author: DUPONT, J.

text:
    ROBERT ST. GERMAIN, SR. v. CALVIN D. HURD ET AL.
    (AC 32121)
    Gruendel, Lavme and Dupont, Js.
    Argued March 9 —
    officially released May 10, 2011

      James P. Brennan, for the appellants (defendants).

      Eddi Z. Zyko, for the appellee (plaintiff).
   Opinion

DUPONT, J.

This appeal arises out of a dispute between neighbors over the defendants’ use of the plaintiffs driveway to access the defendants’ property and their use of a portion of the plaintiffs land adjacent to the driveway as a “turnaround” area for their cars. The court held that the defendants had acquired a prescriptive easement to use the plaintiffs driveway for ingress and egress from their home to West Main Street in Waterbury, but that they had failed to establish an easement over the turnaround area. The defendants appeal the court’s refusal to render judgment for them as to their claim that they had a prescriptive right to use the turnaround area. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the defendants’ claim. The defendants, Calvin D. Hurd and Bambi Hurd, own and reside at 1050 West Main Street in Waterbury. The plaintiff, Robert St. Ger-main, Sr., owns and resides at 1048 West Main Street in Waterbury, which lies immediately south of the defendants’ property. Running along the western border of the plaintiffs property is a paved driveway that is twelve feet wide and connects the defendants’ property to West Main Street. The driveway is wide enough to accommodate only one vehicle at a time. The defendants use this driveway for ingress and egress to their property.

The plaintiff also maintains a separate paved area that lies directly south of his home and east of the driveway, which he uses for parking and turning around his car. The defendants claim that they also use and have used for more than fifteen years this turnaround area to turn their vehicles to drive forward in a southerly direction toward West Main Street. As a result of such use, they do not have to drive in reverse the full length of the driveway in order to enter safely West Main Street, which is a busy public thoroughfare. The plaintiff commenced an action for a declaratory judgment seeking, among other things, to exclude the defendants from the turnaround area. The defendants filed a special defense claiming a prescriptive right to use the turnaround area and filed a counterclaim seeking a judgment settling a right-of-way or easement pursuant to General Statutes § 47-37 to the turnaround area.

After a trial to the court, the court found that the defendants had not established that they had a prescriptive right to use the turnaround area. The court held that “[n]o sufficient evidence was submitted into the record to establish with any degree of definiteness the boundary of the area known as the ‘turnaround.’ ” The defendants sought an articulation of the court’s ruling, and the court explained that there was “no credible testimony pointing to where and how the defendant[s] used the ‘area’ [known] as the turnaround.” The defendants appeal from the court’s judgment that they had not acquired a prescriptive easement over the turnaround area.

As a threshold matter, we must address the standard of review. The scope of our appellate review depends upon the proper characterization of the rulings made by the trial court. Bristol v. Tilcon Minerals, Inc., 284 Conn. 55, 87, 931 A.2d 237 (2007). The defendants did not set forth a standard of review in their brief. At oral argument, they maintained that this court’s review is plenary because whether the trial court applied the appropriate standard to the evidence establishing their prescriptive right to the turnaround is a question of law. The plaintiff maintains that because the defendants challenge the factual basis for the trial court’s decision regarding the existence of a prescriptive easement, their claim is subject to the clearly erroneous standard of review. We agree with the plaintiff.

“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 a trial court’s decision [regarding the existence of a prescriptive easement] is challenged, our function is to determine whether, in light of the pleadings and evidence in the whole record, these findings of fact are clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ... In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling.” (Citation omitted; internal quotation marks omitted.) Slack v. Greene, 294 Conn. 418, 426-27, 984 A.2d 734 (2009). “In applying the clearly erroneous standard of review, [a]ppellate courts do not examine the record to determine whether the trier of fact could have reached a different conclusion. Instead, we examine the trial court’s conclusion in order to determine whether it was legally correct and factually supported. . . . This distinction accords with our duty as an appellate tribunal to review, and not to retry, the proceedings of the trial court.” (Emphasis added; internal quotation marks omitted.) Saunders v. Firtel, 293 Conn. 515, 535, 978 A.2d 487 (2009).

We review the defendants’ claim with this standard in mind. The defendants claim that they established their prescriptive right to use the turnaround. They argue that they “offer[ed] sufficient evidence to establish the bounds of the ‘turnaround’ with ‘reasonable certainty.’ ”

“It is well settled that [a]n easement creates a nonpossessory right to enter and use land in the possession of another and obligates the possessor not to interfere with the rules authorized by the easement. . . . [Elements are not ownership interests but rather privileges to use [the] land of another in [a] certain manner for [a] certain purpose . . . .” (Internal quotation marks omitted.) Stefanoni v. Duncan, 282 Conn. 686, 700, 923 A.2d 737 (2007). Section “47-37 provides for the acquisition of an easement by adverse use, or prescription. That section 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. [General Statutes § 47-37.]” (Internal quotation marks omitted.) Slack v. Greene, supra, 294 Conn. 427. A party claiming an easement by prescription must demonstrate that the use has been open, visible, continuous and uninterrupted for fifteen years and made under a claim of right. Id. The standard of proof that is required to establish an easement by prescription is a fair preponderance of the evidence. McCullough v. Waterfront Park Assn., Inc., 32 Conn. App. 746, 753, 630 A.2d 1372, cert. denied, 227 Conn. 933, 632 A.2d 707 (1993).

“It is well settled that when an easement is established by prescription, the common and ordinary use which establishes the right also limits and qualifies it. Hawley v. McCabe, 117 Conn. 558, 560, 169 A. 192 (1933).” (Internal quotation marks omitted.) Kuras v. Kope, 205 Conn. 332, 341, 533 A.2d 1202 (1987). “The prescriptive right extends only to the portion of the servient estate actually used . . . and is circumscribed by the manner of its use.” (Citation omitted.) Kaiko v. Dolinger, 184 Conn. 509, 510-11, 440 A.2d 198 (1981). A prescriptive right cannot be acquired unless the common and ordinary use defines the bounds of the claimed easement with reasonable certainty. Schulz v. Syvertsen, 219 Conn. 81, 92-93, 591 A.2d 804 (1991); Kaiko v. Dolinger, supra, 511; Kelley v. Tomas, 66 Conn. App. 146, 167, 783 A.2d 1226 (2001); Simonds v. Shaw 44 Conn. App. 683, 690-91, 691 A.2d 1102 (1997). This requirement is not satisfied when the use is “indiscriminate over [an] entire area.” Aksomitas v. South End Realty Co., 136 Conn. 277, 285, 70 A.2d 552 (1949). There have been cases in which this court has affirmed the grant of a prescriptive easement that did not contain the specific terms of the easement, but in those cases, the scope of the easement was nonetheless defined by the common and ordinary use proven at trial. See, e.g., Kelley v. Tomas, supra, 160, & 167 n.4 (court’s description of easement by prescription as general route across property used by defendants for more than twenty years without incident upheld although parties did not introduce evidence such as its metes and bounds); Simonds v. Shaw, supra, 691 (court need not define scope of easement because it was already defined by boundaries of roadway).

It is not always necessary or even possible for the party claiming a prescriptive right to establish the precise metes and bounds of the easement. See McCullough v. Waterfront Park Assn., Inc., supra, 32 Conn. App. 759 (boundaries of prescriptive easement need not be described by metes and bounds if character of land makes such precise description impossible). Nor must the common and ordinary use be without any deviation. See Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 125-27, 881 A.2d 937 (2005) (concluding that vertical dimensions of prescriptive easement claimed by defendants were “sufficiently defined” in spite of certain variations in use), cert. 547 U.S. 1111, 126 S. Ct. 1913, 164 L. Ed. 2d 664 (2006); cf. Boccanfuso v. Conner, 89 Conn. App. 260, 291, 873 A.2d 208 (“slight or immaterial changes or deviations in a portion or portions of a way do not prevent the acquisition of a right-of-way by adverse use so long as the way remains substantially the same throughout the prescriptive period” [internal quotation marks omitted]), cert. denied, 275 Conn. 905, 882 A.2d 668 (2005), quoting 25 Am. Jur. 2d 544-45, Easements and Licenses § 51 (2004).

