28, 2011, a jury returned a verdict in favor of the plaintiff . . . against the defendant . . . on counts of breach of contract, fraud, and violation of [CUTPA]. On the fraud count and the CUTPA [count], the jury found that the plaintiff is entitled to punitive damages. Compensatory damages were assessed in the amount of $7700. On the verdict forms, the court indicated that it would make the determinations of any punitive damages. The court accepted and recorded the verdict on June 28, 2011.

“On July 7, 2011, the defendant filed a motion to set aside the verdict and either enter a verdict for the defendant or order a new trial. On July 22, 2011, the plaintiff filed a motion for punitive damages, as well as attorney’s fees. On July 28, 2011, the plaintiff filed a motion for prejudgment interest, followed by a bill of costs. The court held an evidentiary hearing on September 8, 2011, to address the motions.” The court denied the defendant’s motion to set aside the verdict, and rendered judgment for the plaintiff, awarding $7700 in compensatory damages; $23,100 in punitive damages; $56,380 in attorney’s fees; $1222.25 in costs; $1912.50 in expert costs; and $2754 in prejudgment interest. This appeal followed.

I

The defendant first argues that the court improperly prohibited him from filing a motion for summary judgment. We decline to review this claim because the defendant provided an inadequate record.

The record reveals the following procedural history. On May 28, 2010, the court, Hon. William M. Shaugh-nessy, Jr., judge trial referee, entered a scheduling order, which provided that the parties were required to file any motions for summary judgment on or before April 30, 2011. On March 9, 2011, the court, Pittman, J., denied the plaintiffs motion for permission to file a motion for summary judgment. On April 29, 2011, the defendant filed a motion for summary judgment. In response, the plaintiff filed an objection to the defendant’s motion for summary judgment, arguing that allowing the defendant to file a motion for summary judgment would be unfair in light of the court’s previous order denying the plaintiff the opportunity to file a motion for summary judgment, and that the defendant did not seek permission from the court to file a motion for summary judgment pursuant to Practice Book § 17-44. On May 16, 2011, Judge Pittman issued an order sustaining the plaintiffs objection and the court subsequently denied the defendant’s motions for articulation and reargument of its order.

“It is the responsibility of the appellant to provide an adequate record for review.” Practice Book § 61-10. Practice Book § 63-8 provides in relevant part that “the appellant shall . . . order, using Form JD-ES-38, from the official reporter a transcript ... of the parts of the proceedings not already on file which the appellant deems necessary for the proper presentation of the appeal. Such order shall specify the case name, docket number, judge’s name(s), and hearing date(s), and include a detailed statement describing the parts of the proceedings of which a transcript has been ordered . . . .” (Emphasis added.) Form JD-ES-38 reiterates Practice Book § 63-8, requiring the person ordering the transcript to “[d]esciibe in detail including specific dates, the parts of the proceedings for which a transcript is being ordered.”

The defendant, on Form JD-ES-38, merely requested “trial + short calendar proceedings.” He did not provide hearing dates for which the transcript was ordered, and, as a result, the record does not contain a transcript of any of the proceedings before Judge Pittman. Facial compliance with a scheduling order does not permit this court to speculate as to the validity of the reasons why a trial judge would sustain an objection to the defendant’s filing of a motion for summary judgment. We therefore decline to review this claim on the basis of an inadequate record.

II

The defendant next argues that the court improperly permitted evidence pertaining to his disciplinary hearing before the Statewide Grievance Committee (grievance committee) to be presented to the jury. We decline to review this claim because it is briefed inadequately.

The defendant argues that five exhibits, which were related to his disciplinary hearing before the grievance committee, were improperly presented to the jury in this case: (1) a recording of a message that the defendant left on the plaintiffs voice mail on June 30, 2008; (2) a written transcription of that voice mail message; (3) the transcript of the defendant’s testimony during his hearing before the grievance committee on March 4, 2010; (4) the decision of the grievance committee issued on May 14, 2010; and (5) the decision of the reviewing committee to affirm the grievance committee’s decision. He further argues that the court should not have permitted the testimony of chief disciplinary counsel Patricia King under the same theory that all evidence pertaining to the hearing before the grievance committee should have been precluded.

On June 10, 2011, the defendant filed a motion in limine seeking to “preclude the introduction through documents or testimony of any reference to Grievance Committee proceedings and or findings of local panels.” Prior to commencement of the trial proceedings, the court heard argument on the motion. During the course of the trial, the material the defendant sought to preclude was presented to the court in different forms and received different treatment from the court. For example, the court permitted King to testify and refer to the transcript of the defendant’s testimony at his grievance committee hearing, precluded the decision issued by the grievance committee, and admitted as full exhibits the voice mail message and the written transcription of that voice mail message.

Practice Book § 60-5 permits a defendant to preserve an evidentiary claim for appeal by way of a motion in limine. See Cima v. Sciaretta, 140 Conn. App. 167, 173 n.5, 58 A.3d 345 (2013); State v. Antwon W., 118 Conn. App. 180, 194-95, 982 A.2d 1112 (2009), cert. denied, 295 Conn. 922, 991 A.2d 568 (2010). “When error is claimed in any evidentiary ruling in a court or jury case, the brief or appendix [asserting such error] shall include a verbatim statement of the following: the question or offer of exhibit; the objection and the ground on which it was based; the ground on which the evidence was claimed to be admissible; the answer, if any; and the ruling.” Practice Book § 67-4 (d) (3). “We repeatedly have stated that [w]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Internal quotation marks omitted.) State v. Adams, 139 Conn. App. 540, 552 n.7, 56 A.3d 747 (2012).