We will now examine the pleadings and evidence relevant to the defendants’ claim to a prescriptive right to turn around their vehicles on the plaintiffs property. In the pleadings, neither party described the turnaround area with any specificity. At trial, Calvin D. Hurd testified regarding several photographs that were admitted as full exhibits and pertained to the turnaround area. Regarding one photograph that depicts the area from his house to West Main Street, he stated: “I would back in here, back down the turn out, and then proceed in a forward manner onto West Main Street.” He also indicated the turnaround area in several other photographs. A survey map of the parties’ properties was also admitted as a full exhibit into evidence.

In its memorandum of decision, the court described the plaintiffs turnaround area as a “separate paved area . . . that lies directly south of his home and east of the driveway.” The court, in its articulation, described the area as depicted on the survey map as “between the house owned by the plaintiff and shown as Existing House #1048 being the northern point ... to the west which shows an existing garage, to the south which is the south property line of the defendants and to the east which is driveway.” The court found that it was in this “general area” that the defendants claimed that they turned their vehicles around. The court found that “[n]o sufficient evidence was submitted into the record to establish with any degree of definiteness the boundary of the area known as the ‘turnaround’ ” and therefore held that the defendants did not establish a prescriptive right to use the turnaround area.

The defendants argue that it appears as if the only required element of a claim for a prescriptive easement, which they failed to establish by a preponderance of the evidence, was the definiteness of the boundary of the turnaround area. They claim on appeal that they established the boundary with reasonable certainty because the court was able to describe the exact location of the turnaround area and Calvin Hurd testified how the defendants used it. We are not persuaded.

The statute, § 47-37, requires that the claimed adverse use continue uninterrupted for the prescribed period. For the court to find a prescriptive easement in the defendants’ favor, it must be able to identify the defendants’ claimed common and ordinary use of the plaintiffs land. Our appellate courts have described that element as defining the bounds of the easement with reasonable certainty. The court found that there was no credible testimony establishing what portion of the plaintiffs land was used by the defendants to turn around, nor was there any credible testimony pointing to how the defendants used the area to turn their vehicles. The evidence before the court included testimony in which Calvin Hurd pointed to a few photographs taken of the parties’ properties identifying the turnaround area and testified that he would “back in here [and] back down the turn out . . . .’’As noted by the court in its articulation, there was no credible testimony, for example, as to whether the defendants executed a three-point turn, and if so, whether they did so closer to the existing house or closer to the property line, or whether they executed some other maneuver by driving as far over as the existing garage. “Whether the requirements for [an easement by prescription] have been met in a particular case presents a question of fact for the trier of facts. ... 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.” (Citations omitted; internal quotation marks omitted.) Robert S. Weiss & Co. v. Mullins, 196 Conn. 614, 618-19, 495 A.2d 1006 (1985).

This is not, as the defendants argue, a case of slight or immaterial changes or deviations in the use claimed, which would otherwise establish a prescriptive easement. Rather, it is a question of whether the defendants proved that their claimed use of an area created a prescriptive easement. The court, as fact finder, reasonably could have concluded that the evidence presented was insufficient for it to determine, with reasonable certainty, what common and ordinary use established the defendants’ claimed prescriptive right. Accordingly, it was not clearly erroneous for the court to conclude that the defendants had failed to prove that they had acquired a prescriptive easement to turn their vehicles around on the plaintiffs land.

The defendants, citing First Union National Bank v. Eppoliti Realty Co., 99 Conn. App. 603, 610, 915 A.2d 338 (2007), argue that when a trial court has erred in determining the scope of an easement, our appellate courts have remanded the case for a hearing limited to a determination of what would constitute a reasonable use of a right-of-way. First Union National Bank is distinguishable from the present case because it involved the finding by the trial court of an easement by necessity, which this court upheld, and concerned the need to define the limits on the authorized use of that easement, which was a factual inquiry for the trial court to undertake on remand. Id., 609-611. In the present case, there is no finding by the trial court that an easement by prescription exists, which conclusion we uphold, and therefore, there is no need for us to remand this case for the court to describe the dimensions of the easement. The defendants are not entitled to a remand in order to prove an essential element of a prescriptive easement, since they failed to prove the existence of a prescriptive right during the trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       According to the relevant deeds and land records, the defendants’ property is the dominant tenement for an easement for a right-of-way measuring eight feet wide and connecting the southern border of their property to West Main Street. The court held that the defendants established by a fair preponderance of the evidence that they have acquired a prescriptive easement to use the entire twelve foot width of the plaintiff’s driveway for ingress and egress to their property. The plaintiff has not appealed that ruling.

       The defendants did not claim as a special defense at trial, nor do they claim on appeal, that they have an easement by necessity over the turnaround area.

       “A million bats can fly out of a cave at once, yet few of them will bump into one another.” L. Goodman, “Dispatches From the Bat Cave,” Brown Alumni Magazine, March/April 2011, p. 26 (describing research at a laboratory at Brown University). Use of an easement by cars driven by humans, however, of necessity requires a descriptive recitation of the claimed boundaries of its common and ordinary use.

       The plaintiff alleges in his complaint that the defendants “turn around in the plaintiffs [l]ot” without his permission. The defendants allege in their special defense that they “have been using a turn around on [the plaintiffs property] . . . openly, visibly, continuously and under a claim of right without interruption for a period in excess of fifteen . . . years.” Similarly, the defendants allege in their counterclaim that they “have been using a turn around on [the plaintiffs property] . . . .”

       The issue in First Union National Bank v. Eppoliti Realty Co., supra, 99 Conn. App. 604, was whether the court, when finding that an easement by necessity existed, must describe specifically the scope of the easement. The trial court held that the easement allowed a use for “all general purposes . . . .” Id., 609. This court remanded the case for the court to determine the scope of the easement. Id., 611. “Scope” is not defined, but in context can be read to mean “use.” The court stated that “[t]he determination of the scope of an easement is a question of fact” and immediately thereafter stated that “[t]he use of an easement must be reasonable and as little burdensome to the servient estate as the nature of the easement and the purpose will permit.” (Emphasis added.) Id., 608.
      The issue in the present case is not whether the court adequately described the limits on the use to which the easement could be put, but whether the defendants’ failure to produce evidence sufficient to prove the bounds of the claimed easement with reasonable certainty was fatal to their claim of the existence of a prescriptive right.

        Without an easement, any determination of the use of the easement or its parameters is irrelevant. When, however, an easement has been shown to exist, the nature and boundaries of the use become relevant and must be reasonable. See Simone v. Miller, 91 Conn. App. 98, 111, 881 A.2d 397 (2005); Strollo v. Iannantuoni, 53 Conn. App. 658, 660-61, 734 A.2d 144, cert. denied, 250 Conn. 924, 738 A.2d 662 (1999).


source: Caselaw Access Project

author: BEAR, J.

license: Public Domain

text:
    JOHN D. FLANNERY v. SINGER ASSET FINANCE COMPANY, LLC, ET AL.
    (AC 31285)
    DiPentima, C. J., and Robinson and Bear, Js.

      Argued February 10 —
    officially released May 10, 2011

      Thomas P. Willcutts, for the appellant (plaintiff).

      Eliot B. Gersten, with whom, on the brief, was John H. Van Lenten, for the appellee (named defendant).
   Opinion

BEAR, J.

The plaintiff, John D. Flannery, appeals from the summary judgment rendered by the trial court in favor of the defendant Singer Asset Finance Company, LLC. On appeal, the plaintiff claims that the court improperly rendered summary judgment after it determined that the plaintiffs claims were barred by the applicable statutes of limitations. We affirm the judgment of the trial court.

The following facts, as set forth in the plaintiffs complaint, which effectively were uncontested for purposes of the motion for summary judgment, and procedural history are relevant to our resolution of this appeal. In 1988, the plaintiff won the Iowa state lottery in a gross amount of $3,000,000, which was to be paid in twenty annual installments of $150,000. The defendant was engaged in the business of, inter alia, purchasing the installment payments of lottery winners by means of providing those winners with lump sum payments. Prior to March, 1999, the defendant had contacted the plaintiff numerous times in unsuccessful attempts to convince him to sell his lottery installments for a discounted lump sum payment. Prior to March 23,1999, the defendant entered into a business relationship with attorney Glenn MacGrady for the purpose of having MacGrady provide what was purported to be independent professional advice to lottery winners. This purported independent professional advice, however, actually was based on a marketing scheme developed by the defendant to induce lottery winners to sell their installment payments to it by falsely advising them that they could gain significant tax advantages. In furtherance of this business relationship, the defendant arranged for Mac-Grady to communicate with the plaintiff in an attempt to induce him through these false tax benefit representations to sell his installment payments to the defendant for a discounted lump sum payment.

On March 23,1999, the plaintiff entered into a retainer agreement with MacGrady’s law firm, Pepe & Hazard, LLP (Pepe & Hazard), whereby MacGrady and Pepe & Hazard promised to provide independent legal advice to the plaintiff, thereby creating a fiduciary attorney-client relationship. MacGrady, in advancing the marketing scheme of the defendant, then convinced the plaintiff that he would experience substantial tax benefits if he sold his installment payments to the defendant for a discounted lump sum payment. This tax information, however, was false and erroneous. Relying on MacGrady’s advice, the plaintiff eventually sold his eight remaining installment payments, valued at $1,200,000, to the defendant for a discounted rate of $868,500. Thereafter, in conformance with the tax advice of Mac-Grady, which had been based on the defendant’s marketing scheme, the plaintiff filed a 1999 tax return listing the full amount of the lump sum payment as the sale of a capital asset, paying only the capital gains tax rate on the amount. In October, 2002, the Internal Revenue Service notified the plaintiff that it did not agree with his treatment of the lump sum payment, and it concluded that the plaintiff had a tax deficiency of $163,523.

The plaintiff contacted MacGrady, who, in furtherance of his business relationship with the defendant, continued to maintain the correctness of the tax advice. MacGrady encouraged the plaintiff to join a group of similarly situated lottery winners who also were challenging the Internal Revenue Service’s treatment of their lump sum payments, which group the plaintiff joined. Throughout this entire time, from 1999 through 2002, MacGrady never disclosed to the plaintiff his business relationship with the defendant, nor did the defendant disclose to the plaintiff its relationship with MacGrady.

On July 22, 2005, the plaintiff brought the present action, claiming in relevant part that the conduct of the defendant amounted to (1) aiding and abetting in the breach of a fiduciary duty and (2) a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. In its answer to the complaint, the defendant set forth two special defenses, namely, statutes of limitations and waiver. The plaintiff denied the special defenses and pleaded, by way of avoidance as to the statutes of limitations defenses, estoppel and fraudulent concealment. After considerable discovery, the defendant filed a motion for summary judgment. The plaintiff opposed the motion for summary judgment and also filed a Practice Book § 17-47 affidavit. The court granted the defendant’s motion for summary judgment on June 30, 2009. This appeal followed.

Initially, we set forth our standard of review. “Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is . . . entitled to judgment as a matter of law. . . . The test is whether the party moving for summary judgment would be entitled to a directed verdict on the same facts. . . .

“[A] party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. . . . It is not enough ... for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of [an issue of] material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment]. . . . Our review of the trial court’s decision to grant the defendant’s motion for summary judgment is plenary.” (Citation omitted; internal quotation marks omitted.) Cadlerock Joint Venture II, L.P. v. Milazzo, 287 Conn. 379, 390, 949 A.2d 450 (2008). “Summary judgment may be granted where the claim is barred by the statute of limitations.” Doty v. Mucci, 238 Conn. 800, 806, 679 A.2d 945 (1996).

“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.) Piteo v. Gottier, 112 Conn. App. 441, 450, 963 A.2d 83 (2009).

On appeal, the plaintiff claims that the court improperly concluded that the applicable statutes of limitations were not tolled by the continuing course of conduct doctrine or by the doctrine of fraudulent concealment. We are not persuaded.

The plaintiff pleaded two counts against the defendant, namely, aiding and abetting in the breach of a fiduciary duty and a violation of CUTPA. “Breach of fiduciary duty is a tort action governed by the three year statute of limitations contained within General Statutes § 52-577.” Ahern v. Kappalumakkel, 97 Conn. App. 189, 192 n.3, 903 A.2d 266 (2006). A CUTPA claim also is subject to a three year statute of limitations. General Statutes § 42-1 lOg (f). The plaintiff claims on appeal that the applicable statutes of limitations were tolled in this case by the continuing course of conduct doctrine or by the doctrine of fraudulent concealment.

“[W]hen the wrong sued upon consists of a continuing course of conduct, the statute does not begin to run until that course of conduct is completed. . . . [I]n order [t]o support a finding of a continuing course of conduct that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto. That duty must not have terminated prior to commencement of the period allowed for bringing an action for such wrong. . . . Where [our Supreme Court has] upheld a finding that a duty continued to exist after the cessation of the act or omission relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act. . . . Thus, there must be a determination that a duty existed and then a subsequent determination of whether that duty is continuing.” (Citation omitted; internal quotation marks omitted.) Stuart v. Snyder, 125 Conn. App. 506, 510-11, 8 A.3d 1126 (2010).

Although we agree with the plaintiff that the continuing course of conduct doctrine can toll the statute of limitations set forth in § 52-577, we also agree with the trial court that the plaintiff did not invoke this doctrine either in his complaint or in his pleading in avoidance. See Practice Book § 10-57 (a “[m]atter in avoidance of affirmative allegations in an answer or counterclaim shall be specially pleaded in the reply”). As we stated in Beckenstein Enterprises-Prestige Park, LLC v. Keller, 115 Conn. App. 680, 688, 974 A.2d 764, cert. denied, 293 Conn. 916, 979 A.2d 488 (2009), “the continuing course of conduct doctrine is a matter that must be pleaded in avoidance of a statute of limitations special defense.” Furthermore, as to the plaintiffs CUTPA claim, our Supreme Court has stated that the continuing course of conduct doctrine does not toll the three year statute of limitations set forth in § 42-110g (f). See Fichera v. Mine Hill Corp., 207 Conn. 204, 216-17, 541 A.2d 472 (1988). Accordingly, the court properly found this doctrine inapplicable.

The plaintiff also claims that the applicable statutes of limitations were tolled by the doctrine of fraudulent concealment pursuant to General Statutes § 52-595. He argues that MacGrady was acting as an agent of the defendant when he sought out the plaintiff and encouraged him to take advantage of the opportunity to sell his lottery payments for a lump sum to the defendant by use of the deceptive marketing scheme developed by the defendant, namely, the false tax advice. He also argues that the defendant instructed MacGrady to keep MacGrady’s relationship with the defendant confidential. Such active concealment of their relationship, the plaintiff argues, is “the legal equivalent of active fraud.” The defendant argues that the plaintiff failed to establish any facts that the defendant knew about the alleged dual representation by MacGrady, and, even if it did know, the plaintiff also failed to present any facts concerning any independent and affirmative acts of concealment by the defendant separate and apart from the alleged initial fraudulent conduct. Without disputed material facts, the defendant argues, the court properly rendered judgment as a matter of law on its statutes of limitations defense. We agree with the defendant.

“[I]t is well established that ignorance of the fact that damage has been done does not prevent the running of the statute [of limitations], except where there is something tantamount to a fraudulent concealment of a cause of action.” (Internal quotation marks omitted.) Rosenfield v. I. David Marder & Associates, LLC, 110 Conn. App. 679, 685, 956 A.2d 581 (2008). To prove fraudulent concealment, a plaintiff must demonstrate that the defendant: (1) had actual awareness, rather than imputed knowledge, of the facts necessary to establish the cause of action, (2) intentionally concealed those facts from the plaintiff and (3) concealed those facts for the purpose of obtaining delay on the part of the plaintiff in filing a cause of action against the defendant. Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, 281 Conn. 84, 105, 912 A.2d 1019 (2007). “Our Supreme Court has stated that [t]o establish that the [defendant] had fraudulently concealed the existence of [the plaintiffs] cause of action and so had tolled the statute of limitations, the [plaintiff] had the burden of proving that the [defendant was] aware of the facts necessary to establish [the] cause of action . . . and that [the defendant] had intentionally concealed those facts from the [plaintiff]. . . . [Additionally], the [defendant’s] actions must have been directed to the very point of obtaining the delay [in filing the action] of which [the defendant] afterward [seeks] to take advantage by pleading the statute.” (Internal quotation marks omitted.) Stuart v. Snyder, supra, 125 Conn. App. 512-13.