The defendant’s claim is properly preserved pursuant to Practice Book § 60-5, but the defendant does not direct the court to, let alone provide, the requisite detailed statement. This claim, therefore, is inadequately briefed, and “[w]e do not reverse the judgment of a trial court on the basis of challenges to its rulings that have not been adequately briefed.” (Internal quotation marks omitted.) Grasso v. Connecticut Hospice, Inc., 138 Conn. App. 759, 768, 54 A.3d 221 (2012).

in

The defendant next claims that the verdict contained several errors and that the court, therefore, improperly denied his motion to set aside the verdict. Specifically, the defendant contends that the verdict erroneously concluded that (1) the plaintiff did not violate the Home Improvement Act, General Statutes § 20-418 et seq., (2) the defendant breached the home improvement contract and (3) the defendant violated CUTPA. We disagree.

It is uncontested that the plaintiff and the defendant entered into a contract whereby the plaintiff would repair and renovate a chimney at the defendant’s home, that a building permit to perform the work at the defendant’s home never was obtained and that the defendant did not pay the plaintiff the amount due pursuant to the terms of the contract. Facts about the formation of the contract, why the building permit never was obtained and whether the defendant used his position as an attorney to threaten the plaintiff, however, were contested. The contested facts were central to the defendant’s arguments to the trial court as to why the verdict should be set aside.

“Our standard of review of the court’s refusal to grant [motions for directed verdicts and to set aside verdicts] requires us to consider the evidence in the light most favorable to the prevailing party, according particular weight to the congruence of the judgment of the trial judge and the jury, who saw the witnesses and heard their testimony. . . . The verdict will be set aside and judgment directed only if we find that the jury could not reasonably and legally have reached [its] conclusion. . . . Our standard of review, where the trial court’s action on a motion to set aside a verdict is challenged, is whether the trial court clearly abused its discretion. . . . The decision to set aside a verdict is a matter within the broad legal discretion of the trial court and it will not be disturbed unless there has been a clear abuse of that discretion.” (Internal quotation marks omitted.) Kosiorek v. Smigelski, 138 Conn. App. 695, 707-708, 54 A.3d 564 (2012), cert. denied, 308 Conn. 901, 60 A.3d 287 (2013).

Here, the jury reasonably and legally could have reached the conclusion that it did. The court therefore did not abuse its discretion in denying the defendant’s motion to set aside the verdict.

IV

The defendant next claims that the court erred in its award of punitive damages pursuant to his violation of CUTPA. We disagree.

The defendant claims that the award of punitive damages was based, in part, on evidence that the court should not have considered because it was “solely within the province of the [grievance committee] . . . .” The court, however, stated in its memorandum of decision that “[although there was no objection to the admission of the [grievance committee’s] order and affidavit [containing statements the defendant made at the disciplinary proceeding], the court [did] not rely on these in determining punitive damages. The court [based] its determination of punitive damages upon the evidence at trial, as well as the jury’s findings of fact, and verdict.”

Under CUTPA, “[t]he court may, in its discretion, award punitive damages . . . .” General Statutes § 42-1 lOg (a). “In order to award punitive or exemplary damages, evidence must reveal a reckless indifference to the rights of others or an intentional and wanton violation of those rights.” (Internal quotation marks omitted.) Gargano v. Heyman, 203 Conn. 616, 622, 525 A.2d 1343 (1987). “Awarding punitive damages and attorney’s fees under CUTPA is discretionary . . . and the exercise of such discretion will not ordinarily be interfered with on appeal unless the abuse is manifest or injustice appears to have been done.” (Citations omitted.) Id.

The court found “that the defendant’s conduct reflects a reckless indifference to the rights of the plaintiff, and an intentional violation of its rights justifying an award of punitive damages. There is no question that the conduct by the defendant is offensive and qualifies] for an award of punitive damages.” The court’s award of punitive damages in this case was not an abuse of its discretion.

The judgment is affirmed.

       The transcription of the voice mail message provides: “Uh, Hi Ed, it’s Neil Johnson. Uhh, I figure I’ve made enough money so far this weekend to—and it’s time to call you back. Um, every time you called me, uhh, to talle about money owed, uh, I get a hundred bucks plus attorney’s fees. So Friday you’ve called me sixty-five times, so you owe me sixty-five hundred dollars plus attorney’s fees so let’s call it ten grand even. Ummm, and as far as the, uh, project goes, um, it obviously didn’t comply with the Home Improvement Act, which I checked on, because there’s two contracts and they’re backdated and all those other nice improprieties. But I think the best part is that you were use—using illegal aliens as construction workers. Uhh, which is a violation of state and federal law. So, I’ll appreciate it if you could just, uh, send me a check for say, ten thousand dollars and we’ll call it even. And, uh, and uh you could apologize too while we’re at it. So I appreciate you harassing me all weekend because I just made myself ten grand, but I’ve really had enough. So thanks and, uh, have a good day. Buh-bye.”

       The grievance committee found, by clear and convincing evidence, that the defendant violated the following Rules of Professional Conduct: Rule 3.4 (7)—threatening to present criminal charges solely to obtain an advantage in a civil matter; Rule 8.4 (4)—engaging in conduct prejudicial to the administration of justice; and Rule 8.4 (3)—engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.

       The defendant does not argue that the plaintiff improperly used as impeachment evidence the defendant’s former testimony in an unrelated disciplinary hearing in which the grievance committee found that the defendant misappropriated client funds and lied to a Superior Court judge.

       The defendant filed two other motions in limine, which are not subject to this appeal.