The plaintiff argues that the defendant wrongly suggests that the plaintiff bore the burden of proof on his pleading in avoidance. Rather, he argues, the defendant, who was the movant in this case, needed to produce an affidavit to challenge the plaintiffs pleading in avoidance of the statutes of limitations defense. The defendant argues that before it had any obligation to rebut the plaintiffs pleading in avoidance, the plaintiff was required to offer proof in support of his pleading, and he failed to do so, thereby rendering summary judgment appropriate because there were no disputed issues of material fact and it was entitled to judgment as a matter of law, the applicable statutes of limitations having run on the plaintiffs causes of action.

“Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact ... a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue.” (Citation omitted; internal quotation marks omitted.) Connell v. Colwell, 214 Conn. 242, 246, 571 A.2d 116 (1990). “The party opposing summary judgment must present a factual predicate for his argument to raise a genuine issue of fact.” (Internal quotation marks omitted.) Weiner v. Clinton, 106 Conn. App. 379, 386, 942 A.2d 469 (2008).

In his pleading in avoidance, the plaintiff alleged in relevant part that “[t]he defendant fraudulently concealed from the plaintiff its wrongdoing set forth in the plaintiffs complaint that gives rise to the plaintiffs causes of action in violation of ... § 52-595 and as a result is barred from asserting statute of limitations defenses.” We agree with the defendant’s contention that the plaintiff failed to allege the necessary facts to avoid the application of §§ 52-577 and 42-110g (f). Additionally, even if we viewed the plaintiffs pleading broadly, the plaintiff failed to present a factual predicate to raise a genuine issue of material fact. See Weiner v. Clinton, supra, 106 Conn. App. 386. The plaintiff merely alleges in his pleading in avoidance that the defendant had fraudulently concealed its wrongdoing. There is no allegation, nor is there a factual predicate, to establish that the defendant had fraudulently concealed the existence of the plaintiff s causes of action with the intention of delaying the plaintiff in filing the action. See Stuart v. Snyder, supra, 125 Conn. App. 512-13; with respect to the plaintiffs CUTPA claim, see also Bartone v. Robert L. Day Co., 232 Conn. 527, 532 n.4, 656 A.2d 221 (1995) (“[b]ecause we conclude that the plaintiffs have failed to prove fraudulent concealment, we need not consider their contention that, despite our decision in Fichera v. Mine Hill Corp., [supra, 207 Conn. 215-17], the statute of limitations contained in CUTPA; General Statutes § 42-1 lOg [f]; may be avoided by proof of such fraudulent concealment”).

On the basis of the foregoing, we conclude that the applicable statutes of limitations had not been tolled by the actions of the defendant. Accordingly, the court properly granted the defendant’s motion for summary judgment.

The judgment is affirmed.

In this opinion the other judges concurred.

       We note that counsel informed this court at oral argument that the correct spelling of the plaintiffs last name is Flanery. We will refer to the plaintiff as John D. Flannery in conformity with the pleadings and the judgment file for purposes of this opinion.

       Attorney Glenn MacGrady and Pepe & Hazard, LLP, also were defendants in this case. Partial summary judgment was rendered in their favor on June 18, 2009, and the plaintiff, thereafter, withdrew all remaining claims against these defendants. Accordingly, MacGrady and Pepe & Hazard, LLP, are not parties to this appeal. We will refer only to Singer Asset Finance Company, LLC, as the defendant for purposes of this opinion.

       The plaintiff points out: “It is worth repeating in this public document that the evidence supports the conclusion that the law firm of Pepe & Hazard, at the time inexperienced in the tax matters, was not specifically aware of what attorney MacGrady was up to with [the defendant]. That when the law firm became aware of what its employee was doing with [the defendant] that it put a stop to it and soon after discharged MacGrady.”

       For purposes of this appeal, we assume, without deciding, that Connecticut recognizes an action for aiding and abetting in the breach of a fiduciary duty. See Efthimiou v. Smith, 268 Conn. 499, 504-507, 846 A.2d 222 (2004) (discussing claim of aiding and abetting in breach of fiduciary duty).

       There were other counts in the complaint directed toward MacGrady and Pepe & Hazard that are not relevant to this appeal. See footnote 2 of this opinion.

       The plaintiffs pleading in avoidance provided: “The defendant aided and abetted a fiduciary in concealing from the plaintiff and/or failing to make proper disclosures to the plaintiff of the wrongdoing set forth in the plaintiffs [c]omplaint that gives rise to the plaintiffs causes of action and as a result is barred and estopped from asserting statute of limitations defenses. The defendant fraudulently concealed from the plaintiff its wrongdoing set forth in the plaintiffs complaint that gives rise to the plaintiffs causes of action in violation of [General Statutes] § 52-595 and as a result is barred from asserting statute of limitations defenses.”

       Practice Book § 17-47 provides: “Should it appear from the affidavits of a party opposing the motion that such party cannot, for reasons stated, present facts essential to justify opposition, the judicial authority may deny the motion for judgment or may order a continuance to permit affidavits to be obtained or discovery to be had or may make such other order as is just.”

       General Statutes § 52-595 provides: “If any person, liable to an action by another, fraudulently conceals from him the existence of the cause of such action, such cause of action shall be deemed to accrue against such person so liable therefor at the time when the person entitled to sue thereon first discovers its existence.”


author: BEACH, J.

text:
    STATE OF CONNECTICUT v. TERRY SEAY
    (AC 31692)
    Gruendel, Beach and Robinson, Js.

      Argued January 7 —
    officially released May 10, 2011

      Glenn W. Falk, special public defender, for the appellant (defendant).

      Lawrence J. Tytla, supervisory assistant state’s attorney, with whom, on the brief, was Michael L. Regan, state’s attorney, for the appellee (state).
   Opinion

BEACH, J.

The defendant, Terry Seay, appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4). The defendant claims that the judgment should be modified to reflect a conviction of the lesser included offense of robbery in the second degree. We affirm the judgment of the trial court.

The following facts, which the jury reasonably could have found, and procedural history are relevant to this appeal. On November 11, 2008, shortly after 2 p.m., the defendant entered a wine and spirits shop in the town of Groton. The defendant, who was carrying a blue duffle bag with green handles, approached a cash register attended by Michelle Malone. The defendant placed the duffle bag on the counter and unzipped it, revealing to Malone “some kind of firearm inside . . . .” The bag appeared to Malone to be approximately two feet long, and the firearm appeared to be as long as the bag itself. In a soft voice, the defendant told Malone, “[y]ou see what I have in this bag. Now, you’re going to open your register.” Malone removed the cash drawer from the register and placed the drawer on the counter. The defendant instructed Malone and another employee to lie on the ground and count to 100. The defendant took $740 from the register and left the store. Malone activated a security alarm. Officers with the Groton town police department responded to the scene.

Following an investigation, the police obtained and executed a search warrant for, inter alia, the defendant’s residence. In a garbage can outside the duplex where the defendant resided, the police found a blue duffle bag with green handles, matching the duffle bag that the police had seen in security camera footage of the robbery. Inside the duffle bag was a $1 bill. The bag apparently had originally contained a badminton set, which was found in the defendant’s basement. The police also searched the hedge line on the border of the defendant’s property. They found, hidden underneath leaves, broken pieces of what, when put together, was described as a long “facsimile firearm, like a BB gun . . . .” The facsimile firearm contained metal parts that had been covered in black electrical tape.

The defendant was arrested and charged with, inter alia, robbery in the first degree. At trial, after a discussion in chambers, the court stated on the record that it intended to instruct the jury on the lesser included offense of robbery in the second degree and to give the jury an affirmative defense instruction. The court instructed the jury on the elements of robbery in the first degree and robbery in the second degree. The court further instructed the jury that if it was to find that the state had failed to prove beyond a reasonable doubt any one or more of the essential elements of robbery in the first degree or that the defendant had proven the affirmative defense of inoperability, by a preponderance of the evidence, then it was to find the defendant not guilty of robbery in the first degree. If it so found, then the jury was to determine whether the defendant is guilty of robbery in the second degree.

The jury returned a verdict of guilty on the count of robbery in the first degree. The defendant moved for a judgment of acquittal on the ground that the inoperability of the firearm had been established by a preponderance of the evidence. The court deferred ruling on the motion until sentencing, at which time the court denied the motion. The court sentenced the defendant to fifteen years incarceration, execution suspended after twelve years, and five years probation. This appeal followed.

The defendant claims that the judgment of conviction of robbery in the first degree should be reversed and the case remanded with direction to modify the judgment to reflect a conviction of robbery in the second degree. The defendant argues that the judgment should be so modified because the affirmative defense of inoperability of the weapon used during the robbery indisputably was proven by a preponderance of the evidence. We are not persuaded.

The defendant essentially asks us to reverse the judgment of conviction of robbery in the first degree and to modify the judgment to reflect a conviction of the lesser included offense of robbery in the second degree. “This court has modified a judgment of conviction after reversal, if the record establishes that the jury necessarily found, beyond a reasonable doubt, all of the essential elements required to convict the defendant of a lesser included offense.” State v. Greene, 274 Conn. 134, 160, 874 A.2d 750 (2005), cert. denied, 548 U.S. 926, 126 S. Ct. 2981, 165 L. Ed. 2d 988 (2006).

“A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 ... he or another participant in the crime ... (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm, except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a weapon from which a shot could be discharged. . . .” General Statutes § 53a-134 (a); see also General Statutes § 53a-12 (b) (defendant has burden of estabhshing affirmative defense by preponderance of evidence).

The affirmative defense of inoperability operates only to reduce a conviction of robbery in the first degree. Section 53a-134 (a) specifically provides that “[njothing contained in this subdivision shall constitute a defense to a prosecution for, or preclude a conviction of, robbery in the second degree, robbery in the third degree or any other crime.” General Statutes § 53a-135 (a) provides: “A person is guilty of robbery in the second degree when he commits robbery as defined in section 53a-133 and ... in the course of the commission of the crime ... he ... (2) displays or threatens the use of what he represents by his words or conduct to be a deadly weapon or a dangerous instrument.”

The defendant argues that his conviction of robbery in the first degree should be modified to reflect a conviction of the lesser included offense of robbery in the second degree because the affirmative defense of inoperability was proven at trial by a preponderance of the evidence. He contends that there was no evidence that the facsimile firearm found by the police was operable and that there was no evidence that a gun other than the facsimile firearm was the one used during the robbery. He notes that the uncontradicted evidence demonstrates that, following the robbery, dispersed parts of a facsimile firearm were found in close proximity to the duffle bag and argues that the only reasonable explanation for this is that he had used the facsimile gun during the robbery.

In this case, the jury necessarily found that the state met its burden of proving the elements of robbery in the first degree and that the defendant did not prove the affirmative defense of inoperability by a preponderance of the evidence. Evidence was presented at trial that indicated that something that resembled a firearm was used by the defendant during the robbery. As the defendant points out, the evidence demonstrated that near the duplex where he resided, the police found a facsimile firearm in proximity to a blue duffle bag with green handles. During closing argument, the prosecutor suggested that the facsimile firearm likely was used by the defendant during the robbery. The prosecutor argued that “[w]e’ve introduced a facsimile firearm into evidence. We can’t prove beyond a reasonable doubt that that’s the one that’s in the bag, but it’s a reasonable likelihood that that is the one that was in the bag. I think common sense would tell you that that probably was.”

Although the jury reasonably could have found that the firearm found by the police was the same item used by the defendant during the robbery, the jury was not obligated so to find. It was within the province of the jury not to believe by a preponderance of the evidence that the facsimile firearm found by the police was used by the defendant during the robbery. See, e.g., State v. Medina, 228 Conn. 281, 310, 636 A.2d 351 (1994) (jury free to accept or reject, in whole or in part, evidence presented). We note that Malone did not testify that the facsimile firearm found by the police was the same weapon used during the robbery. Operability is not an element of robbery in the first degree. It was the defendant’s burden to prove inoperability and the jury reasonably could have determined that the defendant had not proven the affirmative defense of inoperability by a preponderance of the evidence. Accordingly, we decline the defendant’s invitation to modify the judgment to reflect a conviction of robbery in the second degree and to remand the case for resentencing accordingly.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant was also convicted of larceny in the fourth degree in violation of General Statutes § 53a-125. The defendant does not challenge that conviction on appeal.

       The defendant was also charged with, and found guilty of, larceny in the fourth degree. See footnote 1 of this opinion.

       General Statutes § 53a-133 provides: “A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.”

       The state meets its burden of proof regarding robbery in the first degree by proving beyond a reasonable doubt that, inter alia, the defendant displayed or threatened the use of what he represented to be a firearm. See General Statutes § 53a-134 (a) (4). If the defendant so chooses and the evidence permits, he may assert the affirmative defense of inoperability. See General Statutes § 53a-134 (a). “Because inoperability is an affirmative defense, the defendant was required to raise and prove it by a preponderance of the evidence.” State v. Ortiz, 71 Conn. App. 865, 870, 804 A.2d 937, cert. denied, 261 Conn. 942, 808 A.2d 1136 (2002). Proving the defense by a preponderance of the evidence results in a conviction of robbery in the second degree.


author: PER CURIAM.

text:
    LUIS A. SALAMAN v. COMMISSIONER OF CORRECTION
    (AC 31729)
    Gruendel, Beach and Alvord, Js.
    Submitted on briefs March 11 —
    officially released May 10, 2011

      Karen E. Haley, special public defender, filed a brief for the appellant (petitioner).

      Michael Dearington, state’s attorney, LeonF. Dalbec, Jr., senior assistant state’s attorney, and David Clifton, assistant state’s attorney, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Luis A. Salaman, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. We dismiss the petitioner’s appeal.

The petitioner was involved in a shooting incident on August 30,2003. He thereafter was charged with and, following a jury trial, convicted of attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-59 (a) (5), and carrying a pistol or revolver without a permit in violation of General Statutes § 29-35. The trial court sentenced the petitioner to a total effective term of fifteen years incarceration. The petitioner appealed directly from that judgment of conviction, which this court affirmed. See State v. Salaman, 97 Conn. App. 670, 905 A.2d 739, cert. denied, 280 Conn. 942, 912 A.2d 478 (2006).

On April 28, 2009, the petitioner filed a five count amended petition for a writ of habeas corpus. The first four counts alleged ineffective assistance of trial counsel. In count five, the petitioner alleged that the state suppressed exculpatory evidence at his criminal trial in violation of his right to due process under Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). His central contentions were that the state failed to disclose the existence of the victim’s 911 call to police on the night of the shooting and, somewhat paradoxically, that his trial counsel rendered ineffective assistance in failing to review that 911 call in investigating the case. A habeas trial followed, at which the petitioner argued that the victim’s 911 call indicated that the victim was intoxicated at the time of the call, a claim he renews in this appeal. In response, the court requested that the 911 call be played. The October 26, 2009 transcript reflects that petitioner’s exhibit 3, which is an audio recording of the 911 call in question, was played in court on a clerk’s computer. After listening to the victim’s 911 call, the court stated that “I cannot conclude from listening to that tape that [the victim] is intoxicated,” a finding the petitioner challenges as clearly erroneous in this appeal.

At the conclusion of the habeas trial, the court rejected all of the petitioner’s claims. By oral decision dated October 27, 2009, the court concluded that the petitioner had failed to establish ineffective assistance on the part of trial counsel pursuant to Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The court further found that the petitioner had not established a Brady violation. It subsequently denied the petition for certification to appeal, and this appeal followed.

Before we may reach the merits of the petitioner’s claim that the court improperly decided the issues raised in his petition for a writ of habeas corpus, he first must establish that the court abused its discretion in denying the petition for certification to appeal. See Sadler v. Commissioner of Correction, 90 Conn. App. 702, 703, 880 A.2d 902, cert. denied, 276 Conn. 902, 884 A.2d 1025 (2005). To do so, a petitioner must demonstrate “that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Internal quotation marks omitted.) Simms v. Warden, 230 Conn. 608, 616, 646 A.2d 126 (1994). After careful review of the record and briefs, including listening to the audio recording of the victim’s 911 call, we conclude that the petitioner has not met that substantial burden. See Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991); Simms v. Warden, supra, 616.

The appeal is dismissed.


author: DiPENTIMA, C. J.

text:
    STATE OF CONNECTICUT v. BRUCE MILLER
    (AC 31340)
    DiPentima, C. J., and Robinson and Bear, Js.
    Argued February 10 —
    officially released May 10, 2011

      Kirstin B. Coffin, special public defender, for the appellant (defendant).

      Emily Graner Sexton, special deputy assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Vicki Melchiorre, senior assistant state’s attorney, for the appellee (state).
   Opinion

DiPENTIMA, C. J.

The defendant, Bruce Miller, appeals from the judgment of conviction, rendered after a jury trial, of assault in the second degree in violation of General Statutes § 53a-60 (a) (2), threatening in the second degree in violation of General Statutes § 53a-62 (a) (1) and carrying a dangerous weapon in violation of General Statutes § 53-206 (a). On appeal, the defendant claims that (1) the evidence was insufficient to support his conviction of assault in the second degree and (2) he was denied due process of law as a result of prosecutorial impropriety. We disagree and, accordingly, affirm the judgment of conviction.

The jury reasonably could have found the following facts. On the morning of April 27, 2008, the defendant and his wife, Emily Bassell, had an argument at their home in East Hartford. This argument became physical when the defendant pushed Bassell to the ground. She then left the apartment, went to her cousin’s house and telephoned a friend, Micandre Brown, who told her to wait at a local drugstore where he would pick her up.

At the drugstore, Bassell met Brown, who offered to take her to her mother’s home. While waiting for Brown to unlock his motor vehicle for her, Bassell saw the defendant run from the drugstore toward them. Armed with a silver knife with a four to five inch blade, the defendant physically confronted Brown. He repeatedly swung the knife at Brown. During the incident, the defendant threatened to kill Brown. Brown managed to resist the defendant’s attack but sustained a one-half inch laceration to his thumb. The defendant fled from the scene and, after being contacted by investigating police officers, went to the police station where he was taken into custody.

Following a jury trial, the defendant was convicted of assault in the second degree, threatening in the second degree and carrying a dangerous weapon. The court sentenced the defendant to a total effective term of five years incarceration, suspended after three years, and five years probation. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the evidence was insufficient to sustain his conviction of assault in the second degree. Specifically, he argues that the state presented insufficient evidence that he caused injury to Brown. The state counters that there was “ample evidence from which the jury could have found beyond a reasonable doubt that the defendant caused Brown’s injury.” We agree that there was sufficient evidence to support the defendant’s conviction of assault in the second degree.

We begin our analysis by setting forth our standard of review. “In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

“We note that the [finder of fact] must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . If it is reasonable and logical ... to conclude that a basic fact or an inferred fact is true, the [fact finder] is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. . . .

“Moreover, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. . . . It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. ... In evaluating evidence, the [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The [finder of fact] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [finder of fact’s] verdict of guilty. . . .

“Questions of whether to believe or to disbelieve a competent witness are beyond our review. As a reviewing court, we may not retry the case or pass on the credibility of witnesses. . . . We must defer to the [finder] of fact’s assessment of the credibility of the witnesses that is made on the basis of its firsthand observation of their conduct, demeanor and attitude.” (Internal quotation marks omitted.) State v. Pettigrew, 124 Conn. App. 9, 30-31, 3 A.3d 148, cert. denied, 299 Conn. 916, 10 A.3d 1052 (2010); see also State v. Calabrese, 279 Conn. 393, 402-403, 902 A.2d 1044 (2006).

Section 53a-60 (a) provides: “A person is guilty of assault in the second degree when ... (2) with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument other than by means of the discharge of a firearm . . . .” The defendant challenges only the element of causing a physical injury to another person. See State v. Stavrakis, 88 Conn. App. 371, 389, 869 A.2d 686, cert. denied, 273 Conn. 939, 875 A.2d 45 (2005).

In the present case, Bassell testified that the defendant ran toward the vehicle and started swinging a knife at Brown. Bassell saw the defendant make contact with Brown, and then she saw blood on the window of the vehicle from Brown’s having been cut. Brown testified that the defendant attempted to stab him in the chest. Brown stated that he was cut during the incident, but he did not realize it during the struggle with the defendant. Afterward, he noticed blood on the ground, the driver’s seat and the passenger window of his motor vehicle. Brown further stated that he had received a one-half inch cut on his thumb. Last, Salvatore Dicello, an employee of the East Hartford fire department, testified that he had treated Brown’s lacerated thumb with antibiotic ointment and a bandage, and that the wound was not actively bleeding by the time he had arrived.

Given this evidence, the jury reasonably could have concluded that during the struggle, Brown received a laceration on his thumb from the knife wielded by the defendant. Accordingly, we conclude that defendant’s conviction of assault in the second degree was supported by sufficient evidence.

II

The defendant next claims that he was denied due process of law as a result of prosecutorial impropriety. Specifically, he argues that comments made by the prosecutor during rebuttal closing argument were improper and amounted to a denial of due process. We disagree.

During rebuttal closing argument, the prosecutor made the following statements to the jury: “You view the testimony of [the defendant] . . . with the proper focus. This man knows the system, he knows how to play the game, he knows how he has to present himself on the witness stand to try and convince you folks that he’s telling the truth and not the other witnesses in this case. I submit to you that the credibility of the other witnesses was clear and should convince you that the state has proven all of these counts beyond a reasonable doubt. Please return guilty verdicts, ladies and gentlemen. Thank you.”

The court excused the jury, and the defendant raised an objection to the state’s comments. Specifically, he stated: “That the defendant knows the system and knows how to play the game. I object to that — to those comments. They’re inflammatory. They’re facts that are not in evidence.” The prosecutor stated that the basis for her comment was the evidence that the defendant was a six time convicted felon and that therefore he knows how to play the system. After further argument, the court stated that it would address the issue with the jury.

During the jury instructions, the court addressed the comments made by the prosecutor to which the defendant had objected. “Now, the next part of this instruction is not written because it’s in response to what just occurred during the argument. We don’t try people in Connecticut on the quote, bad man theory. Prior convictions for property crimes go only to the credibility of the witness and provide no proof of this defendant’s violent tendencies or lack of them, nor do they display any special ability to, quote, game the system, unquote. That comment that was made is stricken.”

On appeal, the defendant argues that there was no evidence to suggest that he had any special knowledge of “the system” or “how to the play the game . . . .” He further claims that the comment implied that he was lying to the jury. The state counters that, assuming such comments are improper, the defendant was not denied due process because there is no reasonable likelihood that the jury’s verdict would have been different absent these comments.

“Prosecutorial [impropriety] claims invoke a two step analysis. First, the reviewing court must determine whether the challenged conduct did, in fact, constitute [an impropriety]. Second, if [an impropriety] occurred, the reviewing court must then determine if the defendant has demonstrated substantial prejudice. ... In order to demonstrate this, the defendant must establish that the trial as a whole was fundamentally unfair and that the [impropriety] so infected the trial with unfairness as to make the conviction a denial of due process. . . .

“Because the claimed prosecutorial [impropriety] occurred during closing arguments, we advance the following legal principles. [P]rosecutorial [impropriety] of a constitutional magnitude can occur in the course of closing arguments. ... In determining whether such [an impropriety] has occurred, the reviewing court must give due deference to the fact that [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument. . . . Thus, as the state’s advocate, a prosecutor may argue the state’s case forcefully, [provided the argument is] fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom.” (Citation omitted; internal quotation marks omitted.) State v. Gilbert I., 106 Conn. App. 793, 799-800, 944 A.2d 353, cert. denied, 287 Conn. 913, 950 A.2d 1289 (2008); see also State v. D’Haity, 99 Conn. App. 375, 383-84, 914 A.2d 570, cert. denied, 282 Conn. 912, 924 A.2d 137 (2007).

In light of the state’s assumption that the trial court properly determined that the comments were improper, we address the second prong of the prosecutorial impropriety test, that is, whether the comments of the prosecutor amount to a denial of due process. “An appellate court’s determination of whether any improper conduct by the prosecutor violated the defendant’s right to a fair trial is predicated on the factors established in State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987). Those factors include the extent to which the [impropriety] was invited by defense conduct or argument . . . the severity of the [impropriety] . . . the frequency of the [impropriety] . . . the centrality of the [impropriety] to the critical issues in the case . . . the strength of the curative measures adopted . . . and the strength of the state’s case.” (Internal quotation marks omitted.) State v. Souza, 125 Conn. App. 529, 535, 8 A.3d 1131 (2010); see also State v. Outing, 298 Conn. 34, 80, 3 A.3d 1 (2010), cert. denied, U.S. , 131 S. Ct. 1479, 179 L. Ed. 2d 316 (2011).

The state concedes that (1) the defendant did not invite the impropriety, (2) the defendant objected to the comments and (3) the centrality of the comments related to a critical issue in the case, and, therefore, these factors weigh in favor of the defendant. We note that the comments occurred only once and, therefore, were not frequent. See, e.g., State v. Fauci, 282 Conn. 23, 51, 917 A.2d 978 (2007); see also State v. Jarrett, 82 Conn. App. 489, 505, 845 A.2d 476, cert. denied, 269 Conn. 911, 852 A.2d 741 (2004). Likewise, the isolated comments regarding the defendant’s credibility were not severe. There was evidence of the defendant’s criminal history, and we note that the court instructed the jury that it was the sole judge of the facts and credibility of witnesses.

Furthermore, the court issued a specific curative instruction shortly after the prosecutor’s comments. In State v. Camacho, 282 Conn. 328, 385, 924 A.2d 99, cert. denied, 552 U.S. 956, 128 S. Ct. 388, 169 L. Ed. 2d 273 (2007), our Supreme Court stated that “[w]e have previously recognized that a prompt cautionary instruction to the jury regarding improper prosecutorial remarks or questions can obviate any possible harm to the defendant. . . . Moreover, [i]n the absence of an indication to the contrary, the jury is presumed to have followed [the trial court’s] curative instructions.” (Internal quotation marks omitted.) See also State v. James G., 268 Conn. 382, 420, 844 A.2d 810 (2004). Finally, the state’s case was strong; both Bassell and Brown testified as to their observations of the assault. There was testimony regarding the medical treatment received by Brown. After considering the challenged comments in light of the factors delineated in Williams, we conclude that the defendant was not deprived of a fair trial. See State v. Jarrett, supra, 82 Conn. App. 505 (“[although certain remarks made by the prosecutor, from hindsight, may be deemed imprudent, such isolated and brief episodes as occurred here fail to implicate the denial of the defendant’s constitutional right to due process” [internal quotation marks omitted]).

The judgment is affirmed.

In this opinion the other judges concurred.

       At trial, the defendant did not raise any objection to the curative instruction.

       At oral argument before this court, the defendant expressly stated that his only claim of prosecutorial impropriety was related to these comments.

       In State v. Thompson, 266 Conn. 440, 479, 832 A.2d 626 (2003), our Supreme Court observed that in detemüning whether a comment was severe, “we consider it highly significant that defense counsel failed to object to any of the improper remarks . . .

       “We note . . . that a general instruction does not have the same curative effect as a charge directed at a specific impropriety, particularly when the misconduct has been more than an isolated occurrence.” (Internal quotation marks omitted.) State v. Warholic, 278 Conn. 354, 401, 897 A.2d 569 (2006). The court’s instruction in the present case was directed at a specific and isolated comment by the prosecutor, thereby strengthening its curative effect.


text:
    MATTIE AND O’BRIEN CONTRACTING COMPANY, INC. v. RIZZO CONSTRUCTION POOL COMPANY
    (AC 31514)
    DiPentima, C. J., and Bishop and Dupont, Js.

      Argued November 29, 2010 —
    officially released May 10, 2011

      David L. Gussak, for the appellant (defendant).

      John C. Wirzbicki, for the appellee (plaintiff).
   Opinion

DiPENTIMA, C. J.

The defendant, Rizzo Construction Pool Company, doing business as Rizzo Pool, appeals from the judgment of the trial court in favor of the plaintiff, Mattie & O’Brien Contracting Company, Inc., rendered after a hearing by an attorney fact finder, in accordance with the recommendations of the attorney fact finder. On appeal the defendant claims that (1) the court improperly denied its motion for a stay of proceedings because of an arbitration clause in the 2002 contract between the parties, (2) the attorney fact finder improperly denied the defendant’s oral motion to amend its answer to conform the pleadings to its offer of proof and (3) the attorney fact finder improperly precluded evidence offered by the defendant as irrelevant. We affirm the judgment of the trial court.

The following facts, as found by the attorney fact finder, and procedural history are relevant to the defendant’s appeal. The plaintiff entered into a contract with the United States Navy to act as general contractor to perform repairs and maintenance at the Groton submarine base. In 2002, the plaintiff subcontracted with the defendant to repair a pool at the base. The defendant then subcontracted with RenoSys Corporation (RenoSys) to repair the lining of the pool.

After the defendant performed a substantial portion of the work required under the 2002 contract, a dispute occurred about the quality of both the defendant’s and the plaintiffs performance. In 2004, the plaintiff and the defendant entered into a settlement that resulted in a mutual release and indemnification agreement. As part of the 2004 settlement agreement, the plaintiff made payments to the defendant and RenoSys. The 2004 settlement agreement expressly preserved the defendant’s warranty of the work performed under the 2002 contract.

Thereafter, a problem developed with the pool lining installed by RenoSys. The plaintiff asked the defendant to honor its warranty and to repair the lining of the pool, but the defendant refused. The plaintiff then requested that RenoSys honor its warranty. RenoSys claimed that it had not been paid by the defendant in full for its performance under the 2002 contract and refused to honor the warranty until it was paid. The plaintiff then paid RenoSys, and RenoSys repaired the pool lining.

In September, 2006, the plaintiff commenced the present action against the defendant to recover the amount paid to RenoSys. The defendant’s answer denied that it owed money to RenoSys and alleged insufficient knowledge as to the existence of a warranty that would require the defendant to repair the pool lining. In addition, its special defense alleged that “[t]he [p]laintiff voluntarily made payments to RenoSys despite the objection of [defendant and [defendant did not agree that RenoSys was owed monies or that it should be paid to honor its warranties. In fact, no monies were due RenoSys which had not performed its contractual work.” The defendant did not raise the existence of a mandatory arbitration clause as a special defense.

On December 10, 2007, the plaintiff filed a certificate of closed pleadings. Pursuant to Practice Book § 23-53, the case was referred to an attorney fact finder. The fact-finding hearing initially was scheduled for October, 2008. On September 11, 2008, the defendant successfully moved for a continuance. The hearing was held before an attorney fact finder, David M. Moore, on December 1, 2008, and April 13, 2009.

At the start of the hearing, the plaintiffs counsel called Robert Mattie, a principal of the plaintiff, as his first witness. During the examination of Mattie, the defendant’s counsel first notified the court and the plaintiff of the existence of a mandatory arbitration clause in the 2002 contract between the plaintiff and the defendant. The plaintiffs counsel objected to questioning by the defendant’s counsel of the witness about the arbitration clause because the arbitration clause had not been pleaded as a special defense and there had been no motion to refer the case to arbitration.

In response, the defendant’s counsel orally moved to conform its pleadings to the proof offered to include the arbitration clause as a special defense. The attorney fact finder declined to rule on the motion to conform the pleadings. During the recess, both parties consulted with the trial judge who instructed the parties to proceed but allowed the defendant to file a motion to stay the proceedings. Seventeen days later, the defendant filed a motion to stay the proceedings until the conclusion of arbitration. The court determined that the defendant had waived the arbitration clause by its inaction and denied the defendant’s motion.

Following the close of the hearing, the attorney fact finder recommended that judgment be rendered in favor of the plaintiff. Judgment was rendered in accordance with the fact finder’s report. This appeal followed.

I

We first address the claim that the court improperly denied the defendant’s motion to stay the proceedings on the basis of its finding that the defendant waived its right to arbitration. Specifically, the defendant argues that it never agreed to a waiver, and, therefore, the court’s finding was clearly erroneous. We disagree.

We begin our analysis by setting forth the relevant statutes. General Statutes § 52-409 provides: “If any action for legal or equitable relief or other proceeding is brought by any party to a written agreement to arbitrate, the court in which the action or proceeding is pending, upon being satisfied that any issue involved in the action or proceeding is referable to arbitration under the agreement, shall, on motion of any party to the arbitration agreement, stay the action or proceeding until an arbitration has been had in compliance with the agreement, provided the person making application for the stay shall be ready and willing to proceed with the arbitration.” This statute “provides relief when a party to a contract that contains an arbitration clause desires arbitration of a dispute, and the other party, instead of proceeding with arbitration, institutes a civil action to resolve the dispute. The party desiring arbitration can then seek a stay of the civil action.” (Emphasis in original.) Success Centers, Inc. v. Huntington Learning Centers, Inc., 223 Conn. 761, 768, 613 A.2d 1320 (1992). Furthermore, enforcement of arbitration clauses is favored to avoid the delay and expense of litigation. Waterbury Teachers Assn. v. Waterbury, 164 Conn. 426, 434, 324 A.2d 267 (1973).

Our case law makes it clear that a party may waive an arbitration clause by its conduct. “It is, of course, true that an arbitration clause may be waived by the parties or by the one entitled to its benefit. . . . Thus, unjustifiable delay in seeking arbitration may warrant a finding of waiver. . . . The same result follows from the going to trial without insisting upon the arbitration condition.” (Internal quotation marks omitted.) Id., 435.

We now turn to the applicable standard of review. “Our review of the trial court’s determination is guided by the principle that, because waiver and estoppel are questions of fact ... we will not disturb the trial court’s findings unless they are clearly erroneous.” (Citation omitted.) Hanover Ins. Co. v. Fireman’s Fund Ins. Co., 217 Conn. 340, 350, 586 A.2d 567 (1991). “Therefore, the trial court’s conclusions must stand unless they are legally or logically inconsistent with the facts found or unless they involve the application of some erroneous rule of law material to the case.” (Internal quotation marks omitted.) AFSCME, Council 4, Local 704 v. Dept. of Public Health, 272 Conn. 617, 622-23, 866 A.2d 582 (2005).

In its order denying the motion, the court found that, as a result of its inaction, the defendant had waived any rights it had to arbitration. It specifically noted the following procedural history. The action was commenced in September, 2006, the pleadings were closed in December, 2007, and the hearing date was originally set for October, 2008, and was continued, at the defendant’s request, until December, 2008. The defendant waited until seventeen days after the first day of the hearing to file a motion for stay of proceedings, pursuant to § 52-409. Here, the defendant raised the issue of arbitration for the first time on the first day of the hearing. After the attorney fact finder presiding over the hearing determined that he was not empowered to grant a stay of proceedings, the defendant then waited an additional seventeen days to file a motion with the court. The defendant participated in two years of pretrial activities, including requesting a two month continuance, and failed to file a proper motion for stay until the fact-finding hearing was half completed.

The court’s finding that the defendant’s delay in filing a motion to stay the proceedings constituted a waiver of the arbitration clause was not clearly erroneous. Thus, we conclude this claim must fail.

II

The defendant next claims that the attorney fact finder improperly denied its oral motion to amend its pleadings to conform to the offer of proof. We decline to address the merits of this claim because the defendant has briefed it inadequately.

“We are not obligated to consider issues that are not adequately briefed.” (Internal quotation marks omitted.) Connecticut Coalition Against Millstone v. Connecticut Siting Council, 286 Conn. 57, 87, 942 A.2d 345 (2008). The defendant’s brief provides minimal citation to authority and no analysis of our rules of practice as applied to the facts of this case. See O’Connell, Flaherty & Attmore, LLC v. Doody, 124 Conn. App. 1, 8, 3 A.3d 969 (2010). Although the defendant claims that the attorney fact finder did not follow the criteria for allowing amendments pursuant to Practice Book § 10-62, the defendant never explains what the criteria are nor does it cite to any cases explaining how the criteria for Practice Book § 10-62 are applied. In addition, the defendant does not provide a citation to any portion of the transcript in which it moved to amend its special defense, other than as to the arbitration clause; see part I of this opinion; nor were we able to find one. See Practice Book § 67-4; see, e.g., Northeast Ct. Economic Alliance, Inc. v. ATC Partnership, 272 Conn. 14, 44 n.20, 861 A.2d 473 (2004); Barry v. Quality Steel Products, Inc., 263 Conn. 424, 447 n.20, 820 A.2d 258 (2003). Accordingly, we decline to review this issue.

III

The defendant’s final claim is that the attorney fact finder improperly excluded as irrelevant certain evidence offered by the defendant. We decline to address the merits of this claim because the defendant has briefed it inadequately.

“The mere assertion in a brief that evidence was improperly excluded, coupled with transcript page references, will not be sufficient.” Roberto v. Honeywell, Inc., 43 Conn. App. 161, 163, 681 A.2d 1011, cert. denied, 239 Conn. 941, 684 A.2d 712 (1996). The defendant does not provide a citation to or set forth a statement of any question, objection, or ruling being challenged. See Practice Book § 67-4 (d) (3). We need not address the defendant’s claim of evidentiary error as this claim has not been presented in accordance with the requirements of our rules of practice. See Fogg v. Wakelee, 196 Conn. 287, 288 n.1, 492 A.2d 511 (1985).

“When raising evidentiary issues on appeal, all briefs should identify clearly what evidence was excluded or admitted, where the trial counsel objected and preserved his rights and why there was error.” Aspiazu v. Orgera, 205 Conn. 623, 636-37 n.5, 535 A.2d 338 (1987). The defendant has not identified any evidence that it claims the attorney fact finder improperly excluded, nor has it provided a citation to the transcript showing any of the defendant’s objections.

Furthermore, the defendant has not adequately explained how the attorney fact finder erred in his rulings. The defendant claims that the attorney fact finder engaged in “evidentiary cherry picking” and improperly narrowed the scope of the defendant’s special defense. The defendant does not cite any portion of the transcript to support either claim other than to say that the fact finder admitted some evidence related to the 2002 contract but excluded other evidence related to the 2002 contract. The defendant’s brief contains only cursory explanations of two authorities, only one of which appears to be generally relevant to this case. A brief containing minimal citation to authority and no citation to the record is inadequate to determine whether the attorney fact finder erred in his evidentiary rulings. See Northeast Ct. Economic Alliance, Inc. v. ATC Partnership, supra, 272 Conn. 44 n.20. Accordingly, we decline to review the merits of this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant also raised and then expressly abandoned in its brief a claim of bias on the part of the attorney fact finder.

       The fact finder noted: “I am a trier of fact of limited jurisdiction in that the statutes, basically, limit what I can do as a finder of fact. We are talking about some fairly significant legal issues which normally would be resolved by a judge of the Superior Court. I am not, as of yet, appointed as a judge of the Superior Court and therefore lack the power to be able to rule on some of the issues that were raised.”

       General Statutes § 52-549r provides in relevant part: “The fact-finders shall proceed to determine the matters in controversy submitted to them, and shall prepare and sign a finding of fact, which shall include an award of damages if applicable. . . .” General Statutes § 52-549p (c) provides: “Such fact-finders shall have the power to: (1) Issue subpoenas for the attendance of witnesses and for the production of books, papers and other evidence, such subpoenas to be served in the manner provided by law for service of subpoenas in a civil action and to be returnable to the fact-finders; (2) administer oaths or affirmations; and (3) determine the admissibility of evidence and the form in which it is to be offered.”

       We also note that amendments pursuant to Practice Book § 10-62 must be made in accordance with the procedures of Practice Book § 10-60. Practice Book § 10-60 (a) (1) permits oral amendments to the pleadings by order of a “judicial authority”; see Burton v. Stamford, 115 Conn. App. 47, 60, 971 A.2d 739, cert. denied, 293 Conn. 912, 978 A.2d 1108 (2009); but an attorney fact finder is not a “judicial authority” and, therefore, may not grant a motion to amend the pleadings. See Practice Book § 1-1 (c).

       In addition, we note that the defendant’s objection to the attorney fact finder’s report did not include the refusal of the attorney fact finder to allow the defendant to amend its pleadings.